In the landmark decision Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), the Board of Immigration Appeals (BIA) clarified a critical aspect of immigration law regarding inadmissibility under INA 212(a)(9)(B)(i). Specifically, it held that a noncitizen who accrues over 180 days of unlawful presence in the U.S. and subsequently departs under a grant of advance parole does not trigger the 3- or 10-year inadmissibility bars under INA 212(a)(9)(B)(i)(I) and (II) upon their return. This interpretation has broad implications for those seeking to re-enter the U.S. without triggering the bars after leaving with advance parole.

Key Takeaways from Matter of Arrabally and Yerrabelly

While the BIA's decision in Arrabally and Yerrabelly explicitly addressed the 10-year bar under INA 212(a)(9)(B)(i)(II), USCIS has reasonably extended the ruling to the 3-year bar under INA 212(a)(9)(B)(i)(I) as well. According to this guidance, any noncitizen who leaves the U.S. under advance parole—including applicants for adjustment of status, Deferred Action for Childhood Arrivals (DACA) recipients, and those with Temporary Protected Status (TPS)—should not be considered to have made a “departure” that would trigger the 3- or 10-year bar.

Unfortunately, as of this writing, the USCIS Policy Manual (Volume 8, Part O) has yet to be updated to fully reflect this guidance. This creates a gap between established BIA precedent and the official guidance materials on which immigration officers rely.

Inconsistent Application by the Department of State (DOS)

Despite the BIA's decision, the Department of State (DOS) has not uniformly recognized Matter of Arrabally and Yerrabelly in the same way as USCIS. For example, DOS may not apply this interpretation when DACA recipients or others with advance parole leave the U.S. and subsequently apply for a visa, such as an H-1B visa, at a U.S. consulate abroad. In such cases, DOS considers these individuals to have triggered the 3- or 10-year bars based on their prior accrual of unlawful presence.

This interpretation affects individuals who may have obtained DACA after reaching 18.5 years old, departed the U.S. under advance parole, and are now applying for an H-1B visa or other nonimmigrant visa abroad. These applicants face the prospect of needing an INA 212(d)(3) waiver for unlawful presence despite the USCIS's more accommodating position under Arrabally and Yerrabelly. DOS's stance restricts the BIA's interpretation solely to cases where individuals are departing and returning to the U.S. on advance parole, not on a newly acquired visa, which may unnecessarily create obstacles for those navigating this complex system.

The Hardship of Inconsistent Policies

The inconsistency between USCIS and DOS interpretations of Matter of Arrabally and Yerrabelly exacerbates challenges for noncitizens, who must contend with divergent interpretations across agencies. These discrepancies also exist in other areas of immigration law. For instance, DOS has differed from USCIS regarding the Dates for Filing Chart under the Child Status Protection Act (CSPA), which has led to children “aging out” of eligibility unnecessarily due to policy variances.

Call for Unified Policy and Further Clarifications

The conflicting applications of Arrabally and Yerrabelly highlight a broader issue within the U.S. immigration system: the lack of cohesion between agencies that should ideally function under a unified policy framework. When two key agencies, USCIS and DOS, interpret fundamental aspects of immigration law differently, it imposes undue hardship on those seeking to comply with legal processes and maintain lawful status. A harmonized approach to interpreting Matter of Arrabally and Yerrabelly—one that acknowledges departures under advance parole without triggering the 3- and 10-year bars regardless of visa versus parole reentry—would alleviate a significant burden.

Until such unity is achieved, it is essential for affected individuals and their advocates to remain vigilant in understanding the potential impacts of agency-specific interpretations and to prepare for the additional legal steps that may be required to address these inconsistencies. At Saluja Law, we continue to monitor these developments and advocate for a cohesive, fair, and predictable immigration system that recognizes the realities of noncitizens navigating a complex process.