H1B application while EB1 pending

[rchaudhuri76]

Hello!

I have a question regarding whether my employer can renew my H1B while my EB1B application is pending. My EB2 was filed in 2010 and I have been waiting for my priority date to be current. Last November, I filed a petition in the EB1B category and my application is still pending. My current H1B expires in August 2018 and I have been trying to get my employer to renew my H1B before it expires. It was my understanding that my employer could do so as long as my EB1 is pending (of course they can also if it gets rejected) but my employers legal counsel thinks otherwise. He cited the following text from CFR 204.5 which I think is quite vague since my EB1 receipt notice does not reflect my EB2 priority date.

"See 8 CFR 204.5(e)(1) (“A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under section 203(b)(1), (2), or (3) of the Act for which the alien may qualify.” [emphasis added]).  Therefore, you are not eligible to extend your H-1b status unless or until the EB-1 I-140 is either denied or withdrawn."

I was wondering if you are aware of any USCIS document that clearly addresses this issue. I will appreciate any help that I can receive.

Best