I am a Canadian citizen working in the United States. I have obtained a series of TNs for two different employers in two different cities over the last 3 years. Unfortunately, my wife has overstayed her TD by more than 180 days. Is her best recourse to apply for an adjustment of status (pleading exceptional circumstances, such as sick children, confusion over employment status etc) using an I-539 or would she be better off leaving the USA and applying for a new TD at the border?

You have used the wrong terminology here - adjustment of status refers to a change from nonimmigrant status to lawful permanent residence. You are really referring to a change of status from one nonimmigrant status to another.

According to INA §248, a prerequisite for a change of status is that the alien continue to maintain status. As your wife has already overstayed, she is not eligible for a change of status. The only way that you will get a change of status is if you request nunc pro tunc (retroactive) approval of an extension of stay. The INS regulations provide for nunc pro tunc grants of extensions of stay only in limited circumstances. According to 8 CFR §214.1(c)(4), failure to file before the period of previously authorized status expired may be excused in the discretion of the INS, without the need to file any additional application, where it is demonstrated at the time of filing that:

1. The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

2. The alien has not otherwise violated his or her nonimmigrant status;

3. The alien remains a bona fide nonimmigrant; and

4. The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.

Whether you will be able to show that your wife's failure to make a timely filing for an extension of stay was due to extraordinary circumstances beyond her control is unknown. However, the reasons you have given for the delay do not sound like extraordinary circumstances beyond your wife's control. There is also the additional requirement that the delay must have been commensurate with the circumstances; 180 days is a long time so you will have a tough time arguing that the delay was reasonable. Nevertheless, it probably cannot hurt to apply for nunc pro tunc approval of your wife's extension of stay, as long as she does not remain unlawfully present for 12 months. If she does, a ten year bar will apply to her instead of a three year bar.

Leaving the United States at this point is risky since the minute she leaves, the three-year bar will attach to her. At that point she would not be legally eligible to apply for a new TN at the border unless she first obtains a nonimmigrant waiver under INA §212(d)(3).

The INS has stated that an alien who is subject to the three-year or ten-year bar cannot seek a waiver of the bar until they have departed the United States. Therefore, your wife would not be able to seek a waiver before leaving. Also, the INS will probably not grant a waiver of the bar until your wife has remained outside the United States for a sufficient period of time (half of the period of the applicable bar is a good rule of thumb.)

Under the circumstances, I recommend seeking a nunc pro tunc extension of stay first, making sure you avoid the ten year bar. If this is unsuccessful, your wife will have to leave the United States and try to obtain a nonimmigrant waiver of the three year bar under INA §212(d)(3).

I recently filed Form I-485 to adjust my status. With the current situation, it looks like it will be another 2-4 yrs before I receive my green card. I have just been approved for landed immigrant status so I need to make my formal landing in Canada. If I land and then return to the United States with my advance parole, will this affect my adjustment of stats case or prevent me from being readmitted? Will I need to give up my Canadian landed immigrant status in order to get my green card?

Possession of an advance parole document should be sufficient to gain readmission to the United States even if you have recently become a landed immigrant. Your status in Canada should not necessarily show an intention to abandon your adjustment application since you could still intend to give up your Canadian status once you get your green card. You will not have to abandon your landed immigrant status as a prerequisite to getting your green card, but you will almost certainly be cautioned that you cannot reside in both countries. You will have to give up your permanent status in one of the two countries eventually.

I am a Canadian citizen. Is it possible to work as an "academic" physician, without any patient contact on a TN visa while awaiting an H-1B in October? I understand you would have to leave the country before re-entering on the H-1B, but being allowed to work would also allow you to move your furniture, enroll your kids in school in the interim. Does this violate the dual intent principle of the TN, and somehow invalidate the H-1B and subsequent naturalization process?

It is clearly possible to work as a physician under TN status as long as you are engaged in teaching and research only and not in direct patient care, except to the extent that it is clearly incidental to your teaching and research duties. If you acquire H-1B status later, you can engage in direct patient care at that time. This does not violate any immigration principles. Dual intent relates to your future intent to be an immigrant, not your future intent to engage in direct patient care.

You are not required to leave the United States and re-enter under H-1B status if you request a change of status at the time that the H-1B petition is filed. The change from TN to H-1B will be automatic as of the start date indicated on the approval notice. Remember to change the status of your dependents by filing Form I-539 at the same time or your dependents may fall out of status.

Of course, you can also file for an H-1B without requesting a change of status and then leave and re-enter the United States once the H-1B is approved. If you choose this option, both you and your dependents should leave and re-enter the United States. Otherwise, their TD status will end when you re-enter using the H-1B and they will be in the United States unlawfully.

Once you are in TN status, you will be able to move your belongings to the United States and enroll your dependent children in school provided that they obtain TD status.

I am currently working for a U.S. employer under an H1-B.  My I-485 was filed with the INS close to two years ago.  My question is whether or not there is a time period one should wait after receiving a green card before changing employers.  Is there a safe waiting period that should be observed?

The alien must intend to assume a permanent and full-time position with the petitioning employer. Quitting your job too soon after obtaining your green card can suggest that you fraudulently misrepresented your intentions during your interview. There is no specific minimum time period to wait before you can change jobs. However, in my personal opinion a period of six-months is probably safe.