Effect of Departure and Reentry on Adjustment of Status Bars

8 C.F.R. §245.1(d)(3): departure does not erase §245(c)(2)

Current federal regulations directly address the effect of departure.

The regulation provides that departure and subsequent reentry do not erase the §245(c)(2) adjustment bar where the applicant previously:

• Worked without authorization after January 1, 1977; or
• Failed to maintain lawful immigration status during a previous entry.

Prior unlawful status survives a later reentry

Consider a person who:

1. Entered in F-1 status;
2. Later failed to maintain the student status;
3. Departed the United States;
4. Obtained a new nonimmigrant visa;
5. Returned lawfully; and
6. Filed Form I-485 while maintaining the new status.

The later lawful admission can satisfy the filing-date status question while the earlier failure to maintain continuously lawful status can remain a §245(c)(2) problem.

See Failure to Maintain Continuous Lawful Status.

Prior unauthorized employment also survives departure and reentry

The first sentence of 8 C.F.R. §245.1(d)(3) expressly addresses unauthorized employment.

A person who worked without authorization cannot ordinarily erase that adjustment problem simply by:

• Leaving the country;
• Obtaining another visa;
• Returning in lawful status; and
• Filing Form I-485.

See Unauthorized Employment and Adjustment.

A later lawful admission can still matter substantially

Although a new admission does not ordinarily erase an old §245(c)(2) violation, it can affect several other legal questions.

A lawful admission can:

• Satisfy the basic INA §245(a) inspected-and-admitted requirement;
• Establish lawful status on the date a later I-485 is filed;
• Become the relevant admission for INA §245(k);
• Change the applicant's nonimmigrant classification;
• Affect jurisdiction or travel options; and
• Alter the inadmissibility analysis depending on what occurred before and during travel.

INA §245(k) creates the major employment-based exception

INA §245(k) permits qualifying employment-based applicants to adjust notwithstanding §245(c)(2), §245(c)(7), and §245(c)(8) where the statutory requirements are satisfied.

The statute applies to qualifying:

• EB-1 applicants;
• EB-2 applicants;
• EB-3 applicants;
• EB-5 applicants; and
• Specified EB-4 religious workers.

The applicant must be present pursuant to a lawful admission when Form I-485 is filed and must not have accumulated more than 180 days of the covered violations after the relevant lawful admission.

See INA §245(k).

USCIS generally measures §245(k) after the most recent lawful admission

USCIS applies §245(k) by focusing on the period after the applicant's most recent qualifying lawful admission.

This can mean that a person who accumulated more than 180 days of covered violations during an earlier stay can later qualify under §245(k) if:

1. The person departs;
2. Returns through a qualifying lawful admission;
3. Is in the United States pursuant to that admission when filing I-485; and
4. Does not accumulate more than 180 days of covered violations after that admission.

Parole is not ordinarily a lawful admission

INA §245(a) allows adjustment after either inspection and admission or parole.

INA §245(k), however, specifically requires presence pursuant to a lawful admission.

An ordinary return under advance parole therefore generally:

• Can satisfy or preserve the §245(a) parole route;
• Does not itself constitute an “admission”; and
• Does not ordinarily create a new lawful-admission starting point for §245(k).

See What Counts as Parole?.

TPS-authorized travel can be different

Current USCIS TPS policy creates an important specialized rule.

A qualifying TPS beneficiary who:

• Obtains DHS authorization for TPS travel;
• Travels in accordance with that authorization;
• Returns while meeting the applicable TPS requirements; and
• Is inspected and admitted into TPS

can receive an admission that USCIS recognizes for INA §245(a) and, where otherwise eligible, INA §245(k).

See TPS and Adjustment of Status.

Advance parole serves a different function

An Advance Parole Document generally authorizes the holder to travel to a U.S. port of entry and request discretionary parole.

It does not itself:

• Guarantee return;
• Constitute a visa;
• Constitute admission;
• Waive inadmissibility;
• Erase prior status violations;
• Erase unauthorized employment; or
• Guarantee approval of the pending I-485.

See Advance Parole and Adjustment Eligibility.

Matter of Delcarmen-Lara overruled Arrabally in August 2026

On August 13, 2026, the BIA issued Matter of Delcarmen-Lara, 29 I&N Dec. 830.

The Board held that:

The Board expressly overruled Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012).

Accordingly, a person who has accrued sufficient unlawful presence can trigger the three- or ten-year unlawful-presence bar by leaving under advance parole.

Departure can also abandon a pending Form I-485

USCIS's current Form I-485 instructions warn that an adjustment applicant who leaves the United States while Form I-485 is pending will generally have the application denied as abandoned unless a recognized travel exception applies.

The ordinary protected route requires:

1. Advance parole granted before departure;
2. Travel while the document remains valid;
3. Return to a U.S. port of entry; and
4. Actual parole into the United States.

H, L, V, and K-3/K-4 travel exceptions

Current USCIS Form I-485 and Form I-131 instructions recognize travel without advance parole for specified applicants who:

• Are maintaining qualifying H status;
• Are maintaining qualifying L status;
• Are maintaining qualifying V status; or
• Are maintaining qualifying K-3 or K-4 status

and properly return in the qualifying classification with the required travel documents.

See Pending Form I-485 Guide.

Travel while in removal proceedings is especially dangerous

An adjustment applicant in removal proceedings has additional procedural and jurisdictional issues.

Depending on the case, departure can affect:

• The pending adjustment application;
• The removal order;
• Voluntary departure;
• Advance parole eligibility;
• Execution of the removal order;
• INA §212(a)(9)(A);
• INA §212(a)(9)(C); and
• Jurisdiction over future immigration applications.

Prior removal and INA §212(a)(9)(A)

A departure can affect inadmissibility where the person has an existing or prior removal, deportation, exclusion, or expedited-removal order.

Review:

• Type of order;
• Date of order;
• Whether the person departed under the order;
• Whether DHS physically removed the person;
• Whether the order was later reopened or vacated;
• The applicable statutory inadmissibility period; and
• Whether Form I-212 consent to reapply is required.

Unlawful presence under INA §212(a)(9)(B)

The three- and ten-year bars are generally triggered by departure after the statutory amount of unlawful presence has accrued.

Broadly:

• More than 180 days but less than one year can implicate the three-year bar; and
• One year or more can implicate the ten-year bar.

Statutory exclusions and special rules can substantially change the calculation.

INA §212(a)(9)(C) can create even more serious consequences

Section 212(a)(9)(C) can apply where a person:

• Accrued the specified aggregate unlawful presence or was ordered removed; and
• Later entered or attempted to reenter without being admitted.

The chronology of departures and returns is therefore critical.

Other adjustment bars must be analyzed according to their own language

The effect of departure is not identical across every adjustment restriction.

Examples include:

• Crewman history;
• Transit Without Visa admission;
• Visa Waiver Program admission;
• S nonimmigrant status;
• K nonimmigrant restrictions;
• Conditional permanent residence;
• Marriage during proceedings; and
• Special adjustment categories.

Travel and reentry evidence checklist

Examples

Frequently asked questions