H1B to EAD and H4

[santipawar]

Dear All,
I have a H1B with green card pending (NIW, I-140 approved, I-485 pending visa number availability). My wife had H1B with one employer. She took up job with another employer which required her to use EAD (as they won't take H1Bs) since April 2009. I would like to know if she is now out of visa status without a H1B. Will she need H4 to keep visa status or its not necessary. Is there any violation of immigrant/nonimmigrant status here. I have read in these forums that many people do this but is this legal and valid? All helpful suggestions will be greatly appreciated. Thank you all in advance for your help.
Santosh

 

[TheRealCanadian]

I would like to know if she is now out of visa status without a H1B. Will she need H4 to keep visa status or its not necessary. Is there any violation of immigrant/nonimmigrant status here.

She is legally present, but not in a valid non-immigrant status. This is a minor technical distinction; the only time it would be important is if she needs to file a new I-485.

 

[santipawar]

Thanks a lot TheRealCanadian for your reply. Is it possible to apply for H4 now without any issues. Also will it be possible to reclaim her H1B after few months.

 

[TheRealCanadian]

Is it possible to apply for H4 now without any issues.

She'll likely need to leave and re-enter the US to do this.

Also will it be possible to reclaim her H1B after few months.

Probably, again by re-entering the US.

 

[santipawar]

Thanks a lot TheRealCanadian. If she gets H4 now will she be able to use EAD and continue working. Are EAD and H4 mutually exclusive-if you have one you can't have the other?