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

  1. HS

    Hi Peng,

    I was here in 457 Visa sponsored by my employer, I got my PR (Subclass – 190) on 18th of April. I have resigned from my current company on 22nd of May. Would my current employer force me to travel back to my home country ? I am willing to serve 4 weeks notice period here in Melbourne.

    Thank You

    Reply
    1. Peng Cheng Post author

      Hi HS,
      In terms of Australian migration law, you don’t have to go back to your home country and your employer can’t force you to do this.
      PC

      Reply
  2. Frances

    Dear Peng,
    Congratulations for your great blog/website.

    I’ve finally received a granted 186 subclass visa(permanent residency) , after transition stream of 457 visa.
    I’ve been approached by a big company offering to me a better offer and great conditions, considering that I run a family with a newborn of 7 months old and a high mortgage to pay, I really need to catch this train and leave my employer.
    My questions:

    – Do I need to advise the Immigration dept. in case I want to leave ?

    – Is my PR in discussion ???

    The conditions of the visa are NIHIL, please give me a your opinion.
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Frances,
      I don’t think that you have a legal obligation to inform the Department.
      Sorry I can’t predict the actions of this government or the compliance team.
      PC

      Reply
  3. JJT

    Hi Peng,
    I have a question relating to my 457 visa. I am contracting with company A and I am sponsored by company B, if I would like to change company A, will this impact my sponsorship granted by company B? Or there is no relation between visa and company A?
    Thank you for your help.

    Reply
    1. Peng Cheng Post author

      Hi JJT,
      You can only be sponsored by one company at a time – any subsequent 457 nomination approval will transfer your sponsorship to the new business.
      PC

      Reply
  4. Daryl

    Hi Peng,

    When is the new policy of 457 will take an effect?

    Can i still renew my 457 visa and apply PR? I’m already in 1 year and 3 months with my employer.

    regards,

    Reply
    1. Peng Cheng Post author

      Government make various changes this week already.
      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. Rose

    Hello

    I am an Australian citizen but am asking a question on my boyfriend’s behalf. He is currently on a 457 but has lodged a sponsored PR application a few weeks ago.

    Recently he found out that the business he works for may be closing. If he loses his job before he has received his PR will the application be made invalid even though they have already sponsored him for it?

    Thank you for your assistance

    Rose

    Reply
    1. Peng Cheng Post author

      Hi Rose,
      Sorry but I don’t think that the Department can approve the application if the business closes before a decision is made.
      PC

      Reply
  6. SUNIL BINDRA

    Hi
    I am working with same employer from last approx 4 years. He sponsored my work permit. Now I applied for my PR and the time comes when Visa office could ask me or my my employer for any document if required even though all the documents are already provided with PR application. But now as time is close my employer is not behaving as it was. He just refused and said he won’t give any document if visa office ask for any. Even he hasn’t paid my salary from last 6 months and he is asking around 30k AUD for helping me to get the PR. Even though I have worked for him legally . And also he is making me to do some jobs which are not part of my contract and job description. Is there any way I can fight for my rights in the court. I got all my proof salary slips, tax certificates. I dont have current 6 months salary slips as I said he is not paying me anything from last 6 months. What will be my visa status during the court case and is there any chances to win and will get my PR at last.

    Regards
    Sunil

    Reply
    1. Peng Cheng Post author

      Hi Sunil,
      Sorry but I can’t provide advice just based on your comment information.
      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. GLLiew

    Hi Peng,

    I was on 187 visa working since Jan 2016 and my visa was granted on Sept 2016.
    Technically I have to finished my 2 years sponsorship starting from Sept 2016 to Sept 2018 right?
    My question is can I apply spouse visa since I got married last year Oct?

    Thanks for your time and patience with me

    Reply
    1. Peng Cheng Post author

      Hi GLLiew,
      Yes 2 years is from when PR is granted.
      You can sponsor a spouse visa as a permanent resident.
      PC

      Reply
  8. Marius

    Hi Peng,

    If myself terminated employment with employer do i still have a right to get plane tickets from my employer?

    Reply
    1. Peng Cheng Post author

      Yes you can make this claim as a 457 visa holder even if you voluntarily cease employment.
      PC

      Reply
  9. Amir

    Hi Peng,

    I like your way of answering questions, i have obtained lot of information regarding 187 visa.

    I am 187 visa holder. I got permanent residency last year 14 june, 2016. But i have been working for the same employer since September 2015. Now issues i am having are related to salary. My last yeat taxable income was only $20000. I am really worried.

    I do not intend to leave this company nor I have found another employer etc. All i want to know is that what are my rights? Please help. Thanks

    Reply
    1. Peng Cheng Post author

      Hi Amir,
      Sorry but I can’t provide advice just based on your comment information.
      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 options.
      PC

      Reply
  10. Simon

    Hi peng inhave been in trouble, your help will be appreciated,i have received 187 visa in a Franchised company at nov 2016,but at the end of jan 2017,the franchise shut down and the company i was working under renovate and register in another name with same owner,
    and they are doing really poor business,thats why they are not offering me enough work.its really hard for me to survive,i am broke at the moment.and its hard to find job in other business in regional.i am somehow managing to live but i cant sustain anymore.what choice i do have.

    Reply
    1. Peng Cheng Post author

      Hi Simon,
      You are allowed to work as many jobs as you want, including outside the regional area.
      In terms of work with the sponsor, please see: http://myaccessaustralia.com/rsms-visa-applicants-need-to-stay-with-employer-2-years/
      Before you ask…

      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.
      PC

      Reply
  11. Daryl

    Hi Peng,

    I would like to clarify why i get 2 years validity for my 457 visa? while others is in 4 years?

    regards,
    daryl

    Reply
    1. Simon

      I think the reason must be
      These days department are being strict
      Other thing is if the business is new.my two friends got 457 for a year(from new business),and i recive it for two year as well (my business is new)

      Reply
      1. Daryl

        But the company i’ve been working for is more than 10 years in business. Do i need to take IELTS again if i renew my 457 visa?

        Reply
          1. Daryl

            So 457 visa renewal will take IELTS agian? The IELTS expiration is 3 years right? im still going 2 years this october.

  12. Jenny

    Hi Peng, thanks for excellent information here.

    I have Permanent Residency that is sponsored by my employer (186 visa? It started as a 457). I have been in this role for 2 years. Am I free to take another job? Is this a a grey issue of whether the Department would choose to take action against me – is that right?

    If I am leaving my current role because of extensive travel requirements and impact on my family, is that a valid reason or is it just if the role no longer exists that the Department are less likely to take action?

    Thanks ever so much.

    Reply
    1. Peng Cheng Post author

      Hi Jenny,
      Yes we don’t confirm the potential actions of the compliance team – please see above post.
      PC

      Reply
  13. John walag

    Hi Peng,

    I’ll thank you ahead of informations that I read on top.

    I wanted to ask regarding my situation. I’m on 457 visa at the moment and working in employer for nearly 3 years now. I have just pass all my requirements for the subclass 186 visa and hopefully this week it would lodge by my immigration agent.
    I my case now. We had a change of management in the workplace I am and the assistant manager was trying to let me down in my job making isssues and etc. Which the old management was all going well for me and no problem.
    My question is, could my employer can cancel my subclass 186 visa if I’ll leave or if try to fire me out?

    Hope your advice would help my situation.
    Thank you!

    John

    Reply
    1. Peng Cheng Post author

      Hi John,
      Department can’t approve your application if you no longer intend to work for the business or they terminate your employment before the Department decides the applications.
      PC

      Reply
  14. Michael

    Hello Peng,
    A general question…I am a holder of Subclass 187, and unfortunately my sponsoring employer is unable to keep me on (after 2 months of work), so as a result, I am now in an apprenticeship and studying at TAFE, in a different field altogether. Furthermore, I am regionally based and plan to be here for at least 5 years; which also satisfies my 24 month period that I must remain regional. Will this have an affect from Dept of Immigration perspective? Furthermore, can my wife and young daughter apply for any Centrelink benefits at all?
    Many thanks for your input.

    Reply
  15. Daryl

    Hi Peng,

    My 457 visa validity expires in October 2017. But i arrive here in australia and start working with my employer last February 2016. It means that i need to work with my employer for 2 years in order for me to apply PR which will be in February 2018. Does it means that i need to extend my 457 visa before October 2017?

    regards,

    Reply
  16. Lis

    Hi Peng,

    I am currently on a 457 Visa and I am extremely unhappy with my workplace. My husband is a PR and is able to sponsor me for spouse visa. My question is if i applied for spouse visa and when I quit, what is gonna happen to me? I did my research and I am not sure if I’m right. My bridging visa for my spouse visa application will be invalid as it has the same conditions as my 457 visa (i.e. working for the current employer). I will be unlawful after 60 days and I will have to apply for Bridging Visa E immediately with the immigration office. However, with bridging E, I am not allowed to work as it does not have work rights. I will then need to apply for work rights and it is hard to get approve for work rights. So am I correct?

    Thank you for your help,

    Lis

    Reply
    1. Peng Cheng Post author

      Hi Lis
      Sorry but I can’t provide advice just based on your comment information.
      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
  17. abhi

    hi peng,
    my question is, i already pass citizenship test an next month i have to attend ceremony , right now i have 187 visa but i got better offer in Melbourne so i want to leave my employer. so any problem for my citizenship or 187 visa effect my citizenship also i want to show any new job document to immigration or not. pls reply as soon as possible

    Reply
    1. Peng Cheng Post author

      Hi Abhi,
      Please see above post:
      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.
      PC

      Reply
  18. Bhaumik Shah

    Hi Peng,

    For a 457 VISA holder, if he/she has worked in Australia for 12 months, of them 2 months are from another financial year (e.g. 10 months in FYI 2016-17 and 2 months in FYI 2017-18). He will be charged tax considering full year employment over these two months pay(i.e. 2 months – FY2017-18). So as per standard procedure the candidate needs to apply for a TAX rebate at the end of financial year. So my question is what if the 457 VISA holder gets back to his/her own country and leaves the company that sponsored his/her 457 VISA and within 90 days does not get another sponsor for 457 VISA and the VISA gets forfeited. So will the candidate still be able to apply for a TAX refund at the end of the financial year?

    Reply
    1. Peng Cheng Post author

      Hi Bhaumik,
      Sorry this isn’t a migration law issue – suggest that you speak with an accountant or taxation advisor.
      PC

      Reply
  19. Sameer

    Hlo peng i am on 457 visa ..now these days i am on medical leave .and updated to my owner .but he is not good with me he said i will terminate you ….but i already applied 187 rsms visa and got bridging visa a .so what happen with my 187 visa application if owner terminate me …….pls reply me asap….thanks.

    Reply
    1. Peng Cheng Post author

      Hi Sameer,
      Ceasing employment as a 457 visa holder doesn’t mean that you can ineligible for a 187 visa.
      Sorry but I can’t determine if you satisfy the relevant visa requirements just based on the above information.
      PC

      Reply
  20. giulia

    Hi Peng

    My employer is making me redundant as my job is no longer required in the business (small business). however is trying to get the cost back of my visa 457 by taking it from my annual leave entitlement that they own me.
    is it legal?
    I have originally signed at the begin of the employment an agreement for which if the employment ends by either party the company at its discretion can claim money back from me of the visa cost.

    Reply
    1. Peng Cheng Post author

      Hi Giulia,

      Extracted from Sponsor tab information: https://www.border.gov.au/Trav/Visa-1/457-

      Not recover, transfer or charge certain costs to another person
      You must not take any action or seek to take any action that would result in the transfer or charging of costs (including migration agent costs) to another person, such as a sponsored visa holder or their sponsored family members this includes costs that relate to:
      the recruitment of the person you sponsored
      becoming or being a sponsor or former approved sponsor.
      This obligation:
      starts on the day the sponsorship is approved or the work agreement commences
      ends on the following two events:
      you cease to be an approved sponsor or party to a work agreement
      you no longer have a sponsored visa holder.
      Sponsors are also required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto another person. These include:
      cost of sponsorship and nomination charges
      migration agent costs associated with the lodgement of sponsorship and nomination applications
      administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
      recruitment agent fees
      migration agent fees
      the cost of job advertising
      screening of candidates, short listing, interviews and reference checks
      salaries of recruitment or human resource staff
      the cost of outsourcing background checks, police checks and psychological testing where they relate to an employer determining an applicant’s suitability for the position
      training of new staff
      responding to queries for prospective candidates, and advising unsuccessful applicants
      travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia.

      PC

      Reply
  21. Gail

    Hello,

    Thank you for all the helpful information on this site.

    I am in Australia on a 457 sponsored work visa, but unfortunately am going to have to leave my job after just a few months because of a difficult boss and discrimination based on my nationality (I am American). I would like to stay in the country for at least another 6 months to a year to travel and do some contract work. Can I transfer to a visitor visa that will allow me to work, at least periodically, during the remainder of my time in Australia?

    Reply
      1. Gail

        Thanks PC. Good to know. Unfortunately I’m way over the age limit for a working holiday visa (48). I’ll see what else I may be able to do .

        Reply
  22. AC

    Hi Peng,

    I’ve had a look through a lot of the questions and answers on this page and don’t seem to be able to find my situation.

    I currently have a regional sponsored 187 (FIFO out of Perth) visa and have only been granted it since June and I know you are supposed to work the full 2 years with the company.

    I’ve been offered another position with another company and the position would be based in south Africa FIFO out of Perth. The new company have said they would be willing to take on my existing 187 visa but my question is, is that possible? Also, would I need to apply for a completely new residency application because I would be FIFO from Australia to Africa.

    If either of these are possible can you outline the steps all the involved parties would need to take?

    Thanks in advance, I’m sure you’re response will be prompt and very accurate.

    AC

    Reply
  23. John

    Hi Peng
    I was working as a cook for the sponsored employer for 10 months after Rsms 187 granted & my nominated employer sold the business, New company took over the business hired me with a new contract it has been 13 months since I got my PR, My question is would I be able to find a different employment in the regional area since my nominated employer not trading anymore. Thanks peng

    Reply
    1. Peng Cheng Post author

      Hi Jerold,
      He should get a bridging visa which would allow him to stay in Australia during the processing period if he lodges before his current visa expires.
      PC

      Reply
  24. Andy Moore

    Dear Peng,

    Really appreciate your website! your inputs are really handy to many users.

    My question for you:
    I was on a 457 for 25 months and then resigned from my job. I have 1 month left out of the 90 day period post employment. I would like to work in Australia and may choose smaller employers(10-50 employees who may not have the 457 Business Sponsor). Could you tell me what options do I have at this stage?

    Is your company able to assist me with the options available? Also do you have a branch in Melbourne?

    Thank you,
    Andy

    Reply
  25. Tony McMullen

    Thank you Peng,

    I appreciate your advice. With regards to the permanent residency it was approved in Jan 2012 but she did not enter on the PR until June 2012. Is the expiry on the PR Jan or June?

    Kind Regards,
    Tony

    Reply
    1. Peng Cheng Post author

      Sorry but I can’t answer your query just based on your comment information.
      The visa holder can contact the Department to check the validity period of their visa.
      PC

      Reply
  26. Tony McMullen

    Dear Peng,

    Firstly, awesome website! You have provided much needed information that is easy to understand.

    I am writing to ask about my wife’s application for citizenship.

    Briefly, we have been married for 6 years. She has been a permanent resident since Jan 2012. However, she has never lived in Australia (although I am an Australian citizenship we are international school teachers who work abroad). We applied for citizenship Jan 2016 under ministerial discretion and are currently awaiting a decision. We have been told by the Department that they are only now processing applications from May 2015 so are concerned that her permanent visa might expire (Jan 2017) before a decision is made.

    My question is does getting a 12 month RRV mean that her permanent residency is continued for an additional 12 months? Our plan is to get the 12 month RRV and await the decision on the citizenship application. Regardless of whether she gets citizenship or not we will relocate to Australian in June 2017.

    Does our plan ensure that my wife can retain her permanent residency status indefinitely while ever we remain in Australia?

    Thanks

    Reply
  27. Mauro

    Hi Peng,

    I am an Architect. My current employer is sponsoring me under 187 visa as an Architectural Drafter according to the position needed. But a position has arisen as Landscape Architect within the same company. They have checked my resume and experience and want to hire me now as a Landscape Architect due to my knowledge experience on that matter as well. So the question is, should they stop the started process as Architectural Drafter and start a new application for the new position? Or is it possible to keep going on that, and just move on to the new position within the company without notifying the department of immigration.

    I really appreciate your advise.
    Regards,
    Mauro

    Reply
    1. Peng Cheng Post author

      Hi Mauro,
      Sorry but I can’t provide advice just based on your comment information.
      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
  28. Joy

    Hi Peng
    I am applying ENS 186, DIBP visited my workplace a week ago, the officer then issued me a notice to take action as she thought what I am doing doesn’t not comply with my nominated position.
    My employer has provided an explanation letter but we still have heard anything from DIBP yet.
    Just wondering what is going to happen? Will DIBP give a report to my ENS case officer so he can make a decision? Or will DIBP will notify if they are still going to take action against my employer and cancelled my visa?
    Your help will be much appreciated

    Reply
    1. Peng Cheng Post author

      Hi Joy,
      Sorry but I can’t provide advice just based on your comment information. The Department should contact you in relation to the next steps – or your employer can contact the Department if you want an update.
      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
  29. Katerina

    Hi Peng, my employer forced me to quit three weeks before my annual leave. I already planned and booked all the flights and accomodation. What status Im going to have after the employer notify the Immigration Department? Am I allowed to leave the country and then come back again withing these 90 days?

    Thanks

    Katerina

    Reply
    1. Peng Cheng Post author

      Hi Katerina,
      Please see above post:
      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.
      PC

      Reply
  30. Harry

    hello sir,
    i have a question please help me to solve it

    my friend got ENS 186 visa with a company 4 month ago , now what happened his company going to change their location ( 600 to 700 km ) away.
    is he has to go with company or he can leave his company ( he has some issue renting houseand children )
    wait for replay
    thanks

    Reply
    1. Peng Cheng Post author

      Hi Harry,
      Please see above post which explains why we can’t give a definite yes or no answer.
      PC

      Reply
      1. Harry

        Thanks for answer
        Please let me know
        Now my employer going to terminated me because In new place their is no position available for time being as am I nominated.
        Is this any issue if he terminated my job.
        Thanks

        Reply
        1. Peng Cheng Post author

          Sorry but I can’t provide advice just based on your comment information.
          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
  31. KS

    Hi Peng,
    I would like to go to visa 186 after more than 2 years with 457. Will HR able to cancel their nomination part if their changed their mind and decided not to nominate my position ? And I already lodged my application with their reference number (they haven’t get the nomination number yet). Thank you

    Reply
    1. Peng Cheng Post author

      Hi KS,
      Technically an employer can withdraw their sponsorship and nomination application after lodgement.
      PC

      Reply
  32. Pete

    Hi Peng!

    I have been applied for permanent resident Visa after 2 years 457 visa with ENS. There was an investigation against me By the notice of cancellation department while 457 visa 1 years ago, because ” breached the visa, because i am a labour not a project administrator.” The visa has not been canceled because there was not ground to cancel it. I am still working in the same position.
    My question is, can they make a New investigation with the same reason now? Or is there any time limit to start a New investigation about this??
    Thanks for your answer!
    Pete

    Reply
    1. Peng Cheng Post author

      Hi Pete,
      Sorry but I can’t provide advice just based on your comment information.
      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
  33. Bernard

    Thank you Peng, my thoughts are more along the lines if I simply cannot stay after a year due to reasons beyond my control (and I understand that the department will make a decision bearing this in mind).

    But is there any indication whether having a new position in a city as opposed to regional makes a difference?

    Reply
    1. Peng Cheng Post author

      This would be up to the relevant Department case officer to consider and assess – we can’t predict how he or she would view this.
      PC

      Reply
  34. Bernard

    Dear Peng, I have a subclass 187 visa since Nov 2015 for WA, but have been in Australia working for the same employer since Sept 2013. It’s possible that by December 2016 my employer may not be able to pay me a salary anymore due to the company’s financial problems and I could be made redundant.

    If I have shown ‘genuine effort’ to stay with my employer (i.e. retrenchment which is beyond my control), can I find a job say in Melbourne rather than another regional area of Australia? That is, if I can’t find the same job in another regional area, only in one in say Sydney and Perth would the permanent residence visa be extended?

    Reply
    1. Peng Cheng Post author

      Hi Bernard,
      Please see post addressing this issue: http://myaccessaustralia.com/rsms-visa-applicants-need-to-stay-with-employer-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):
      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)
      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
      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
      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.

      PC

      Reply
  35. Jess

    Hi Peng,

    First of all, thank you for sharing all this useful information.
    I have a few questions regarding to 457 visa and my current situation.

    I’ve been working for my current employer for 1 year and just gotten my 457 visa under their sponsorship 2 weeks ago. However I got a better job offer from another company last week and the new company is offering to take over my sponsorship. So my questions are,
    1. Will there be a chance that the immigration department rejects the transfer of the sponsorship because I change the employer too quickly?
    2. My current employer knows about the new offer and they are not happy about that. They blackmailed me saying that they can cancel the sponsorship anytime. I’m wondering if unfortunately my nomination/visa was cancelled by them, would my new company still be able to take over the sponsorship? (p.s. my new company is sponsoring other employees so they are capable of sponsoring people)
    3. The HR of my current company is asking me to sign off a contract/agreement saying that I will have work for them as least 2 years in the future to restrict me from leaving, otherwise they will cancel my sponsorship right away. Is that illegal?

    I would be really happy if you can answer my questions.
    Thanks.

    Reply
    1. Peng Cheng Post author

      Hi Jess,
      1. Department will approve the application if it satisfies the relevant requirements. Sorry but I can’t provide advice just based on your comment information.
      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.
      2. Only the Department can cancel your visa – the Department should contact you before cancellation if you are in Australia (see above post).
      3. Sorry this isn’t a migration law issue. Suggest that you speak with an employment law solicitor.
      PC

      Reply

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