Neuman Vong had done everything Elon Musk asked of Tweeps.
After making it through the first round of employee cuts in November, he had accepted Musk’s pledge to “be extremely hardcore” in his commitment to the billionaire’s vision for the company. Not that Vong had much of a choice: Like so many other foreign tech workers, Vong, a 39-year-old software engineer who’s originally from Australia, couldn’t risk jeopardizing his visa and being kicked out of the U.S.
So, in December, when Vong’s director told him it was safe to take a long-planned trip back to Melbourne for the holidays, Vong believed his job would be waiting for him when he got back. After all, there weren’t many people left on his team, which played a crucial role in managing site traffic.
About one week into his trip, Vong’s director got fired. On December 17, so did Vong. An email Vong received gave no explanation for the decision other than that the company had “identified roles within our organizational structure that are no longer necessary.” Now, Vong is stuck overseas, unsure if or when he can ever get back into the U.S., which has been his home for the past 13 years.
“Either I get a new job and a visa, and I go back,” Vong tells Fast Company, “or I don’t.”
Vong’s case exposes a major blind spot in the country’s high-skilled worker visa system. Both H-1B visas and E-3 visas (the latter of which is specific to Australians) offer workers a 60-day grace period after they’ve been laid off to find a new job or leave the U.S. That’s challenging enough for the growing numbers of foreign workers getting swept up in industry-wide layoffs or losing their spot in the interminable green card process.
But Vong’s situation raises a different question for these workers altogether: What happens when they lose their jobs while they’re already out of the country?
According to Steven Brown, a partner at the law firm Reddy & Neumann who specializes in nonimmigrant visas, the law is not on Vong’s side. “The 60-day grace period is specifically listed in the regulations under ‘period of stay,’” Brown says. “When the nonimmigrant visa holder leaves the country, they are no longer in that status.”
“No status, no grace period, which is why those outside the United States are immediately prevented from reentering at the point they are notified of job loss,” adds Xiao Wang, CEO of Boundless Immigration, a Seattle-based tech firm that helps people apply for citizenship and green cards. Wang says stories like Vong’s are “happening all over the place right now.”
Workers on H-1B and E-3 visas are free to come and go over U.S. borders, as long as they’re actively employed. Brown says that, when advising clients, he suggests workers travel with a letter from the employer vouching for the worker’s active status, which they can present to customs upon reentry. The challenge in Vong’s case is what exactly constitutes active employment.
When he received his termination notice by email in December, Vong says he was cut off from all of his corporate accounts immediately. Days later, he received another email, which he shared with Fast Company, that was specifically for foreign workers on visas. It read: “Once terminated you are no longer work authorized with immediate effect.” And yet, because of a California law requiring workers to receive at least 60-days’ notice before a layoff, Vong has technically been waiting out a two-month “Non-Working Notice period,” which ends next week.
That, Brown says, leaves a lot of discretion to an individual customs agent to decide whether Vong is, in fact, an active employee of Twitter. “There’s a big debate in the immigration attorney sector on when the 60-day grace period starts when there is a severance. Is it the day of termination or the last day of pay?” Brown says, noting that U.S. Citizenship and Immigration Services has not put out any guidance on this question.
Vong created a viral tweet thread about his situation in late January, laying out the confounding complexities of his situation. In one tweet he wrote, “I’m technically still employed so my visa should be valid right? I wish.” Soon after Vong’s tweet went viral, he says he was connected with a Twitter executive who told him that because he’s still on the company’s payroll, he should have no problem returning to the country. Neither USCIS nor Twitter responded to Fast Company’s request for comment.
But an attorney Vong consulted has warned him that following Twitter’s advice could be risky, given the lack of clarity in the law and the very public nature of Twitter’s recent layoffs. “The officer could be like, ‘Well, where’s your badge? Bring up your email. Show that you still have access and that you’re still active.’ And I wouldn’t be able to,” Vong says.
That wouldn’t just prevent Vong from getting into the country. It could potentially get him barred from entering again for years — or even permanently. “If Customs and Border Protection determines that you are actively misrepresenting your current status, not only can they deny you entry, but they can also slap you with a fraud or misrepresentation ineligibility, which is permanent and can make it very difficult to obtain a future visa,” says Wang.
Both Wang and Brown believe Vong is right to stay overseas for now. “It isn’t advisable to try to get into a legal semantics argument with CBP,” Brown says.
It’s also crucial for employers who want to take a more compassionate approach to layoffs to be mindful that this legal gray area exists. After all, as difficult as Vong’s situation is, Wang warns it could be so much worse. “Imagine that you have a spouse and kids in the U.S. but went back home to visit your parents. Being laid off while on the trip means that you basically can’t come back to the U.S., be with your family, look for a job, settle your affairs,” Wang says. “It is paramount for any considerate and humane employer to consider immigration status and [workers’] current location when moving forward on layoffs to avoid causing additional hardship and tragedy.”
For now, Vong is planning to stay in Melbourne, where he says he’s lucky to have the support of his family, until he can find a job back in the U.S. that will sponsor him. “There’s a safe and proven way to return, and it’s through a new job and visa,” he says.
If that doesn’t work out, he says he’ll likely book a round trip on a tourist visa, giving himself just enough time to pack up his place in Los Angeles and sell his car, before heading back to Australia for who knows how long. After more than a decade living in the U.S. the idea of leaving, Vong says, “is kind of gutting.”
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