New US Travel Rule Puts Some Kenyans at Risk of 3 to 10 Year Bans

A new US immigration ruling could expose some Kenyans and other immigrants who have accumulated unlawful presence to three-year or 10-year bars if they leave the country using Advance Parole.

The change follows a decision issued on 13 August 2026 by the Board of Immigration Appeals (BIA), which overturned a 2012 precedent on how travel under Advance Parole is treated under US unlawful-presence rules. The ruling, Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), marks a significant change from the approach established in Matter of Arrabally and Yerrabelly. 

Under the earlier interpretation, certain immigrants who temporarily left the US using Advance Parole generally did not become subject to the three-year or 10-year unlawful-presence bars solely because of that departure. That protection is no longer available in the same form.

Advance Parole remains an important immigration tool. It allows certain non-citizens with pending applications or other qualifying immigration circumstances to travel outside the US and seek parole back into the country without first obtaining a new visa. However, having an Advance Parole document does not guarantee that international travel will have no immigration consequences.

The new BIA ruling focuses on what happens when a person with qualifying unlawful presence leaves US territory. The Board concluded that travelling under Advance Parole can constitute a departure for the purposes of Section 212(a)(9)(B) of the Immigration and Nationality Act.

That distinction could have serious consequences for people who have spent significant periods in the US without lawful status. Under the law, a person who has accumulated more than 180 days but less than one year of qualifying unlawful presence can become subject to a three-year bar after leaving the United States. If the person has accumulated one year or more of qualifying unlawful presence, the potential bar is 10 years.

The ruling does not mean that every person who travels on Advance Parole will automatically be barred from returning to the United States. The outcome depends on the individual's immigration history, including the amount of unlawful presence accumulated and whether a statutory or other applicable exception affects the analysis.

The case that led to the BIA's reconsideration demonstrates the complexity of these cases. Milagro Delcarmen-Lara, a citizen of El Salvador, had been involved in immigration proceedings dating back to a 2006 removal order. She later obtained DACA and married a US citizen whose family-based petition was filed on her behalf. She then travelled abroad using Advance Parole before returning to the United States through parole.

In reconsidering the earlier precedent, the BIA placed significant weight on the language Congress used when establishing the unlawful-presence provisions. The Board noted that Congress had expressly created exceptions in other parts of immigration law but had not established a specific Advance Parole exception under Section 212(a)(9)(B). The decision therefore rejects the view that Advance Parole, by itself, eliminates the immigration consequences of a qualifying departure.

For Kenyan immigrants in the United States, the ruling could have significant practical implications. Some people use Advance Parole while waiting for immigration applications to be processed and may need to travel to Kenya for family events, emergencies or other personal reasons. A trip that may previously have appeared relatively low-risk under the Arrabally and Yerrabelly interpretation may now require a more detailed assessment.

The issue is particularly important for people who entered the United States without inspection and later applied to adjust their status. Their ability to travel and return has often depended on Advance Parole. The new ruling means, however, that obtaining Advance Parole and deciding to use it are separate matters, with potentially different consequences.

Determining whether someone has accumulated enough unlawful presence to trigger a bar is also not simply a matter of calculating the time since a visa or immigration document expired. US law excludes certain periods from the unlawful-presence calculation, while circumstances such as deferred action and other immigration protections can affect the assessment. As a result, two people with apparently similar immigration histories can face different outcomes. 

The significance of the BIA's decision is therefore not that Advance Parole has been abolished, but that using it may now carry greater legal risk for people with qualifying unlawful presence. The travel document remains available to eligible immigrants, but it can no longer be treated as providing the broad protection that some travellers relied on under the 2012 precedent.

Kenyans and other immigrants who have accumulated, or may have accumulated, unlawful presence should establish how their unlawful-presence period has been calculated before making international travel plans. Immigration records, previous entries and departures, applications, periods of deferred action and other details of an individual's history can affect the assessment.