Leaving on an advance parole document now counts as a departure from the United States. Here is who is affected and who is not

A person waiting inside the United States for a green card decision could obtain an advance parole document in advance and make a short trip abroad. Over the past 14 years, many people have used it to attend a family funeral or visit a sick parent. On August 13, 2026, the Board of Immigration Appeals, the body that reviews immigration cases, reversed that standard. Leaving on an advance parole document is now a "departure" as the law uses that word. A person who has accumulated a long period out of status may not be able to come back after the trip. Trips already completed, however, are not affected. Here is what changed and whom it concerns, in order.

Leaving on an advance parole document is still "leaving"

"Leaving the United States on an advance parole document is a 'departure' under the provision that bars entry for ten years to a person who was unlawfully present for one year or more."

This is the opening of the August 13, 2026 decision, in plain language.

The Board of Immigration Appeals is the body that reviews whether an immigration judge's decision was correct. When the Board publishes a decision and designates it as precedent, other cases dealing with the same question must follow it. This decision was published in that way.

A person who has applied for a green card from inside the United States and is waiting cannot simply leave. If they do, the application is treated as abandoned. That is why applicants obtain permission from USCIS before leaving. That document is advance parole. With it, the application is not cancelled by the trip. Because a decision often takes years, many people keep this document on hand.

The problem is a separate provision. A person who has accumulated one year or more of unlawful presence and then leaves the United States cannot return for ten years. That provision applies only to a person who has "departed." So the question was whether a trip on advance parole counts as a departure. In 2012, the same Board said it did not. The reasoning was that such a trip is different in nature from an ordinary departure, because the person leaves on the premise that they can return and continue the application already on file.

This time, the Board overruled that 2012 decision. The reason is simple. Nothing in the immigration statute defines "departure," and where nothing is defined, the rule is to read the word in its ordinary sense: to go out, to leave. Nor does the statute carve out any kind of departure. Leaving on advance parole is still leaving.

People who maintained their status are not affected

"A person who was unlawfully present for more than 180 days, departs the United States, and seeks to re-enter within three or ten years is inadmissible."

This is what USCIS added to its travel document guidance when it posted the decision.

This provision concerns people who accumulated time without status. A person who applied for a green card while continuously maintaining student or work status is not the target at all. So statements such as "you should no longer get advance parole" or "if you leave, you are barred for ten years no matter what" are not accurate. What changed is how that trip is counted, not the existence of the advance parole program.

Who should be careful is clear. People whose status lapsed long ago and who later applied through a spouse or child, and people who were living under deferred action and then filed an application. Deferred action is the program that postpones removal for young people who came as children and grew up without status, but that period is not a period of lawful status. In both cases, a long period without status has already accumulated. What the provision counts is the applicant's own days. It looks at the record of the person who filed the application, not the spouse or child who petitioned.

Keep two numbers in mind. What the Board squarely decided was the ten-year provision, which applies to one year or more of unlawful presence. But USCIS, which actually adjudicates, wrote the threshold as 180 days in its guidance. More than 180 days can mean a three-year or ten-year bar. This is not a situation where you can relax because your period is under one year.

You should also know what happens if you are caught by it. Being inadmissible means that when you try to return, you are treated as a person without the right to enter. A green card is issued only to a person who is admissible, so the pending application cannot be completed either. The law does provide a form of relief for people barred from returning this way, but the door is narrow. You must show that a spouse or parent who is a U.S. citizen or permanent resident would suffer extreme hardship, and hardship to a child does not count. Even when the conditions are met, relief is not automatic; the adjudicator looks at the whole picture and decides again. It is not something to rely on in advance when planning a trip.

Trips taken before August 13 are not affected

"We apply this new standard prospectively only."

This is the conclusion the decision reached.

When the Board overturns a long-standing standard, it separately decides whether to apply the new standard to past events. This time it decided to apply it only to future trips. It found no strong reason to undo the situations of people who had acted in reliance on a 14-year-old standard. In fact, it did not apply the new standard to the party in this very case.

So people who have already traveled are not newly disadvantaged by this decision. What is affected is travel on or after August 13, 2026. When this point is reported vaguely, people who have already traveled end up worrying about something they need not.

That said, the Board did not confirm that earlier trips were "not departures." It simply did not apply the new standard. The party in this case was ordered removed in 2006, and the order became final in 2008. With her husband's petition approved, she entered on advance parole in 2024 and the following year asked to have her case reopened. The Board did not decide whether that trip was a departure; it denied the motion as untimely and number-barred. Because this was a case in which a final removal order had been pending for a long time, her situation differs from that of a person waiting normally for a decision.

Check your own record before you leave

"The advance parole document warned that, absent a favorable exercise of discretion, the person could be found inadmissible upon return and be unable to complete the green card application."

The decision cited this as one of its grounds.

Being granted permission is not the same as being safe to leave. The Board itself pointed out that this warning had been printed on the document for a long time. What is at stake under this decision is not the few days of travel but what happens after you return.

Counting your own days out of status is risky. It is not a matter of counting days on a calendar. The result depends on when your status ended and whether any application was pending in the meantime. The most dangerous course is to estimate on your own and decide it will probably be fine.

The safer order is the reverse. Rather than buying the ticket first and gathering documents later, first organize your records of entries and exits, your status-related notices, and the receipt notices for every application you have filed, and then set the date. All three carry printed dates, which prevents the discrepancies that arise when you answer from memory. Events such as a funeral come without warning and leave no time to check, so it is better to organize this once now, even if you have no plans to travel. If you get the conclusion in writing, you will not have to redo the same calculation from scratch when you set a date months later.

Closing

There are three things you can do now. First, if a trip you already took is on your mind, check the date. If it was before August 13, 2026, it is not covered by this decision. But since the Board did not confirm that such trips were fine, it is better to get advice if something about it concerns you.

Second, if you plan to travel, organize your record before departure. You need to look at whether there was any period out of status, how long it was, and whether an old removal order is still unresolved.

Third, if you already hold an advance parole document, reread it to see whether it carries a warning to the same effect. Such warnings existed before this decision, and this decision has made them the actual standard. This is not advice to give up the trip. It is advice to finish the calculation before you leave.

Disclaimer: This column is provided for general informational purposes only and does not constitute legal advice for any specific case. For matters concerning your individual immigration situation, please consult an immigration attorney.

Law Office of Jin D. Cho, P.C.

NEW YORK OFFICE (Flushing) 35-24 154th Street, Flushing, NY 11354

(T) 718-353-2699 (F) 718-353-8132

NEW JERSEY OFFICE 560 Sylvan Avenue, 3Fl., Englewood Cliffs, NJ 07632

(T) 201-449-0009