H4 Form I-539 Application Denied, Please Help!!

[zhenlong]

Hello, 

I have an urgent question really need your help! This stressed me and wife for the past 10 days, and we are still struggling of what to do. Following is my scenario:

I am on H1B status valid until 01/15/2019. My wife filed Form I-539 on January 22, 2016, and received a Request For Evidence notice in July, asking for my I-94 form and my pay records. 

She sent the required document back within the required time slot but forgot to include the original notice(Blue Sheet) with the mail. 

On November 01, she received the decision letter with Abandonment Denial. The reason is that "USCIS issued a request for evidence providing you 30 days in which to respond. That time period has elapsed and, as of this date, there is no record of a response to that request." The decision was dated on Oct 25, 2016. 

Apparently, they didn't receive my wife's letter (or they received but they could not match the document with her case since the original notice was not attached to the mail).  

My wife's I-94 was expired January 2016. So she is now out of status. 

My questions:
1) Could we file a Motion to Reopen?  She did send the document and has USPS delivery proof, but as mentioned, she did make a mistake without including the original notice. 

2) If she opts to go back to China to get a new H4 visa, she can only depart around end of November since we have a 7-month daughter who is on breastfeeding, and we need to apply for passport and travel document for my daughter so she can travel with my wife.  At that time, my wife will be overstaying for about a month; In this case, my question is: 3) will this be an issue during the visa interview ?  4) How could she explain the overstay when asked by the visa officer?

I have attached the Request For Evidence and Notice of Decision letter in this post. 

Thank you so much for your help!

[pontevecchio]

If she has overstayed the last I94 by 6 months or more she will be subject to a ban. You need to get a Lawyer involved ASAP and then move on from there.

[zhenlong]

22 hours ago, pontevecchio said:

If she has overstayed the last I94 by 6 months or more she will be subject to a ban. You need to get a Lawyer involved ASAP and then move on from there.

 

Are you sure?? I read the following, and I think the overstay time should count from the Denial letter which is Oct 25 2016. 

" The Adjudicator’s Field Manual (AFM), however, has prescribed much more liberal policies for the Service’s response in such matters. The AFM states that, so long as the petition is not denied on the grounds that it is frivolous or untimely, or that the applicant worked without authorization, unlawful presence will not accrue before a decision is made, no matter how long an application is pending. See AFM at 40.9.2(b)(3)(B). The above statutory and policy protections apply even when the applicant’s request is denied, with the above stated qualification that it must not have been filed frivolously—if the application is found to have been filed fraudulently or in an untimely manner, or if the applicant worked without authorization, the date of accrual begins the day his or her I-94 expired. " (http://*****************.com/*************************)

Thanks!

[pontevecchio]

All this is academic. Get a Lawyer involved. If he asks her to leave and return with the H4 visa then have her do so.

[pontevecchio]

Two things involved here. If she filed the EOS after I94 expiry in January, that complicates things. Your take should be that the RFE was adequately answered and hence she should be given the EOS. They will not listen to you. Get a lawyer involved.