Dear Mentor:

After losing my job, what is my visa status?

I came into this country on the H4 visa and then moved to the H1 visa beginning this year. I lost my job 10 days ago. My husband has applied for I-485 & EAD [Employment Authorization Document]. Does it make me legal to stay even if I have lost H1 status? Also, will my H4 automatically become valid if my H1 is invalid?

Changing Visa Situation, Dallas,Texas. USA

Dear Changing Visa Situation:

While we are happy to offer you our informed opinion, we are not immigration lawyers. You will be well advised to contact an immigration lawyer and/or the US INS (Immigration & Naturalization Service).

First some terminology: The H1 visa is a temporary worker visa in the US. The H4 visa is issued to the dependents of an H1 visa holder. The Employment Authorization Card (EAD) is often called a work permit. The EAD allows the applicant to work for another part-time job or side business without any need to file for the H1B visa, as long as the applicant keeps working for the employer who filed his/her Green Card (permanent residence status). It allows the spouse of the EAD applicant to work for any company. The I-485, Application to Register Permanent Residence or Adjust Status, is submitted by an individual wishing to obtain permanent resident status (Green Card).

Only one visa status is valid at a time. There is no automatic sequential mechanism that allows a visa to revert back to an earlier status. You are expected to have your visa status changed through the INS when your situation changes. Consequently, your H1 visa will not revert to the H4 status automatically; you will have to go through the INS to obtain such a change.

Your situation of losing a job while being on the H1 visa status is becoming more common due to a decline in the US economy. It has been a general understanding that the H1 visa holder must leave the country within 10 days after losing the job for which he/she was granted the H1 visa. There is no such requirement in the INS rules. While the INS has not issued an official ruling, the INS officials have made public statements in the media to the effect that they will let the "situation slide." Eyleen Schmidt, an INS spokesperson, has said, "The H1 visa holder can stay in the country until the date on the entry ticket in the passport." We are not sure how this statement will play out in individual situations. It would seem to us that given the current economic environment and the publicly stated position of the INS, you could be "in status" (in legal status) in the US while you search for another job. We would, however, be careful with this interpretation of the INS rules. You should contact the INS or an immigration attorney to ensure that you take all necessary actions.

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