Need an advice, Dependant (H4) issue?

[mv_vsc]

Case:
My friend is working for CompanyA, they have filed H1
in Sep 2002, His H1 got approved after one RFE. in Aug
2003. CompanyA has applied his wife H4 in Aug 2003,
they have not applied his wife H4 not along with
H1(Reason not known may be communication gap). Her
I-94 and visa got expired on 1st June 2003. BCIS/INS
has raised rfe. for CompanyA H4:

RFE details are:

As indicated in the instructions of the Form I-539 the
late filing may be excused if you demonstrate that:

The delay was due to extraordinary circumstances
beyond your control;
The length of delay was reasonable
You have not otherwise violated your status;
You are still a bona fide nonimmigrant; and
you are not in removal proceedings.

Please explain in a letter why your I-539 became
expired

End RFE deatils. At this point CompanyA is not sure
weather they will respond to RFE or not.

In Sep 2003, my friend changed his H1 from CompanyA to
CompanyB. CompanyB have applied for him (H1) and his
wife(H4).
His new H1 got approved and his wife case(H4) in still
under pipline.

Question is:
*. Is her current situation out of status or not?.
*. Since primary is never out of status, will it be a poblem to her status?
*. Does she need to leave this country ASAP?, coz her
I-94 already expired on 1st June 2003.
*. Can she be here in USA until CompanyB H4 decision
has beed made?.

I appreciate your advice in above case.

 

[ginnu]

Question is:
*. Is her current situation out of status or not?.
----- She is out of status and staying illegally in US
*. Since primary is never out of status, will it be a problem to her status?
-------- She will have problem
*. Does she need to leave this country ASAP?, coz her
I-94 already expired on 1st June 2003.

----- Count the days from her I-94 expiry date if she stayed more than 180 days 3 year bar starts,
*. Can she be here in USA until CompanyB H4 decision
has beed made?.

------ if H4 extension is refused she will add more days to her unlawful presence in US, go to good lawyer immediately and send her out of US ASAP, discuss with lawyer

 

[TheRealCanadian]

Let me echo what ginnu has said.

An extention of non-immigrant status must be filed when the alien beneficiary is in status. Since the I-539 was filed after the I-94 expired, then USCIS is very correct in raising an RFE.

Now, you can ask them to be nice and claim exceptional circumstances and let them retroactively approve the COS back to June 1st. The problem is that they're under no obligation to do so, and in most cases will be reluctant. Your odds are not good.

If they refuse the I-539 and the wife is still here on December 2nd (or whenever the 180 days is up), she will be subject to the 3-year re-entry bar. There is no waiver for this, so she should not leave the US under any circumstances after December 1st.

Her best option is to get out of the US as soon as possible. Asking USCIS to approve her I-539 is a huge gamble, since the consequences of losing that gamble are draconian.