H1B transfer and 60 days grace period

[ck_user]

I got laid off by employer A, and they are ready to re-hire me back in a different position with an H1-B amendment. Meanwhile, I  got an offer from Employer B and they have initiated H1B transfer. They both have submitted the petition within 60 days. In case, I get an RFE for one of the applications (employer A), and approval in other(employer B), can I switch to employer B(one with approval) from employer A(one with RFE) which I chose initially. 

[JoeF]

Employer A was required by law to inform USCIS that you no longer work there. If they want to hire you back they would have to file a new H1 petition. If they didn't inform USCIS they would have to pay you for the time you are not working there.

 

[User099]

Yes.

[ck_user]

@JoeF, I am still not sure why employer A considered it as an amendment vs a new petition, is that probably because it is still within the 60 days?

Edited December 18, 2019 by ck_user

[ck_user]

@ User099, When you mentioned "Yes", I understand I would be able to switch between the employers at a later stage even though I choose employer A initially? Is that right?

[gopalakrishnach]

can I switch to employer B(one with approval) from employer A(one with RFE) which I chose initially - Yes once employer B is approved you can switch to B irrespective of A's petition result.

[JoeF]

4 hours ago, ck_user said:

@JoeF, I am still not sure why employer A considered it as an amendment vs a new petition, is that probably because it is still within the 60 days?

It would have to be a new H1, unless they haven't informed USCIS that you are no longer work there. In that case, they would have to pay you for the time you didn't work there, and they could file an amendment. Filing an amendment means that you are still employed by them, and they have to pay you for all the time.

https://www.foreignlaborcert.doleta.gov/faqsanswers.cfm#q!96

"Additionally, an H-1B employer is relieved of the responsibility to continue paying the required wage to the nonimmigrant worker throughout the authorized employment period specified on the LCA only if a bona fide termination is effected. A bona fide termination requires that the H-1B employer notify both the nonimmigrant worker and DHS of the termination of employment. Additionally, where the employer has terminated a nonimmigrant worker, the employer must pay for the nonimmigrant's cost of return transportation. Once these conditions are met, the employer will be relieved of that wage payment obligation."

Edited December 18, 2019 by JoeF

[User099]

6 hours ago, ck_user said:

@ User099, When you mentioned "Yes", I understand I would be able to switch between the employers at a later stage even though I choose employer A initially? Is that right?

Yes, if both petitions are approved you will be able to pick which employer you want to work for.