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Wrong filing for 7th year

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I am on my 4th year of H1B and current status expires on 09/24/2020. My employer filed for my extension for 3 years which is 1 year beyond my maxed out period. I have approved PERM but my I 140 application is sent out to USCIS with premium processing (dont have receipt yet). I got a RFE from USCIS for my extension asking to explain the third year as I only have PERM approved doesn't satisfy the requirement.

As I dont have approved I 140 my lawyer is going to reply stating typographical error and asking for 2 years of approval. She said USCIS may not consider third year even if I get I 140 approved as it was not approved at the time of filling.


Does someone know if that is a legible reply or there are chances that USCIS will deny the petition and ask to refile? I am worried because of the short time I have on my H1B.


Thank you in advance

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Most likely USCIS will consider the reply from the attorney as an honest mistake and approve it for 2 years. This could have been an avoidable REF if the attorney or employer did the math right. 

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