H1B RFE - Based on Unemployment days count (154 days accrued unemployment days on STEM OPT)


My wife was in F1 OPT. Then on F1 STEM OPT. In those two jobs, she was in total unemployed 154 days before applying or sending the H4 application COS. Then in between the applications, she got a job at H1B instituition(cap-exempt) and they applied for a premium visa. Now she got an RFE for H1B visa application asking 2 things

  1. That her stemopt was related to her studies (which is fine)
  2. That she lawfully stayed in F1 and employed ( my employer who applied for H4 delayed sending the application by 4 days, also at that time we were thinking that we get 90 days unemployment in OPT and separate 150 days in STEM OPT and that’s why we didn’t push the lawyer a bit more).
    Now, what should we respond to in RFE? That we didn’t know or what are some of the acceptable reasons that we can respond?

Her current H1b lawyer mentioned the following

  1. Either her H1 could be denied stating that she overstayed the F1 by 4 days.
  2. Wait for H4 COS result to come back positive and then respond to RFE(response time is 60 days)
  3. Respond to RFE stating that my wife overstayed and asking them for consular processing in my native country (which depends on if the employer will accept the option)