Some Kenyan immigrants living in the United States could face serious immigration consequences when traveling abroad after a new ruling overturned a longstanding protection for people using Advance Parole.
The US Board of Immigration Appeals (BIA) issued the ruling on August 13, 2026, overturning a 2012 precedent that protected some immigrants traveling under Advance Parole.
Under the previous ruling, temporarily leaving the US with Advance Parole was not considered a “departure” for purposes of unlawful-presence rules.
The Board, in Matter of Milagro Delcarmen-Lara, said such a trip can now count as a departure, potentially exposing immigrants who accumulated unlawful presence to a three-year or 10-year bar when they later seek admission to the United States.
US Immigration Board Tightens Travel Rules for Some Migrants
The decision could affect some Kenyans who have lived in the US without lawful status, accumulated unlawful presence, and later obtained Advance Parole to travel outside the country.
Advance Parole allows certain non-citizens to leave the United States temporarily and seek permission to return.
However, the Board’s new interpretation means that the act of leaving the country under Advance Parole may now carry serious consequences for immigrants with significant periods of unlawful presence.
“A departure from the United States pursuant to a grant of advance parole is a ‘departure’ within the meaning of section 212(a)(9)(B)(i)(II)” of the Immigration and Nationality Act.
“The INA provides that an alien who “has been unlawfully present in the
United States for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal from the United States, is inadmissible.”
The ruling reverses Matter of Arrabally and Yerrabelly, a 2012 decision that had offered protection to immigrants traveling temporarily under Advance Parole.
Under the previous precedent, the Board had held that a person who left temporarily with Advance Parole did not make the type of departure that would trigger the unlawful-presence bar.
That protection has now been removed.
“We now clarify that the term ‘departure’ under this section of the INA does not include an exception for aliens who leave the country temporarily under a grant of advance parole,” the Board said.
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USCIS Explains Who Could Be Affected
The US Citizenship and Immigration Services (USCIS) has also warned that the August 13 decision could affect people planning to travel outside the United States using Advance Parole.
USCIS said that under the new interpretation, a person who has been unlawfully present in the United States for more than 180 days could face immigration consequences after leaving the country, even with a valid Advance Parole document.
“If a person has been unlawfully present in the United States for more than 180 days, leaving the United States, even with a valid Advance Parole Document, may now count as a ‘departure’ under the law.”
The agency said such a departure could trigger a three-year or 10-year bar to returning to the United States, depending on the amount of unlawful presence accumulated.
This means a Kenyan immigrant who has accumulated more than 180 days of unlawful presence could potentially face a three-year bar. In contrast, someone who has accumulated one year or more could face a 10-year bar, depending on their individual circumstances under US immigration law.
USCIS advised people affected by the change to seek professional advice before traveling outside the United States.
“This information is general and does not replace legal advice. Individuals should consider speaking with a qualified immigration attorney or accredited representative before traveling.”
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What It Means for Kenyans
The decision does not mean that all Kenyans living in the United States will be affected.
It mainly affects Kenyan immigrants who have accumulated unlawful presence and are considering traveling outside the US using Advance Parole.
For example, a Kenyan who has overstayed or remained in the US without lawful status for more than 180 days and later receives Advance Parole to travel to Kenya could now face a three-year or 10-year bar when seeking to return, depending on the period of unlawful presence.
Advance Parole had previously offered protection under the 2012 BIA precedent, allowing immigrants to travel temporarily without the trip being treated as the departure that triggered these unlawful-presence bars.
The BIA has now overturned that precedent.
However, the Board said its new interpretation will apply prospectively, recognizing that the decision represents a significant change from the rule in place since 2012.
“In consideration of the foregoing, we will apply this new holding prospectively,” the Board said.
The decision therefore warns immigrants with unresolved immigration status that having an Advance Parole document does not necessarily shield them from the immigration consequences associated with unlawful presence.
For some Kenyan immigrants planning to travel home for family, business, or other reasons, the new ruling may require them to carefully assess their immigration status before leaving the United States.
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