Topic: Critical Immigration Policy Alert – Overruling of Matter of Arrabally and Yerrabelly

CRITICAL ADVISORY

If you or a loved one currently hold an approved Advance Parole travel document (Form I-512L) or are planning to travel abroad using Advance Parole, STOP and read this immediately.

On August 13, 2026, the Board of Immigration Appeals (BIA) issued a decision in Matter of Delcarmen-Lara that completely changes 14 years of established immigration law. Traveling outside the United States on Advance Parole if you have a history of unlawful presence could now trigger a 3-year or 10-year bar to re-entry, blocking your ability to return or get a Green Card.

Do NOT leave the United States without having an experienced immigration attorney review your full case history first.

1. What Happened? The New BIA Decision Explained

In Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), the BIA officially overruled its 2012 landmark decision, Matter of Arrabally and Yerrabelly.

• The Old Rule (Arrabally & Yerrabelly, 2012–2026): For over a decade, the law stated that leaving the U.S. temporarily on a grant of Advance Parole did not count as a "departure" for the purposes of triggering unlawful presence bars under INA § 212(a)(9)(B). This allowed DACA recipients, TPS holders, and individuals with pending adjustment of status applications to travel abroad safely without triggering 3- or 10-year re-entry bans.

• The New Rule (Delcarmen-Lara, August 2026): The BIA ruled that the plain text of the Immigration and Nationality Act (INA) contains no exception for Advance Parole. Under the new rule, any trip outside the U.S. under Advance Parole IS considered a statutory "departure."

2. What Does This Mean in Practical Terms for Non-Lawyers?

To understand how this affects you, here is a breakdown in plain language:

A. The "Unlawful Presence" 3-Year & 10-Year Bars

Under U.S. federal immigration law (INA § 212(a)(9)(B)):

• If you stay in the U.S. without lawful status for more than 180 days but less than 1 year after turning 18, and then leave the U.S., you trigger a 3-year bar on re-entry.

• If you stay in the U.S. without lawful status for 1 year or more after turning 18, and then leave the U.S., you trigger a 10-year bar on re-entry.

B. The Advance Parole "Trap"

• Before this decision: Advance Parole acted as a safe mechanism. Even if you had 5 years of unlawful presence, traveling on Advance Parole did not trigger the 10-year bar. Many people used this travel to return lawfully (paroled) and then apply for a Green Card inside the U.S.

• Now: The physical act of crossing the border to go abroad—even with official Advance Parole paperwork in hand—will trigger the 3-year or 10-year bar if you accrued unlawful presence before leaving. When you attempt to re-enter or apply for permanent residence (a Green Card), USCIS or Border Patrol can deem you inadmissible.

3. Who Is Most at Risk?

You are at high risk of triggering a re-entry bar if you leave the country under Advance Parole and fall into any of these categories:

1. DACA Recipients: Anyone who received DACA after turning 18½ years old (meaning you accumulated more than 180 days of unlawful presence before getting DACA).

2. TPS Beneficiaries: Individuals holding Temporary Protected Status who had periods of unlawful presence prior to obtaining TPS.

3. Pending Green Card Applicants: Individuals adjusting status through family or employment who had past periods of unlawful presence in the U.S.

4. Anyone with Prior Deportation/Removal Orders: Individuals with past immigration court proceedings or final orders of removal.

4. Key Takeaways & What You Should Do Now

• Pause All International Travel: Even if you have an approved Advance Parole card (Form I-512L) or advance travel booked, do not board a plane or cross a land border until an attorney reviews your file.

• Get an Unlawful Presence Calculation: An immigration lawyer must carefully audit your timeline to calculate whether you accrued "unlawful presence." (For example, minors under 18 do not accrue unlawful presence for this bar, and certain DACA holders who were protected continuously before age 18½ may still be safe).

• Understanding Retroactivity vs. Prospective Application: The BIA noted in Delcarmen-Lara that this new standard applies prospectively (moving forward). However, how immigration agencies (USCIS, CBP) will interpret trips taken today versus past trips is complex. Do not make assumptions about your legal status without formal guidance.

Disclaimer: This blog post is provided for informational and educational purposes only and does not constitute formal legal advice. Immigration law is changing rapidly. If you are considering travel or have questions regarding your status, contact a licensed immigration attorney immediately.

Key Changes to F-1 Student Work Authorization: Understanding the 2026 Duration of Status Final Rule

The U.S. Department of Homeland Security (DHS) published a landmark final rule eliminating "duration of status" (D/S) for F-1 nonimmigrants, replacing it with fixed periods of admission. Effective September 15, 2026, this rule introduces significant regulatory updates that impact Curricular Practical Training (CPT), Optional Practical Training (OPT), and Extension of Stay (EOS) procedures.

Below, we answer key questions regarding how these changes affect foreign students and U.S. employers.

General Overview & Admission Limits

Q: What is changing regarding how long F-1 students can remain in the U.S.?

A: Under the new rule, students will no longer be admitted for "duration of status" (D/S). Instead, they will be given a specific "Admit Until Date" (AUD) on their Form I-94. Admission will be granted for the length of the program listed on Form I-20 or a maximum of four years, whichever is shorter. Additionally, the standard departure grace period following program completion is reduced from 60 days to 30 days.

Curricular Practical Training (CPT)

Q: How does the final rule impact CPT?

A: While the rule does not affect currently authorized CPT, it places strict limitations on future CPT authorizations:

• Same/Lower Degree Levels: Prohibits F-1 enrollment in degree programs at an academic level equal to or lower than one already completed.

• Change of Degree Program: Restricts graduate students from changing their degree programs or educational objectives.

• Tighter Regulations Ahead: DHS’s Regulatory Agenda suggests upcoming rulemakings to require stricter documentation showing CPT is integral to a program’s curriculum.

Optional Practical Training (OPT) & Extensions

Q: How does the filing timeline change for initial Post-Completion OPT?

A: The window to apply for post-completion OPT changes:

• Old Rule: 90 days prior to program completion up to 60 days after.

• New Rule: 90 days prior to program completion up to 30 days after.

Q: What if a student’s Admit Until Date (AUD) expires before their OPT end date?

A: If a student's AUD expires before the end of their authorized OPT period, they must extend their AUD to match their OPT end date. This can be accomplished by:

1. Filing Form I-539 (Extension of Stay) through USCIS within the U.S. (DHS recommends filing at least 180 days prior to AUD expiration).

2. Departing the U.S. and seeking re-entry through a Port of Entry with a valid F-1 visa, OPT-recommended Form I-20, and Form I-765 receipt notice.

Q: Will international travel affect a pending Form I-539 Extension of Stay?

A: Yes. Traveling abroad while a Form I-539 is pending will abandon the application. The only exception is if the student travels and returns within the already-approved validity period of their Form I-20 and seeks readmission only until that original Program End Date. Otherwise, the student abandons the I-539 and must present their OPT-endorsed Form I-20 and Form I-765 receipt at the port of entry upon return.

Q: Are there transition relief options for students already in the U.S. on September 15, 2026?

A: Yes. Students present in the U.S. and maintaining valid F-1 status on September 15, 2026, may apply for post-completion OPT without filing a separate Form I-539 EOS application, provided they apply by March 18, 2027.

Work Authorization Extensions

Q: Is the 180-day automatic extension for STEM OPT still available?

A: Yes. The 180-day automatic extension for timely filed STEM OPT applications (filed up to 90 days prior to current EAD expiration) remains unchanged. However, if the student's AUD does not cover the full STEM OPT period, an extension of stay via Form I-539 or international re-entry will still be required.

Q: Does the rule provide automatic work extensions for CPT, On-Campus Work, or Economic Hardship?

A: The rule provides an automatic extension of up to 240 days for on-campus employment, CPT, Special Student Relief (SSR), and severe economic hardship employment while a Form I-539 EOS application is pending.

Important Caveat: The EOS application must be filed prior to the Program End Date on Form I-20 (not the AUD) while the student is still work-authorized. EOS applications filed during the 30-day grace period do not grant automatic work authorization extensions.

Compliance, Processing, & Attorney Guidance

Q: What new compliance and vetting challenges should students anticipate?

A:

• Biometrics: Applicants filing Form I-539 or I-765 may be required to submit biometrics, which can trigger delays or scrutiny if law enforcement contact exists.

• Social Media Vetting & Employment Consistency: Enhanced vetting means work histories across visa documents, resumes, and public social media profiles (e.g., LinkedIn) must align perfectly. Students should avoid describing unpaid internships as formal employment and avoid unauthorized self-employment (such as social media influencer/NIL earnings).

• Processing Delays: Because Premium Processing is not currently available for Form I-539 EOS applications, delays in I-539 processing may impact or shorten the student's usable OPT period.

Q: Can online Form I-539 applications include legal representation for families?

A: Currently, online I-539 filing only supports linking Form G-28 for single applicants without dependents (Form I-539A). For EOS applications involving family dependents, legal counsel should guide the applicant through screen-share sessions, upload a scanned, hard-copy signed G-28, and note that duplicate paper notices may not be issued directly to the attorney by USCIS.

Disclaimer: This blog post is for informational purposes only and does not constitute formal legal advice. If you have questions regarding your specific F-1 status or work authorization, please contact our office to schedule a consultation.

Impacted individuals include those whose lawful status has expired but may have timely filed adjustment of status applications or asylum applications which would allow them to be in a period of authorized stay. Reports include individuals being detained who do not have criminal records and who have valid work authorization or advance parole documents.

The New York Times is separately reporting on the issue as well. “In 38 years practicing immigration law, I had never seen this,” said Charles Kuck, who is based in Atlanta and is representing an Indian engineer who was detained while awaiting a work-permit extension. “And I know it’s happening to lots of people.”

Shannon Shepherd, an immigration lawyer who is vice chair for the Chicago chapter of the American Immigration Lawyers Association, said she and other lawyers were revising longstanding advice about domestic air travel.

“Before, I was saying, ‘As long as you have an ID, you can travel domestically,’” Ms. Shepherd said. “Now I am turning around and saying, ‘If you are in the process of changing status, avoid any travel.’”

This is a developing situation, and our offices advice is to err on the side of caution. 

Big changes are coming to immigration rules regarding Duration of Status (D/S) starting September 15, 2026. If you are currently in the U.S. on an F-1 (student), J-1 (exchange visitor), or I (foreign media) visa, here is a clear breakdown of how these transition rules affect you and what steps you should take to protect your status.

Key Takeaways for F-1 and J-1 Visa Holders in the U.S. on Sept 15, 2026

If you are physically in the U.S. with valid status on September 15, 2026:

• Staying in the U.S.: You can remain until the end date on your Form I-20 or DS-2019, up to a maximum of four years (until September 15, 2030).

• Grace Periods: You automatically keep your standard grace period at the end of your program (60 days for F-1 students; 30 days for J-1 exchange visitors).

• No Extra Paperwork Needed (For Now): You do not need to file Form I-539 (Application to Extend/Change Nonimmigrant Status) just to stay under these transition rules.

Warning: How International Travel Impacts Your Status

Traveling outside the U.S. after September 15, 2026, will change the rules for you upon re-entry:

1. Shorter Grace Period for F-1s: If you travel abroad and re-enter, your F-1 grace period will drop from 60 days down to 30 days.

2. Strict Expiration Dates: You will be admitted with a specific end date on your I-94 card (matching your I-20/DS-2019 or EAD end date, up to a max of 4 years).

3. Extensions Required: Once you re-enter under the new rules, you will be required to file Form I-539 to extend your stay if you need more time for school, program transfers, OPT, or STEM OPT.

Work Authorizations (OPT / STEM OPT) & Extensions

• Already Pending OPT Applications: If you filed for post-completion OPT or STEM OPT on time, you can stay in the U.S. while USCIS processes it. You do not need to file a separate Form I-539.

• Filing Before March 18, 2027: If you qualify and file your OPT/STEM OPT work permit application (Form I-765) before March 18, 2027, you generally will not need to file Form I-539 to extend your stay, provided you have not traveled internationally after September 15, 2026.

• If You Need More Time: If you stay in the U.S. and need time beyond your current I-20/DS-2019 end date (and do not travel abroad to re-enter), you must file Form I-539 with USCIS.

Special Rules for Foreign Media (I Visas)

If you are in the U.S. in valid I visa status on September 15, 2026:

• Standard Limits: You can remain in status to complete your media activities for up to 300 days after the final rule was published (until May 13, 2027).

• PRC Passport Holders: Individuals traveling on People's Republic of China (PRC) passports (excluding Hong Kong and Macau) have a shorter limit of up to 150 days (until December 14, 2026).

• Extensions: To stay longer than these transition dates, you must file Form I-539 with USCIS or leave and apply for re-entry.

Actionable Tips from Our Legal Team

1. Update Your Records Early: If you need more time for your program or are starting a new one, work with your Designated School Official (DSO) or sponsor to get an updated Form I-20 or DS-2019 before September 15, 2026.

2. File OPT Applications Early:

   • Apply for OPT/STEM OPT before September 15, 2026, if eligible.

   • If graduating by May/June 2027, utilize the 90-day advance filing window to submit your OPT application before March 18, 2027, avoiding the extra I-539 extension application.

3. Incoming Students: If possible, enter the U.S. (up to 30 days before your start date) before September 15, 2026, to take advantage of the transition protections and longer grace periods.

4. Reconsider Fall 2026 International Travel: Travel around or after September 15, 2026, can cause you to lose key benefits (like the 60-day F-1 grace period) and trigger additional application filing requirements. Try to return to the U.S. before September 15, 2026, or postpone non-essential travel.

Disclaimer: Immigration policies change frequently. Every case is unique, so please contact our office directly to discuss how these transition rules apply to your specific situation before making travel or filing plans.