Determining "unlawful presence" for purposes of 3/10 year bans

[Linscott]

Advance Parole: Determining "unlawful presence" for purposes of 3/10 year bans

OK, need help!!

Here is the hypo
1. Woman engaged to U.S. citizen, legally here on TN work visa (Canadian citizen).
2. She quits job to move (within U.S.) with U.S citizen before they marry
3. 3 days later she marries the U.S. citizen
4. About a week after that an I-485 is filed based on marriage
5. 6 months or so after that, the I-485 interview is conducted resulting in approval pending background check
6. Two months after that I 512L Authorization for Advance Parole is received.

So, before the newlyweds head out of the country, I was wondering if someone could inform me whether the wife has accrued more than 180 days of "unauthorized stay" that can invoke the 3-year ban.

I assume the first issue is whether, between her quitting her job and our filing the I-485, the clock started to tick. Is there any grace period? Does it hinge on exactly when the employer notified USCIS? As a Canadian citizen couldn't her stay have been for up to 6 months after (tourist)?

Second, if the clock did start to tick, was it effectively tolled by the I-485? And for how long, I know there is some reference to a maximum 120-day tolling under 212(a)(9)(B) but that it has been interpreted loosely.

Third, does her I-485 having been conditionally approved pending the background check affect things?

Fourth, if anyone has any experience - are 248.1(b) and 8 CFR 214.1 (c)(4) liberally construed? Do they even apply? How risky would it be, if necessary, to rely on this discretion given the above facts?

Thanks - I've reached the end of my rope. It has all become a little too complex for me at this point.

Any help is greatly appreciated!!!!!

 

[akatu]

In general to apply for I-485 one has to be in legal nonimmigrant status. aAfter recieving receipt notice tolling kicks in.
For spouses of US citizents this requirement is waived. So all this does not matter.
But if AOS rejected then tolling period is eraisen. She returns either to previous status or to no status if it expired.

In you case only one thing could be questioned. Too short period b/w entry and marriage. It would be in the best interest of your wife to start working for a company sponsoring her TN visa to show proof of good intent when she applied for nonimmigrant visa onthe first place.