Worried that AOS will fail due to playing in a band and releasing records

[Excession]

Hi,

I like to make music and play music for fun. What I'm trying to determine is where doing this could impact my AOS with regards to illegal work and violating my visa status.

I work full time on an H1B, but for fun at weekends I play in a band. The had a couple of gigs last March which paid some money to the band "pot", but not to me personally. I'm worried that regardless that could still count against me as unlawful working and put my out of status. I suspect it would count as they would regard playing a gig as something someone would normally expect to be paid, therefore it's illegal work.

I last entered in late Fed and my I-140 and I485 were filled at the start of June, so it that is a problem hopefully I've only used up about 100 days out of 180 with regards to section 245k.

My concerns going forwards are the band has more gigs booked in August and September. Assuming I don't have an EAD by then, does each gig count as one work day of illegal work?

We've also released some songs with a label last year. The label plans to release more songs later this year - how does this get counted and tallied up if it's considered work? The label has also sold on our songs from last year to other labels and it's pretty easy to search my name on the internet and see the release dates etc. So while I created the songs last year (i.e. before the time would count for 245k), new labels have taken them and sold it to the public after the 245k clock has started ticking. I'm trying to determine how this would be tallied up and if it would count against me for AOS? Sadly I have no control over the songs as they're owned by the label and I have no control over them. Note we've not made a dime from them either.
I guess I'm worried that if the songs were re-released in April they will consider me as working illegally from the song release date until I get an EAD. If that's the case, then I suspect I'll use up all my days under a 245k exception and my AOS will fail.

Has anyone come across this before or have any thoughts? My own immigration lawyer isn't being particularly helpful.

Thanks.

[inadmissible]

Your case is similar to aliens who write a book, and then enter into an agreement with a publisher. Or an alien who paints and draws, and then has their art put on display in a gallery. The regulations do not directly discuss these activities, but competent attorneys take the position that this is work.

It is interesting that you say you have not made a dime from the songs, but I am going to assume that you entered into such agreements with the intent of being remunerated.

I suggest you reset your 245(k) clock (leave and then get re-admitted) before filing AoS, and switch to a more competent attorney. If an attorney can't give you clear guidance, he is worthless.