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Delay in RFE response for H4 extension

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  • Delay in RFE response for H4 extension

    I had applied for H4 extension (I-539) for my wife before its expiry (09/01/2014) and received a RFE asking for my recent paystubs. We however missed to respond within a month, the time limit specified in the document and yesterday received a letter from USCIS stating the I-539 is denied and with expired H4/I-94 she is currently out of status. We called USCIS and they asked us to send a letter of forgiveness and they might consider it or leave the country and reapply H4. We had our first baby during the time we received the RFE letter and can provide the birth certificate if that help justifying our failure to respond within time.
    I was looking over internet and found "Nunc-pro-tunc" petition which require these four conditions:

    1) The reason for the delay in filing the visa petition must have been due to extraordinary circumstances beyond the control of the employer or employee; 2) The employee must not have any other visa status violations; 3) The employee must be a bona fide nonimmigrant; 4) The employee must not be in removal proceedings.

    We're meeting remaining three and for the first point, not sure if giving birth during the RFE response time could be considered as an extraordinary circumstances.

    I would like to know opinion from you guys. Has anyone failed to respond to RFE on time and what are the consequences? Leaving the country and refiling H4 could be risky and will be our last option. Certainly appreciate the valuable suggestions.

    Wishing everyone of you a very happy and prosperous new year!

  • #2
    Follow up

    I did speak to a local attorney and he has asked us to file a motion to re-open the case within 30 days. It will include documents like child birth certificate, original I-539 petition, RFE documents and a letter explaining how the RFE response was missed citing medical ground. He, however mentioned that there is no guarantee and we've 50-50 chances. The entire process will cost almost the same fortune as filing H4 from home country (including travel cost). In case the motion is denied or there is no decision from USCIS within 180 days of 12/22/14 (when we received the denial letter), we need to leave the country and file a new H4. I would like to file the motion versus travel but at the same time would also like to evaluate the odds.
    I would appreciate for any guidance. Thanks!


    • #3
      As told by attorney the odds seem equal. Were there complications during birth? If yes, add the medical reports too.

      This is my opinion not legal advice.