H1B beyond 6 years! while AOS pending! HELP!

[rwilli]

Hi,

I am on my 6 years of H1b visa, which expired 05/1/2019. I filed I-485 on 02/21/2019, and I filed H1b extension on 04/25/2019. On 07/25/2019, I received an RFE stating that I'm not eligible for extension due to "lengthy adjudication delay exemption". Upon further research I believe i should be eligible for h1b extension using AC21 which "you may exend your H1b status anually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the 6 year limit." My green card was started on 4/30/2018 when I filed PERM.

My scheduled interview is on 10/11/2019, and H1B extension RFE deadline is 10/10/2019. I'm afraid that the IO will ask me about the validity of my H1b since 05/01/2019 even though I have a pending H1B extension. My lawyer just advised me today to leave outside US and come back using my Advance parole card. I find this is weird that he advised me to travel outside 2 weeks before interview.

Doesn't your status automatically change to I-485 pending status if your non-immigrant visa gets denied? I actually have a valid EAD since August 2019 but I'm worried for the period of 05/01/2019 - 07/31/2019 since I have been working during those time. Lawyer told me that H1b extension was needed for me to continue working.

Can anyone please advise if you have any expertise in this situation?

I would really appreciate your help! Thank you so much!

[newacct]

There is no "I-485 pending status". A pending application does not affect your status; you remain on your existing status until it expires. You can stay in the US even if your status has expired, if you have a pending I-485 (Adjustment of Status) or I-539 (Change of Status or Extension of Status). You were staying legally in the US as you had both a pending AOS and a pending EOS. You were also working legally as you are authorized to work for 240 days after your H1b status expires if you have a pending extension.