HELP! I-485 RFE on historically out of status!

[sky1986 0]

I have a very urgent issue needing your kind suggestions and help. Here is what happened:

 

Me (H1B visa) and my wife(H4) submitted I-485(EB3) in 11/2015 together. Our priority date is in 09/2013. She got a RFE in 02/2017, asking for evidence showing she had maintained a non-immigrant status between Oct.11, 2014 to Apr. 23 2015.

When we look back on this period, we found her H4 visa expired on Oct. 10, 2014 but she continued to stay in US until Apr. 23, 2015, accumulating 195 days.

The reason that she chose to continue staying was that she has a H1B petition pending at that time, which is submitted in Apr. 10, 2014 when she was in US. Unfortunately, this H1B application at the end get denied in May 4, 2015 (when she was back in China since April. 23 2015) The reason stated in H1B rejection letter were all about the professional background issues, nothing regarding her status.

After studying and consulting, we found one key point should be that her COS (Change of Status) was actually abandoned when she left US in 06/2014. This leaves her with no status after her H4 visa expired on Oct. 11, 2014, even though her H1B petition is still pending.

However, we have no idea on the COS abandonment and invalidity at all at that time, until we received the RFE letter. One fact is, in May 18, 2015 (after the overstaying in US), she got her H4 visa renewed successfully in China and entered US in 06/2015 and in 10/2015 the 2^nd time without problem. Before we received the RFE, we have never realized her overstay issue and whereby have a chance to correct it with timely response.

Looking backwards we were having so many chances to avoid this issue: One chance was when I submitted my H1B extension application in Jun, 2014, I forget to have her H4 status extended together, maybe due to she has a pending H1B petition.

Now, we are facing a very hard time and a possibility that her 485 application might get rejected, possibly with a 3-year bar due to her overstay without status. We had a newborn in Oct. 2016. If she got rejected, it will be so hard for the family.

May I kindly ask for our kind suggestions on below questions?

1. Considering the overstaying, and that she is admitted twice to US without problems, is my wife “ADMISSIBLE” in Nov. 2015 when she file I-485 petition?

2. Will this overstaying lead a denial of the I-485 application?

3. What is the best way to answer this I485 RFE?   Should we explain the reason of the overstaying is due to a pending H1B petition, her H4 should have got extended with my H1B easily in Jun, 2014 but it’s not done due to her H1B petition?

4. Can we pursue a retroactive extension for her H4 visa back to 09/2014?

Thank you very much and I sincerely appreciate all your kind suggestions on my situation!!