H1-B approved for me but H4 expired for wife because employer overlooked

[Andrew_E]

Hi,

Both my H1-B and my wife's H4 expires in 02/28/2011. My employer filed for my extension before the expiration and got my approval in 04/22/2011. Only then we realized that my wife's h4 extension was not filed along with mine. As soon as we realized that, my employer filed for her extension with affidavit indicating it was the employers mistake and filed for I-539 with a receipt date of 5/5/2011. Besides that I also bought ticket for my wife and she left the country on 05/15/2011. (<180 days)

Now the I-539 is in pending status, and I'll be going back to my country to get my stamping and hoping to get her h4 as well, using my H1-b approval notice.

In the Ds-160 form for my wife, there is a question "Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa"

My question is, should I put yes and explain the situation or should i put no. I wanted to say Yes but my attorney advised that, since the case (I-539) have been filed and still in pending status she did not overstay or violated her visa. Is this correct?