I129 denied - I94 expired -appeal filed since last 60 days - Pls help and Thanks.

[SD1122]

Hi,
I have a I129 denial notice served by USCIS and an appeal was filed by the company within the 33 days notice period. I wanted to know if i can in the mean time apply for a new H1B staying in USA.
My I-94 has expired since october 2008.
Thanks,