B2 to F2 & B2 to H4 (passport is with IRS for ITIN)

[gmoney]

I was on a student visa & OPT since 2010 till Jan 2018. I met my wife in July 2015, we got married on March 10th, 2017. She traveled here on a B2 visa in Feb 2017 and we filed a Change of Status (COS) from B2 to F2 for her in June 2017. Her I-94 expired in August 2017. My college did not issue a form I-20 for her and the lawyers that my employer worked with did not inform me to get a dependent form I-20 for her. After RFEs etc, I finally got my H1B approval in Jan 2018 and filed for my wife's change of status from B2 to H4 dependent in Feb 2018.

In late June 2018, we received an RFE for her initial COS form from USCIS requesting her dependent form I-20 which is required to process a COS to F2. We do not have it (the dependent form I-20 cannot be issued at this time since I am no longer on a student visa and am out of the SEVIS database). The lawyers hired by my employer recommended that she travel urgently to India, apply for an H4 visa at a consulate using a form DS-160 and come back. The response to her RFE is supposed to be sent to USCIS by July 24th. Today is July 14th.

Another issue here is this, we applied for an ITIN for my wife with the IRS in April 2018. They requested her original passport in June and we sent it to them before we received the RFE for her COS. They currently have possession of her passport and have stated that while the ITIN has been issued, it may take anywhere from 4-6 weeks to return her passport. We requested a letter from the IRS to send to USCIS that they have my wife's passport, but they declined to provide that letter. As far as we researched and spoke to the customer service professionals for the IRS on the phone, there is no other recourse to retrieve the passport from the IRS.

 

Our questions:

1. Can we withdraw the initial COS form sent in June 2017 for changing from B2-F2 since we did send another COS form for changing from B2 to H4 in Feb 2018?

2. If #1 is not allowed and worst case scenario she must travel to India before her response due date, how can we buy more time till we receive her passport back from the IRS?

3. If she has to apply for an H4 from India, can she fill form DS-160 with an existing COS form still in progress?

4. If she must fill a form DS-160, how do we answer this question? "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a US visa?". Her 6 month stay permitted on her B2 visa expired in August 2017, but we applied for a COS from B2-F2 in June 2017 and received the receipt for her COS in July 2017 which allowed her to stay till it is approved/denied.

5. Would you suggest that we both travel to India to get her visa approved? I have not left the US since my H1B has been approved and I should get it stamped before I request an H1-B extension in September 2020. Is it more risky for us both to travel with the current presidential administration?