H4 RFE for late filing

Hello All,

Current situation:

My H1b I797 Valid till 08/24/2016.

My spouse H4 I 797 and I 94 expired on 09/03/2015

History:

  1. H1b extension process was initiated on mid of Jun 2015.

  2. Finally my H1b got approved and My employer got email confirmation on 09/25/2016. Valid from 08/25/15 to08/24/16

  3. I was thinking that my employer would file for H4 extension as well but they will only take care of H1b. Its my mistake.

  4. Then i asked my employer to send the hard copy of my approved H1b copy and i got it on 3rd week of november.

  5. I applied for my spouse H4 on 1st week of december and got the receipt notice from USCIS on 12/09/2015

  6. My wife got a RFE on 04/18/2016 and received RFE hard copy on 04/21/2015

Now i hired an attorney to respond to RFE but really scared of decision since my wife crossed more than 180 days.

Please advice if anyone faced this problem and what would be possibilities for approval.

Thanks

I would suggest your wife to leave USA for sometime and revoke the H4 petition. Later try applying h4 visa from India directly.

Thank you for your response. If she leave US now She will get 3 year bar as she is in out of status for more than 180 days.

Same will happen even if she doesn’t leave USA now. Worse her illegal stay is increasing more and more. At lease she can leave USA and respond to RFE.

What is the attorney suggesting?

Attorney said not to leave US until we reply to RFE as it applies 3 year bar.
Not sure how positive it would be

Maybe attorney can plead that it was a genuine mistake and an honest oversight. The H-1 extension was indeed applied timely and b/c of some confusion b/w employer and employee, it wasn’t clear who would apply for H-4 extension.

The law is against you in this case. IMO, you can just request the officer to use his/her discretion to approve it.

Thank you very much. I am hoping the same. Will keep posted on the updates.
Have you came across this type case and decision made by USCIS

No, I haven’t come across any.

Hello Suresh

I am in the same boat need need guidance for the RFE

Can you please share your contact

My mail id id: shashiyadiyapur@gmail.com

+1 7323318859

Regards

Shashi