Publication
Why Foreign National Travel May Be Riskier
Two recent developments have converged that may create significant travel risks for foreign nationals with pending immigration matters: whether adjustment of status (I-485), extensions or changes of status (I-539), H-1B transfers, EAD renewals, or other pending petitions. First, the Board of Immigration Appeals’ (BIA) August 13, 2026 decision in Matter of Delcarmen-Lara means that international travel on advance parole now triggers the 3- and 10-year unlawful presence bars, a reversal of 14 years of settled law. Second, ICE airport operations and TSA-ICE data sharing could make domestic air travel risky for anyone with a pending application, expiring status, or prior removal history.
Bottom line: Foreign nationals with pending immigration matters may now encounter travel related risks in both directions. International travel on advance parole can trigger years-long reentry bars for those with unlawful presence, while domestic flights can lead to ICE detention.
International Travel: The Delcarmen-Lara Decision
On August 13, 2026, the BIA issued Matter of Delcarmen-Lara, overruling Arrabally (2012). This decision changes the risk analysis for anyone with unlawful presence who travels on advance parole.
The change:
- Before (Arrabally, 2012–2026): Advance parole travel was not a “departure” for unlawful presence purposes. People with accrued unlawful presence could travel internationally without triggering the three- or 10-year bars.
- Now (Delcarmen-Lara): Any departure, including on advance parole, triggers the bars. Someone with over 180 days of unlawful presence who leaves the United States, even with a valid advance parole document, could face a three-year bar (180 days to one year of unlawful presence) or 10-year bar (one year or more).
Who is potentially at risk:
- DACA recipients with unlawful presence who travel on advance parole
- TPS holders who entered without inspection or overstayed prior status
- Anyone with a pending application, advance parole, and more than 180 days of unlawful presence
Practical impact: An employee who travels abroad on advance parole, even briefly, could be barred from returning for 3 or 10 years if they have unlawful presence. This could create a real workforce disruption risk.
Domestic Travel: ICE Airport Operations
Domestic air travel could pose a potential risk for anyone with a pending immigration application, expiring status, prior removal history, or other vulnerability.
What is likely driving the risk:
- TSA-ICE data sharing (May 2025): TSA shares passenger manifests with ICE several times per week, allowing targeted enforcement at airports.
- ICE airport arrests: ICE is using this data to make arrests, including of people with valid work authorization. A valid EAD does not eliminate risk.
- ICE expansion: ICE has more than doubled its enforcement personnel.
- No more “sensitive locations”: ICE is no longer bound by the policy limiting enforcement at certain locations. Airports are active enforcement zones.
Practical impact: Employees with pending applications, expiring status, or removal history face detention risk on domestic flights. Someone flying from New York to Chicago could be detained even with valid work authorization.
The Combined Effect
Together, these developments create elevated travel risk for anyone with a pending immigration matter:
- International travel on advance parole can trigger 3- or 10-year reentry bars under Delcarmen-Lara for anyone with more than 180 days of unlawful presence.
- Domestic travel exposes anyone with a pending application, expiring status, or prior removal history to ICE detention at airports.
Anyone with a pending immigration matter should consider the potential elevated travel risk. Those with qualifying unlawful presence may want to consider retaining counsel before traveling internationally on advance parole. Anyone with a pending matter, expiring status, or removal history should also consider consulting with counsel before domestic air travel.
What Employers Should Consider Doing Now
- Review business travel for employees with pending applications, expiring status, or prior removal history until counsel evaluates risk.
- Audit your workforce for travel and status vulnerabilities. Identify employees with more than 180 days of unlawful presence.
- Establish a detention protocol. Know who to call if an employee is detained at an airport.
- Monitor for developments. Litigation challenging Delcarmen-Lara is expected, and USCIS may issue guidance that clarifies the decision’s scope.
About Snell & Wilmer
Founded in 1938, Snell & Wilmer is a full-service business law firm with more than 500 attorneys practicing in 17 locations throughout the United States and in Mexico, including Phoenix and Tucson, Arizona; Los Angeles, Orange County, Palo Alto and San Diego, California; Denver, Colorado; Washington, D.C.; Boise, Idaho; Las Vegas and Reno-Tahoe, Nevada; Albuquerque, New Mexico; Portland, Oregon; Dallas, Texas; Salt Lake City, Utah; Seattle, Washington; and Los Cabos, Mexico. The firm represents clients ranging from large, publicly traded corporations to small businesses, individuals and entrepreneurs. For more information, visit swlaw.com.
