SetMax said:
The questions answers status issues and not petition.
Since you are putting so much faith on Murthy.com, I'll quote something from their site. I won't comment on 60 days part because I couldn't find actual word in law so far. They are saying one must join H1 employer once status got changed(60 days later, they say) , otherwise, it is considered out of status.
Question: My wife got H1B approval notice. How long can she wait before accepting employment? Is there any specific time limit?
Answer: The law requires that one who has filed a change of status (COS) from H-4 to H1B commence employment no later than 60 days after obtaining the H1B approval. Since the last action of the USCIS is the approval of the COS from H-4 to H1B, the person is considered in H1B status.
Failure to work will result in the person being considered out of status, and down the road, ineligible to obtain the I-485 approval if the time out of status is 180 days or longer. Jul-25-2005.
And here is another article from Attorney Oh's site.
According to this Q&A, memo from Effren Hernandez is about the change of employer within H1 status. It says if H1 petition is valid, one can change employer w/o filing transfer. However, it also says they apply "last action rule" strictly between different status'. If this is the memo Murthy is talking about, it might be possible that their office made their own interpretation on COS case, which, if so, is not CIS's stance.
Q-60 (03-09-2006): I have been working in H-1B status for several years. When I started H-1B status, two different companies filed and obtained H-1B petitions on my behalf. Out of the two companies, I chose Company Poor and worked with the Poor company. In March 2005, I left and returned to the U.S. and resumed my employment with the Poor company. H-1B was valid until January 2006. Unfortunately, I was laid-off by the Poor company and joined the Second company based on the existing approved H-1B petition which is valid until November 2006. I wonder whether I am out of status. What is my course of action at this time?
A-60: Your question involves two issues: One is whether you can continue a H-1B status when you change to a new employer that has already obtained H-1B petition for you simultaneously with your current employer. This often happens when you have two approved H-1B petitions and take one of the two jobs and move to the second job or after you move to the second job and return to the first employer. There is no specific regulation on this issue, but this issue has been handled by the opinion of Effren Hernandez, Director of Business Division of USCIS in Washington, D.C who opined that no matter how many approved petitions an alien has by different employers for the same alien, all of these approved petitions remain valid and the alien can change from one of these employers to another of these employers without filing a new H-1B petition.. Accordingly, there are many H-1B aliens who changed the job to the second H-1B employer and moved back to the first employer without filing a new H-1B petition. This rule applies when you remain in the United States. However, you have a different issue involving your overseas trip and returning with a new I-94. This is an issue of so-called "last action theory." According to this theory, I-94 status is determined by the "last action" taken by the DHS. For instance, if a H-1B alien departs with the Service Center approved H-1B approval notice with a new I-94 at the bottom changing from L-1B to H-1B or F-1 OPT to H-1B and returns from the overseas trip with a new I-94 issued by the immigration inspector at the airport giving L-1B or F-1 because of a number of issues, the I-94 which was issued at the airport is the "last action" of the DHS and it determines the alien's nonimmigrant classification as well as the duration of permitted stay in the United States.
This last action theory has been strictly enforced for years by the legacy INS and the current USCIS or DHS when it involved a change of nonimmigrant status. However, they applied somewhat different standards when it involved not change of nonimmigrant classification but extension of the same nonimmigrant status or just change of employment in the same nonimmigrant classification. In these cases, the INS or USCIS have opined in various situations that such last action would not affect change of employment using a valid H-1B petition after returning from the overseas trip. The typical opinion involves John Brown letter which was written in response to this reporter's letter. This opinion appears to be followed by the agency. It appears that you case falls under this category. There is, however, still lingering unresolved issue as to how different officials will take it differently when the I-94 which was issued by the inspector at the airport constituted the "last" action of the government agency. Accordingly, just for safeside, you may feel comfortable by leaving and returning to the U.S. obtaining a new I-94 at the airport or port of entry. This can be achieved if you have a valid H-1B visa in your passport. If you do not, then you can still travel to Canada or Mexico and return within 30 days with a new I-94 issued at the time of returning. This should happend within 180 days before your Poor company's H-1B petition expiration date. There are some aliens who are not eligible for the automatic visa revalidation when one visits Canada and returns to the U.S. within 30 days. But India is not one of those ineligible nationalities. For the unsettled second issue, lawyers would recommend you to make such trip as soon as possible. Good luck.
barterback: I have sent PM regarding your COS.