My I-140 and I-485 got denial on January 2nd 2013, and my E2 expired on November 14th 2012.
If you question is in regards to the illegal presence bar of three years for illegally presents of 180 days. The date will be jan 2, 2013 as the time your i-485 is pending is considered authorized stay although you have had no status since nov 14, 2012 when your E status expired. It is still advisable to leave as soon as possible and not advisable to stay more than a max of three months as the consular officers at any future interview to return to the U.S. will not look kindly at long period of illegal presence even where the 3/10 year bars do not apply. Please consult with an experienced immigration attorney.
I agree with my colleague.
But, before leaving you should meet with the lawyer that prepared the I-140/I-485.
PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.
Here is the problem. You timely applied for adjustment of status prior to the expiration of your non-immigrant E-2 status and thats fine. You did not renew your non-immigrant status while your I-485 was pending which in technical reasons is ok since your considered in a hybrid authorized stay. BUT, when the case is ultimately denied, thats when the headache starts since now, USCIS may look back and start counting from the time your E-2 expired or they may state in the denial letter as of this date you are now accumulating unlawful presence, etc. regards.