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Judith Ludwic
Judith Ludwic, Immigration Lawyer
Category: Immigration Law
Satisfied Customers: 28922
Experience:  34 years as practicing immigration attorney, with non-immigrant and immigrant visa experience.
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I am on H1B status valid until 01/15/2019. My wife filed

Customer Question

Good morning,
I am on H1B status valid until 01/15/2019. My wife filed Form I-539 on January 22, 2016, and received a Request For Evidence notice in July, asking for my I-94 form and my pay records.
She sent the required document back within the required time slot but forgot to include the original notice(Blue Sheet) with the mail.
On November 01, she received the decision letter with Abandonment Denial. The reason is that "USCIS issued a request for evidence providing you 30 days in which to respond. That time period has elapsed and, as of this date, there is no record of a response to that request." The decision was dated on Oct 25, 2016.
Apparently, they didn't receive my wife's letter (or they received but they could not match the document with her case since the original notice was not attached to the mail).
My wife's I-94 was expired January 2016. So she is now out of status.
My questions:
1) Could we file a Motion to Reopen? She did send the document and has USPS delivery proof, but as mentioned, she did make a mistake without including the original notice.
2) If she opts to go back to China to get a new H4 visa, she can only depart around end of November since we have a 7-month daughter who is on breastfeeding, and we need to apply for passport and travel document for my daughter so she can travel with my wife. At that time, my wife will be overstaying for about a month; my question is: will this be an issue during the visa interview ? How could she explain the overstay when asked by the visa officier?
Thank you so much!
Submitted: 10 months ago.
Category: Immigration Law
Expert:  Judith Ludwic replied 10 months ago.

Hello my name is ***** ***** I am delighted to answer your questions. I am reviewing it and will post your answer momentarily.

Expert:  Judith Ludwic replied 10 months ago.

Hello my name is ***** ***** I am delighted to answer your questions today. I have 35 years experience as an immigration lawyer. You can send a request to speak with me by phone by clicking on the "Call Me" button on this Q&A page.

Did your wife send the reply via method with delivery confirmation? Express Mail, Certified Mail,Fedex? Does she have proof she sent and they received?


Customer: replied 10 months ago.
she sent with USPS certified mail. We have the tracking number showing the letter was delivered.Track # 70150640000782686273
Expert:  Judith Ludwic replied 10 months ago.

If she departs she triggers the 10 year bar for being out of status for more than a year or the 3 year bar for more than 6 months. Absolutely seek out an attorney to file the MTR for her.

She has proof of timely response and made a very common error of failing to include the top sheet.

But don't do this yourself. A lawyer knows how to write a Memorandum of Law to support her timely filing using key words and citing the regulations. This can be fixed. But you need help. They can also draw in the legal theofy of Nunc Pro tunc for government error in not matching up the file to the documentation. Please don't do this yourself.

And do NOT leave the US until it it is fixed.

I hope that I have provided excellent service and, if so, would love a 5 star rating. If not, please let me know how I can further assist you. In the future, you may begin your questions with “FOR JUDITH” and I will be your personal immigration expert.