H4 Visa denied due to failure to appear for biometrics and stayed in US for 180 days+

[VisaMatters_US]

Hello Sir/Madam,
My wife’s H4 visa was valid till Mar 09, 2020. I recently received a notice of denial for my wife’s H4 petition on Dec 1, 2020 in regards to the petition submitted on Jan 22, 2020. The reason provided for this denial is failure to attend biometrics appointment notice that was supposedly sent on Feb 13, 2020. We never received biometrics appointment notice in our mail or even after contacting USCIS customer service. But we are told we abandoned the application by not appearing for biometrics resulting into denial.

In the month of June 2020, I changed my employer and a new H1 and H4 petition was filed for me and my wife respectively. I got approval on my H1 but we are still waiting for my wife’s biometrics appointment notice on the new petition as well.

This denial notice states that if applicant accrues more than 180 days of unlawful presence in the US, and then departs, then he/she is inadmissible to the US for a period of 3 or 10 years. Please help us urgently with couple of questions -

1. Since my wife has been deemed out of status per the notice, but she has continued to stay in the US waiting for her earlier H4 adjudication and now the new H4 adjudication (also taking into account the Covid-19 pandemic due to which she could not travel), we wanted to know if she can continue to stay in the US or needs to travel back to India immediately.
2. What is the legal option to rectify this situation and help her get a valid H4 visa.
3. The notice has a warning stating if applicant has accrued more than 180 days of unlawful presence in the states, and then departs, is inadmissible to the US for 3 or 10 years. It also says we can file a motion to reopen this petition within 33 days of this notice. If we file this motion, would this help us avoid this kind of a ban of admission into the US? Also, would this also help us rectify any unlawful presence that she might have accrued?

Looking forward to any kind of advice/legal solution/past experiences in this matter. Thanks!!

[rkk09]

Hi Member,
Since my wife has been deemed out of status per the notice, but she has continued to stay in the US waiting for her earlier H4 adjudication and now the new H4 adjudication (also taking into account the Covid-19 pandemic due to which she could not travel), we wanted to know if she can continue to stay in the US or needs to travel back to India immediately.
Answer: One argument is, you have one H4 petition pending with the help of receipt, you can stay in the USA. Other portion is, since you got denial may be your another H4 petition also will be denied.. So for safer side, better to leave the country as soon as you can.
What is the legal option to rectify this situation and help her get a valid H4 visa.
Answer: Leave the country and get H4 visa stamped at home country US consulate/ embassy.
The notice has a warning stating if applicant has accrued more than 180 days of unlawful presence in the states, and then departs, is inadmissible to the US for 3 or 10 years. It also says we can file a motion to reopen this petition within 33 days of this notice. If we file this motion, would this help us avoid this kind of a ban of admission into the US? Also, would this also help us rectify any unlawful presence that she might have accrued?
Answer: If you file MTR, then you can stay in the USA to hear the status of MTR.
Thanks