8th year, 1st i140 denied denied i485 due to this, new I140 approved

[dex_cer]

hi guys kindly shed some light in my situation
i have i94 expiry feb2016 from MY previous employer (change of employer, did not file and follow up with immigration papers).
now my wife has to work and has 140 and i485 EAD and AP filed march and april 2015.
EAD and AP was approved june 2015
I140 had RFE and response to RFE was received y USCIS march 2016,
I131 Oct 2016 denied (I140 was still pending and no notice recieved)
I1485 denied (checked from USCIS portal) nov 28 based on denial of I140 (Sept 2016) which we did not receive or nor the employer or atty informed us , even now the portal says the i140 documents of rfe response was received march 2016

New employer filed I140 Dec 2016, and approved Jan 2016.
my dilemma
employer lawyer advise to go through CP, we hired a dependable lawyer and will try i485 AOS as we dont want to go home (me and family -wife and kids 1 is USC). if we go through CP as per employer atty our out of status date would be Feb 2016 based on the i94 is this right? so that means its almost 1 year we are OS.
any one who experieced this that I140 is approved despite I94 is epxired ?
when is my i94 effective expiry is it feb 2016 or the date when i got the denial?

[newacct]

I don't think AOS will work. You are out of status; but since you are in an employment-based category, you can still AOS if you satisfy the conditions of 245(k), which is that you haven't been out of status or been illegally working for more than 180 days since the most recent entry. The period when your first AOS was pending which was ultimately denied, doesn't count as lawful status for the purposes of the second AOS's 245(k) 180 days, and counting the time from when your status expired in Feb 2016 until now is way more than 180 days, so I don't think you are eligible for AOS. Maybe if you can get a work status like H1b or L1 and then leave and get a visa and come back, then you would be eligible for AOS.

CP should be fine. The only concern about leaving the country is triggering the 9B unlawful presence ban, where if you accrue 180 days of "unlawful presence" and then leave the US, you trigger a 3-year ban, and if you accrue 1 year of "unlawful presence" and then leave the US, you trigger a 10-year ban. However, you don't have enough "unlawful presence" yet to trigger a ban upon leaving. Usually "unlawful presence" starts accruing when your I-94 expires. However, "unlawful presence" does not accrue while a timely-filed, non-frivolous Change of Status, Extension of Status, or Adjustment of Status application is pending, even if it is ultimately denied. So your "unlawful presence" would only have started accruing from Nov 2016, and it hasn't been 180 days yet.