I Need To Leave My Employer – What Is Going To Happen?

 

One very common question that I receive from Subclass 457, 186 and 187 visa holders is: I need to leave my employer – what is going to happen?

You may want or need to leave your employer for a number of different reasons. The below are just some examples that I have encountered:

  1. My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
  2. My employer isn’t paying me the salary that was specified in my contract and/or visa application
  3. The ownership of my employing company has changed – I do not get along with the new management / owner
  4. I’ve been offered a role with another company and I want to take this
  5. My employer no longer needs my services and they have terminated my employment

The events that may occur following the termination of your employment does depend on the visa that you hold. In this post, I will outline the various consequences that may result when you end your employment.

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457 visa holders

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If you want to change employers

Firstly, you need to ensure that your prospective employer is eligible to sponsor you for a 457 visa. This generally means that they need to hold Standard Business Sponsorship and that this sponsorship is valid (or that they are eligible and willing to apply for this). Your prospective employer will need to lodge a 457 nomination application and have this approved before you can start employment with them.

Changing employers and completing current employment obligations

As a 457 visa holder, you can only work for your sponsoring employer and in your approved role.

The exception to this is when you are changing your employer and 457 visa sponsor. Even after the 457 nomination application for your new employer has been approved and your sponsorship has changed to this new employer, you can continue to work for your former employer and sponsor to ‘fulfil a requirement to give notice of termination of employment’.

Basically, you are allowed to fulfil the terms of your employment contract and serve out any required notice period.

If you end your employment with your sponsor (or if your sponsor terminates your employment)

Your 457 visa is subject to condition 8107 – this condition requires you to remain employed in your nominated role with your sponsor. If your employment ceases, then your employer is obligated to notify the Department.

If more than 90 days has passed since your last date of employment, then you are considered to be in breach of condition 8107 and the Department may issue you with a Notice of Intention to Consider Cancellation. If you intend to lodge another visa application, then you can discuss this matter with the Department and see if they can give you a little extra time to prepare and finalise the application (evidence supporting your claim that you will be lodging a genuine application may help you case).

If your employer notifies the Department that you have ended your employment and you are outside of Australia, then the Department can cancel your 457 visa without notifying you.

Covering the cost of your flight to leave Australia

Once you have ceased employment,  you can make a written request to your former employer and request that they cover the reasonable cost of your departure. Your former employer is obligated to cover this cost if it receives such a request.

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Employer Nomination Scheme – 186 visa holder

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In the visa application form, as the applicant, you are required to declare that you:

  1. Agree to work in the nominated position for at least two years
  2. Understand that if you as the applicant, or any family members included in the application or third parties acting your behalf, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and you may be subject to three year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.

Effectively, this means that when your visa application is lodged, you must have the intention to work for your sponsoring employer in your nominated role for at least 2 years from the date that the visa is approved.

Once you have obtained your permanent residency visa

Once you become an Australian permanent resident, the situation does change a bit. Generally speaking, there is nothing from a migration law perspective that can really prevent you from changing your employer or your role.

People tend to worry about whether their permanent residency visa will be cancelled if they leave their employer before completing 2 years of employment. This will generally not occur unless you have provided the Department with ‘false or misleading information, or bogus documents either knowingly or otherwise’.

In my view, even if the Department is informed about your cessation of employment, they will not act to cancel your permanent residency visa unless they are provided with some clear evidence of fraud or misleading behaviour in relation to your visa application (e.g. an email in which you state that you intend to quit the moment that you obtain your permanent residency).

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Regional Sponsored Migration Scheme – 187 visa holder

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Section 137Q gives the Department the power to cancel the permanent residency that you obtained through RSMS. The section itself is relatively straight forward and states that permanent residency granted under the RSMS pathway may be cancelled if:

  1. You do not commence employment in your nominated role within 6 months of the date of approval (if you are in Australia at the time of approval) or within 6 months of entering Australia as the holder of a RSMS visa AND you do not satisfy the Department that you have made a genuine effort to commence employment within the 6 month period; or
  2. You commence employment but you terminate your employment within the first 2 years AND you do not satisfy the Department that you have made a genuine effort to remain in your nominated role for the required 2 years.

Relevant considerations in assessing ‘genuine effort’

If the Department does decide to conduct an investigation, under policy, the following must be considered when the Department determines whether you have made a ‘ genuine effort’ (the below is a direct extract from the Department’s policy):

  1. The visa holder’s reasons and/or circumstances leading to the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
  2. The possibility that the visa holder, in collusion with the employer, does not commence work within the six month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia
  3. In the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort) and
  4. Any other matter which is relevant to the commencement or termination of the employment.

The below is a summary of other relevant parts of the Department’s policy in relation to s137Q:

  • If you are ceasing employment on ‘reasonable grounds’, you are expected to give your employer reasonable notice.
  • The Department is unlikely to decide that you have not made a genuine effort if your failure to commence or your termination of employment was due to circumstances outside of your control (e.g. your employer’s financial loss, bankruptcy or closure of the business).
  • The Department may decide that you have not made a genuine effort if you ‘deliberately damaged or sabotaged the employer’s business to cause the dismissal’.

At the end of the day, policy does state that decisions made under s137Q are a matter to be resolved between the Department and the visa holder. The former employer can provide information to the Department but they are not involved in the ultimate decision-making process.

Consequently, if the Department is considering the possibility of cancelling your visa, the Department will need to contact you to give you the opportunity to present your side of the story.

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Before you ask…

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Please do not ask us whether it is ok for you to leave your employer before completing the required 2 years of post visa approval employment. I’m sorry but I’m not going to respond to comment questions asking me to predict whether the Department will take any action against your permanent residency.

One of our clients did contact the Department before he left his employer – he asked the Department whether it was ok for him to leave and whether the Department would take action against his permanent residency visa. The Department expressly advised:

The Department is unable to determine whether or not a visa would be cancelled prior to ceasing employment. The assessment can only be made after the event, that is, after the visa holder ceases employment with the nominated employer.

If the Department cannot even tell you what is going to happen before they complete an assessment, then I certainly cannot predict the Department’s actions.

I would say that if you ceased employment because your employer no longer needs you (irrespective of why this is the case – it can be a change of management, closure of the business, lack of work etc.), then I think that the Department is unlikely to take any action against your permanent residency.

Also, if you have obtained your Australian citizenship, then I do not think that the Department would take any action against your citizenship if you leave your employer.

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How we can help

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731 thoughts on “I Need To Leave My Employer – What Is Going To Happen?

  1. Ari

    Hi Peng

    Thanks for creating this forum.
    Im on 4th month of my bridging visa waiting decision for 187. Just wondering what happen if my employer fail to pay my me as written in contract? Such as annual leave and hourly rate? And also what happen if my employer bankrupt while Im still on my bridging visa?

    Thanks

    Reply
    1. Peng Cheng Post author

      Sorry but I don’t think that the Department can approve your application if the business closes before your application is decided.
      PC

      Reply
  2. Paul

    Hi Peng
    Now I am in 457visa as a restaurant manager .which will finished in may 2018.
    I have also applied 186 visa 18 month before , which is still pending .i have not heard anything from department since I applied .
    So I am thinking about to withdraw that 186 application.
    Again I have applied 190 visa application from qld where I am currently working . my file is already lodged 1 month before . Now my restaurant is also just closed what would be the condition now ?
    What about my Woking right ,?
    Does it effect to my 190 visa application , from where I got employment reference , Which is also called job offer?shall I need to speak with department about restaurant close ?

    Reply
    1. Peng Cheng Post author

      Hi Paul,
      I’m sorry these such broad questions aren’t appropriate for these comment fields.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need assistance.
      PC

      Reply
  3. Thomas Smith

    G’day Peng,
    One question, I am about to apply for a 187 RMS visa with my employer (currently on a 457). Are you able to shed any light on what might happened to the visa application if I lose my job before I have a result from immigration?
    Cheers T

    Reply
    1. Peng Cheng Post author

      Hi Thomas,
      I don’t think that the Department can approve your application if you are no longer offered the role at the time of decision.
      PC

      Reply
  4. Dean

    Hi I was on a sponsored 457 visa and decided to return home to the uk and leave my job. Now I have been home 4 weeks I have decided I would like to go back, and my employer would be willing to nominate me again. As this is within the 60 days or 90 days as it says in my visa of finding another job/sponsor would this be ok to get me back into the country, or does once I leave the country cancel my visa? Also I was in my visa for almost 3 years so does this mean if I get the job I can apply for PR?

    Reply
    1. Peng Cheng Post author

      Hi Dean,
      You can use VEVO to check if your visa is still active: https://www.border.gov.au/Busi/visas-and-migration/visa-entitlement-verification-online-(vevo)
      You should be able to return to Australia to work on your 457 visa for your approved sponsor if your visa is still valid.
      Please see post in relation to permanent residency visa requirements: http://myaccessaustralia.com/employer-nomination-scheme-subclass-186-visa/
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  5. Christian

    Hi Peng,

    I´m currently under 457 which will be expiring end of Nov 2017. I’m starting the process to apply to the independent skilled visa (189). Is it realistic to think I would get an invite before end of Nov so I transition to a briging visa or should consider lodging a new 457 with my employer?

    I appreciate it your advice.

    Cheers.
    Christian.

    Reply
  6. CJ

    Hi Peng,

    Excellent forum!!!

    I have studied MBA in Australia and am working with a company for 14 months now and have applied for ENS directly. Things have suddenly changed and the company seems to be trying to get rid of me in few months…. Not sure what will happen to my ENS application and suggest if anything can be done here

    Reply
    1. Peng Cheng Post author

      Hi CJ,
      Sorry but the Department can’t approve this application if the business decides to terminate the role and visa sponsorship before the Department decides this.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need advice in relation to your visa options.
      PC

      Reply
  7. PS

    Hi Peng,

    I have a few questions regarding to 457(valid till 2020) and ENS visa and my current situation.
    I’ve been working for my current employer for 1.5 year on 457 visa under their sponsorship.
    They also applied for my ENS visa for me but unfortunately last week my sponsor company has terminates my employment.

    1. Will there be a chance that the immigration department rejects the ENS, I ask them to wait for 1 more month which is my notice period. and they are ready.
    2. Should I go refund and withdraw my application? OR wait 1 more month?
    3. I also got other employee who is ready for 457 and ENS, but, can update new employer on my existing ENS application or should I go new ENS application.
    What is opinion.
    I would be really happy if you can answer my questions.
    Thanks.

    Reply
    1. Peng Cheng Post author

      Hi PS,
      I don’t think that the Department can approve this application if they are aware that the nominated role is no longer offered to you.
      Generally speaking, you can’t get a refund if the Department refuses your applications.
      I think that you would need to lodge new applications if you want to apply with a different business.
      PC

      Reply

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