RSMS Visa Holders & Applicants – Do I Need to Stay With My Employer for 2 Years?

 

This must be one of the most commonly asked questions that I receive from Regional Sponsored Migration Scheme (Subclass 187 visa) applicants: Do I need to stay with my sponsoring employer for 2 years after the visa is approved?

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Commitment to work for 2 years from date of visa approval

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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.

You need to continue to have this intention until a decision is made on your application. If your intention changes before lodgement, or during processing, and you no longer intend to work for your sponsoring employer for at least 2 years from when the visa is approved, then you should either not lodge the application or inform the Department and withdraw your application (which ever is applicable to your situation).

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Section 137Q – Cancellation of permanent residency

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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.

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How is the Department notified?

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Generally speaking, the most common way for the Department to find out is through the employer notifying the Department that you have either failed to commence employment, or you terminated your employment before you have completed 2 years.

The Department can also find out about the termination of your employment through information that it receives from other government departments, such as the Australian Taxation Office, the Australian Securities and Investments Commission, Centrelink etc.

As the visa holder, you are not under any specific obligation to notify the Department if your employment is terminated.

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Relevant considerations in assessing ‘genuine effort’

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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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Please Contact Us if you require our assistance.

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764 thoughts on “RSMS Visa Holders & Applicants – Do I Need to Stay With My Employer for 2 Years?

  1. Ian

    Hi Peng,

    How long does employer nomination take? my employer wants to sponsor me so they lodged the nomination, since its a new business we are still waiting for approval before applying for 187. Its been almost two months, is there a way we can contact immigration to follow-up or just wait? Thank you in advance.

    Reply
  2. sahil

    Hi Peng

    I have an question regarding rsms187 visa.
    I applied my nomination for cook in month of October2016 and my RCB approved by south Australia in December2016 and I lodged my application last week of December2016 .
    So how much time does it take to complete the whole process ?
    Actually I applied for a contract rsms.
    And my sponsor is in south Australia and I am living in Melbourne.

    Reply
  3. Rizwan

    Hi Peng Cheng,
    I have applied for RSMS 187 as a restaurant manager 4 months ago. Is it compulsory for me to keep working for 20 hours weekly until I got rsms visa or can work lessen.? Can I also work in any other place during this period.? Thanks in advance.

    Reply
    1. Peng Cheng Post author

      Hi Rizwan,
      There isn’t any legal obligation to work for the 187 visa sponsor before your 187 visa is approved, unless you have a 457 visa that is sponsored by the same business.
      PC

      Reply
  4. Ahamad

    Hello peng thanks for your great work, i have got 1 question about my rsms 187. I got my PR through rsms187 4months ago. Now when i went to my employer to start my nominated job she told me that due to some issue she now can’t give a full time job as i was offered before applying for rsms. She told me that if i agree then she can give me part time job. So according to my visa condition am i suppose to work full time as mention in our agreement before or can i work as part time worker. After a year I’m planning to apply for citizenship so will it affect while applying for citizenship and it says that can apply for citizenship 1 year after getting PR. When does the 1 year period start is it from the grant date of PR or from when i start my work with the nominated employer. Please help me thank you.

    Reply
    1. Peng Cheng Post author

      Hi Ahamad,
      You can count time after the grant of your PR visa: must have been a permanent resident for the 12 months immediately before making an application and not have been absent from Australia for more than one year in total, during the four year period, including no more than 90 days in the 12 months before applying

      General residence requirement
      The general residence requirement is based on the amount of time you have lived in Australia.
      You must meet all of the following:
      have lived in Australia on a valid Australian visa for four years immediately before applying
      must have been a permanent resident for the 12 months immediately before making an application and not have been absent from Australia for more than one year in total, during the four year period, including no more than 90 days in the 12 months before applying.
      PC

      Reply
  5. Kiran

    Hi,Peng
    I applied my rsms 187 in January and my file opened just recently …they have allocated a case officer..and requested some additional document how long they take for decision making once they got everything

    Reply
    1. Peng Cheng Post author

      Hi Kiran,
      The Department usually takes around 4-6 weeks to make a final decision once they have all required documents.
      PC

      Reply
  6. Rajwinder

    Hi , Peng ,
    I want to ask I have applied for 187 visa . I am pregnant and going to be delivered in may . My partner is in India . My lawyer said your nomination will be approproved during march but someone said to me you will not get results of my visa lodgement because you are unable to clear madical test during pregnancy.is it correct or he can get result for his visa lodgement without me because I want my husband with me when I will deliver baby or before that . Thanks

    Reply
    1. Peng Cheng Post author

      Hi Rajwinder,
      Yes the Department will likely make a decision for all family members at the same time, including your newborn child. Your case officer will confirm the exact process.
      PC

      Reply
  7. Anna

    Hi Peng ,

    I Got My 187 Rsms Visa In October 2016. Last week I Went to See My employer and Asked For Starting My Job But He said He didn’t have position At This time. My Question Is That If He Will not Give my Job Will My Visa cancel By immigration After Six months As I tried My Best To Start My Job? But The Employer Is Not ready What Is Best option For Me? I Need To Try To Find New Employer ?

    Reply
    1. Peng Cheng Post author

      Hi Anna,
      Sorry but as explained above, all the advice that we can provide on this matter is contained in the above post.
      PC

      Reply
  8. mamta

    hi peng,
    I am on 187 visa and I am currently on maternity leave for 1 year , on maternity leave we moved to Melbourne, my question is can we apply our citizenship while staying in Melbourne or we have to go back to our regnal area where we got sponsorship. as our two years are not finished yet.

    Reply
  9. Helena

    Dear Peng Cheng,
    Firstly, thank you for the great website and all informations you has provided.
    Secondly, i’ll finish my obligation with my employer next 9/7( officially 2 years after PR) but I’m pregnant now and i intend to go for maternity leave from 9/4. My question is whether i have to come back to fullfill another 3 months(9/4-9/7)after maternity leave or not.
    Thanks

    Reply
  10. Rossana

    Hi Peng.
    I have a question for you I’m a bit confuse because my Visa 187 from South australia saids:
    “Remain employed in the nominated posistion in the regional area for at least two (2) years”.
    So can I move with another employeer in South Australia and I will be fine? or would I have to stay with my currently employer for 2 years more since 09/2016 when i received my PR?? my currently work is really heavy and stressfull for me.
    I just want to move to another company with less stress.
    I would really appreciate your help with this. Thanks in Advance

    Reply
  11. Mohan Kumar

    Hi Peng,

    I have my application in process with the IMMIGRATION, I have been sponsored through RSMS and working for my employer.

    I am getting paid through my employer’s Personal Bank account. Is that a problem or an employer can pay an empoyee in any method?

    Please let me know how this work.

    Thanks Peng

    Reply
      1. Mohan Kumar

        Thank you very much Peng for your reply. I think my question was not clear enough the way I have written.

        Actually right now my employer is paying the salary to my Bank Account from his Personal Account. Is that a problem or is there any condition that employer has to pay the salary from their own business account?

        Please Reply…..

        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
  12. Incy

    Hi Peng.

    What is the immediate step after getting PR via Rsms187?

    Do we need to go immigration office for PR stamp or so?

    Is there any other condition apart from working 2years after the grant of PR?

    Please reply.

    Thank You.

    Reply
    1. Peng Cheng Post author

      Hi Incy,
      You don’t need to get a visa label – these are no longer issued by the Department.
      Your visa is electronically linked to your passport so you can use it after it is granted.
      You can check your visa conditions which should confirm that you 187 visa isn’t subject to any conditions.
      PC

      Reply
  13. Gogita

    Hi Peng,

    It looks like processing time is getting longer for 187 visa this year.

    I have applied for 187 visa in March but we received a NOIC for my husbands 457 a few weeks ago. We replied to the email but its been 3 weeks and we haven’t heard from the cancellation department. Can I travel overseas while waiting? Is the outcome of 457 going to affect the decision for 187 visa?TIA

    Reply
    1. Peng Cheng Post author

      Hi Gogita,
      Can I travel overseas while waiting? That depends on the visa that you hold – check your visa for your travel rights.
      Is the outcome of 457 going to affect the decision for 187 visa? Can’t answer this just based on your comment information.
      PC

      Reply
  14. Andy

    Hi Peng,

    Thank you for providing such wonderful assistance and guidance to many of us! Much appreciate your forum and information.

    I’ve got two questions in particular:

    1. My 187 visa got granted in April, 2015, and I applied for my visa in December, 2014. When does my 2 year run out with my employer – In April 2017 or December 2016?

    2. My employer hasn’t been partially paying us our superannuation, and in spite of Superannuation inquiries raised with ATO there has not been any action taken by the employer in paying up the super for the last financial year. I would imagine, same would apply this year where the superannuation won’t get paid. My question here is – isn’t the employer voiding the contract by not paying what the entitlements are? If so, do I hold the right to give my employer appropriate notice and inform the immigration in terms of terminating employment? (I do not intend to work in a city until my visa condition of working in a regional area is active).

    Look forward to receiving some updates from your end.

    Thanks & Regards,
    Andy

    Reply
    1. Peng Cheng Post author

      ​Hi Andy,
      1. April 2017 – you count time after you are granted permanent residency.
      2. Sorry but we don’t provide employment law advise. I suggest that you review the terms of your employment contract and speak with an employment law solicitor if needed.
      Otherwise I refer you to the above post.
      PC

      Reply
  15. Sandhu

    G’day Peng,
    I’m on RSMS (PR) visa for last 5 months and working for same company over 1 year. Just last week, I got another job in Melbourne city. Just wanna check if I am allowed to do 2 jobs , like one in regional area (nominated job) and another job in city area.

    Reply
  16. Rony

    Hello Peng
    i have lodge my 187 visa (without nomination approved but RCB app) in 9th November 2015 and case officer got appointed in July 2016 then asked to re-do the form 80 and request if i have certificate or register accountant copy. But i have just completed my Bachelor degree and had no CPA or CA certificate. The job will be in my employer place just an in house accountant to do day to day tasks. Also the co asked to renew my wife’s passport as it is expiring in end of August. now my question is it is 17th August but after i submitted everything on 20th July no response was received. How long does it takes usually after case officer got everything what he asked for. sorry i know this is kind a stupid to ask but i have been waiting for last 9 months and waiting for my family to join here but no results coming out till today. even if they approve my nomination i can feel bit relief. please suggest something. thanks so much

    Reply
    1. Peng Cheng Post author

      Hi Rony,
      Sorry but as you can see there isn’t any set processing time – DIBP’s general response is that it will take the time necessary to assess all the legal requirements if you call them.
      PC

      Reply
  17. Ahmed

    Dear Peng,
    An employer would like to sponsor me and I am eligible for both 186 and 187 visa subclasses which one is better for me and faster in processing time.
    Thanks

    Reply
    1. Peng Cheng Post author

      ​Hi Ahmed,
      Both are permanent residency visas. Processing time would also be similar since both are employer sponsored permanent residency visas.
      PC

      Reply
  18. Richard

    Hi Peng the condition of rsms says need to commence work within 6 months. I am just wondering would that be OK to commence to work after 5 months after visa approval or need to commence ASAP. Thank you.

    Reply
    1. Peng Cheng Post author

      Hi Richard,
      You can commence work at anytime within the allowed period specified in your visa grant notice.
      PC

      Reply
  19. sonny

    Hi Peng,

    I have a question?

    My rsms visa approved 1 year back. The business who sponsored me was consider restructuring his business. That’s why I joined my employment late. His business is same but he is subcontracting his labour.
    I mean same company same position but different ABN. The employer is now subcontractor.
    I joined after 8 months of my visa approval because of these changes. .
    Will these changes affect my PR.?

    Will it affect my citizenship application ahead?
    Looking forward to hear from you. Thanks

    Reply
    1. Peng Cheng Post author

      Hi Sonny,
      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
  20. Grace Woo

    Dear Peng,
    My friend would like to open a restaurant soon and wants to sponsor me as an accountant/bookkeeper. I have tried to search immigration website what is the minimum qualification requirement for accountant/bookkeeper but failed to do so. For your information, my current qualification in Australia is Diploma of Commerce (Higher Education) which equivalent to first year of Bachelor of Commerce. Thank you and hope to hear from you soon.

    Regards,
    Grace Woo

    Reply
    1. Peng Cheng Post author

      Hi Grace,
      Qualification that you need to hold depends on the visa that you are applying for.
      Also see ANZSCO: http://www.abs.gov.au/ausstats/abs@.nsf/Product+Lookup/1220.0~2006~Chapter~UNIT+GROUP+2211+Accountants

      UNIT GROUP 2211 ACCOUNTANTS

      ACCOUNTANTS plan and provide accounting systems and services relating to taxation and the financial dealings of organisations and individuals, and advise on associated record-keeping and compliance requirements.
      Indicative Skill Level:
      In Australia and New Zealand:

      Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).
      PC

      Reply
  21. Jerry

    Hi Peng,
    I am holding 187 visa and started working for my nominated employer.
    Recently Uber comes to the market.
    As a casual share-riding service, Uber requires driver using ABN to receive trip earning and claim tax as sole trader (partnership between Uber and driver).

    My question is :
    Is 187 holder eligible to apply ABN number, casual time work with Uber as partnership?
    Is 187 holder eligible to have contracted jobs (not overlaps the official full-time job from sponsored employer) using ABN?

    Thanks so much.

    Reply
  22. Noor

    Hi Peng
    I want to discuss my problem with you. I got my 187 visa in April 2016 and my boss gave his business on lease to another company. Now they takeover whole business and am getting my pay from new company and they do not pay me as decided in my contract. moreover behaviour is not good with me.
    1. If I start work in another company in same field in regional area than is that can effect my visa
    2. Is this matter can effect on my citizenship application.
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Noor,
      Sorry but as explained in the above post, it would be up to the Department to decide if they want to investigate the matter and take action if they find out.
      We can’t really advise in relation to the Department’s internal processes and discretionary decision-making.
      PC

      Reply
  23. jessiboy

    hi peng,
    ive been with my company since february 14, 2013 sponsored under 457 visa as a chef,then sponsored again under rsms 187 visa got approved last august 24,2015, ..i have no problem with my employer,,they are very supportive.my issue is this we live in regional south part of western australia, my wife work as a barista but due to they dont have much costumer now she is only working now for 3 hours and only 1 day a week (hospitality here in south of western australia is really not well on business). now i applied to 1 of 5 star hotel in perth and they are offering me a job and a really good opportunity too to work in 1 of most popular hotel in WA. If my wife and I move to perth we are sure we can find a better job and better income to save money too ,because right now we are really tight as hard on the money because we have kids a 6yo and 8yo..
    is this a good reason for me to leave my employer?
    dont get me wrong ,i love my employer but due to financial problems and responsibility being a parents ,me and my wife are planning to move to perth

    Reply
    1. Peng Cheng Post author

      Hi Jessi,
      Sorry but as explained in the above post, we can’t really advise in relation to the Department’s internal processes and discretionary decision-making.
      PC

      Reply
  24. Mandy

    Hi Peng
    My nomination is approved in sep 2016.
    How long it will take for my PR?
    Is it compulsory for department to give answer in 5-8 months.
    Because only for nominations; department took 9 months.
    Regards
    Mandy

    Reply
    1. Peng Cheng Post author

      Hi Mandy,
      Department’s processing time is around 6-8 months.
      There is no set timeframe for a decision – department can take as long as it wants.
      PC

      Reply
  25. Rick 25

    Thanks for replying peng

    So my 187 visa would not be effected if i move down to city and work there??because its only been 3 months but selling the buisness is out of my control and cant do much…

    Reply
    1. Peng Cheng Post author

      Sorry but as explained above, that would be up to the Department to decide if they investigate the matter. See above post.
      PC

      Reply
  26. Rick 25

    Hi peng,

    I have been granted p.r 3 months back and being working there full time but now the employer is selling the buisness and liquidating the company..So my question is

    1) will this affect my P.R
    2) Do i have to stay in the same regional area or i can move to city
    3)do i need any sort of letter or form before sells the buisness
    4)can look for work in the city
    5)Do i have to inform immigrstion

    Reply
    1. Peng Cheng Post author

      Hi Rick,
      See above post.
      You have the right to live and work anywhere.
      I don’t think that there is a legal obligation to inform the Department.
      PC

      Reply
  27. Suren

    Hi Peng,

    I recently moved to Australia on 457 visa. I found out that I am pregnant while visa was processing.
    I was working with the same employer in UK, before I moved here. They are happy to nominate me for 187 visa, as tat would help me with childcare after giving birth.
    I requested them to nominate me through with Direct entry scheme 187 visa scheme.
    I do have 3 years relevant work experience and 6 band in
    How long the total process could take including nomination, if there is a skill assessment and application.

    Kind Regards

    Suren

    Reply
    1. Peng Cheng Post author

      Hi Suren,
      Department’s processing time is around 6-8 months from the date that you lodge.
      PC

      Reply
  28. Piruu

    Hi Peng.

    I wanted to ask,

    After a successful grant of RSMS visa, the PR received will be equally to citizen rights ? Except restriction of vote and conditions to work with the same employer for 2 years.

    Can u explain Me how it works please ..

    Reply
    1. Peng Cheng Post author

      Hi Piruu,
      Yes you can’t vote as a PR visa holder. Permanent residency is different from citizenship.
      PC

      Reply
  29. Govinda Ojha

    Hi Peng,
    My employer is looking forward for sponsoring me with RSMS 187 visa. His company is based on regional queensland but he also has a branch in a different place that is not regional. He wants me find out if I could live regional and work both places with 187. Can i hold 187 and work with same employer 2 different places with only one located regionally?

    Reply
    1. Peng Cheng Post author

      Hi Govinda,
      Work role needs to be located in an eligible regional area.
      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
  30. Sophie

    Hi Peng I m on Rams visa for last one year ,m still with my employer.can I move to city and live there and keep working with my employer in regional area because it is not very far. Can also I decrease my hours if me and my employer agree?

    Reply
    1. Peng Cheng Post author

      Hi Sophie,
      The obligation is to work for your sponsor – you can live outside of the regional area.
      You can decrease your hours.
      PC

      Reply
  31. Anna Spetikova

    Hi Peng,

    I have been with my employer for one year now since I got my RSMS visa granted. I still have another year to go, but I can’t handle the pressure at work anymore. Lots of staff changes, I am training new staff members every month and not getting paid for it. I am also doing tasks that are not on my contract. Basically, the company is saving money and letting other staff go such as cleaners and receptionists and they let us do their tasks on top of our job. I talked to my managers about it many times and I told them in advance that I am going to leave. I am applying for my citizenship on the 2nd of July 2016. My question is, do you think they could still be able to contact DIAC if I leave at the end of July? I am sure my citizenship will not be processed that fast, but I will probably have my test and application done.

    Thanks,
    Anna

    Reply
    1. Peng Cheng Post author

      Hi Anna,
      The employer can contact the Department if they choose to take this step.
      PC

      Reply
  32. amrinder

    hi peng i want to be know my visa expires on 16 sep and i am going to apply for rsms visa in july is that possible i acn apply because visa takes to garnt 3-8 montjs and i have only 3 months visa left thnx plz reply asap

    Reply
    1. Peng Cheng Post author

      Hi Amrinder,
      If you lodge a valid RSMS application, you should get a bridging visa that allows you to stay in Australia until the Department makes a decision.
      PC

      Reply
  33. wendy

    Hi Peng,

    My Nom 187 been granted in in January 2014 and have been working with my employer (hotel industry) for 4 years already but not under my nominated position. In addition to that, this hotel will be closing soon (hotel contact expires soon which another management will take over the property) in November 2016.

    In my case:
    1. Can I look for other jobs from now? OR wait until the contact ends in November?
    2. What are the necessary things should I do?
    3. I heard all staff will be getting the redundant salary in November 2016.

    Please assist/advise me on this. Thank you so much Peng.

    Reply
    1. Peng Cheng Post author

      Hi Wendy,
      You would have completed the 2 year commitment already if you got your visa in January 2014.
      You are allowed to look for other jobs.
      There is no obligation to inform the Department if you go to another employer.
      PC

      Reply

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