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?

Commitment to work for 2 years from date of visa approval

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).

Section 137Q – Cancellation of permanent residency

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.

How is the Department notified?

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.

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.

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.

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

  1. rahin

    Hi Peng,
    I have found a job in regional area in nsw. The interview and job duties are done and and as my employer is ready to sponsor mr for rsms 187 visa.
    1) my 2 year time start from the day i applied for 187 visa or from the day it is granted which may take up to 8 months.
    2) my work is at travel distance. can i live in city and work in regional or i will have to move there
    thank you

    Reply
  2. Peng Cheng Post author

    Hi Rahin,
    The 2 years starts from when the RSMS is granted. You can give elsewhere but you need to physically work in the regional area. You can start to work now if you have the work rights on your current visa.
    Thanks
    PC

    Reply
  3. John

    Hi Peng,

    Good Day.

    I’m a permanent resident 857 visa holder now and soon will be taking my citizenship oath and become citizen. I just want to ask if I can already quit my job once i’m already a citizen and not complete the obligation of 2 years obligation for sponsoring me to becoming a permanent resident. My 857 visa was granted last June 2011. I just had enough of to much hard work and stress that works gives me.

    One thing i’m afraid of is that, I have a workmate who is also a permanent resident 857 visa holder too who got his citizenship already and when he did resign the employer told him that he cannot quit because his short of finishing his 2 years obligation for sponsoring him for an 857 visa otherwise the employer will sue him, that person is still working with him because his afraid to be sued. FYI we been working for the company for more than 4 years now. 2 years for 457 visa and 2 years for 857 visa.

    Many Thanks.

    John

    Reply
    1. Peng Cheng Post author

      Hi John,
      From a migration law perspective, I don’t think that you have much to worry about once you have citizenship. I don’t think that DIAC would take away your citizenship just because you left before completing 2 years. But you’ll need to check the terms of your contract and see what you need to do from an employment law perspective.
      Thanks
      PC

      Reply
  4. Hemil

    Hi peng,
    Gone through your all answers and it was awesome….you giving a pretty good advise…I got a question too.i employed in march and I got my 119 visa in sep..as I was working in the night shift and living by myself in regional.. My health started creating problem for me. One night I had a pretty bad weakness due to skipping of my lunch and diner. I went in to the emergency department as it was a chest pain. They found my blood pressure high and found my vitamin d level very low. After that it was continue for another few days and due to that problems I had to leave job and went overseas because of health problem. Meanwhile my owner owns the few cafes and 2 of them shuts down due to slow business. We got over staffed. So me And my employer mutually terminate the contract as my health was bad and he got over staff. Now I came back from overseas and married now. I want to put my wife’s spouse visa but can’t provide the payslip as I am not working there. I suggested by an agent that wait till you get your citizenship which is due in September this year. If I put my wife’s spouse visa now.. Will it affect my visa as immigration will find out I am not working there. Is that alright if I provide them with another company’s payslip?? Or should I wait till my citizenship. Please answer ASAP! As my health is giving me trouble again..I want my wife over here
    ASAP.. Pleas suggest me what should I do???
    Thanks and regards
    Hemil

    Reply
    1. Peng Cheng Post author

      Hi Hemil,
      Personally, I don’t think that DIAC would take action against your permanent residency if they find out they you have left your sponsor before completing the required years of employment – but this is just an opinion, its at DIAC discretion in terms of what they do if they find out.
      PC

      Reply
  5. Nong

    Hi Peng,

    Im on RSMS visa , Do im allowed to have a second job(part time).

    Pls reply I need your opinion.

    Thanks
    Nong

    Reply
  6. Rahul

    Hi Peng,

    Is there 2 different rules with 187 visa. we 2 friend have applied 187 visa from 2 different region of Australia. one NSW and one QLD both on 187 visa.
    our visa is approved but on one of our obligation it states we have to be with company with 2 years and on another 187 visa it states we have to be in Regional Australia for 2 years.

    So for both of visa is it we have to stay with the same company or we can move in same regional area.
    Its confusing since its same visa and in one it says 2 years in regional area and another says 2 years with same company.

    Bit confused!!!

    Thanks a lot,

    Have a good day ahead.
    Rahul

    Reply
    1. Peng Cheng Post author

      Hi Rahul,
      You need to work for 2 years from the date of visa approval in the nominated role, which must be located in a regional area. So yes, you need to work for your company in the approved regional area.
      PC

      Reply
  7. kristina

    Hi Peng,

    Just an inquiry, if I intend to leave my employer before the 2 year contract is over, is it necessary that I should have a job after I left work or can I take my time to apply for job?

    Also, can I work in a different field not similar to the nominated position that I applied for my RSMS. Will it matter? I hope you answer my questions. Thank you :)

    Reply
    1. Peng Cheng Post author

      Hi Kristina,
      As a PR holder, you can take up any job. Although as explained above, DIAC does have the power to cancel RSMS visas.
      PC

      Reply
  8. robyn

    hi peng,

    i have just got my RSMS visa last week through my wife as a main applicant. we came in to Australia on the basis of student visa. Now suddenly my wife ask for divorce after 5.5 years of happily married life.

    I am trying not to breakup but in worst case scenario if we have to break up then what will be my status in Australia as i am a spouse of the main applicant.

    Reply
  9. Aries

    Hi Peng,

    I have placed a few comment about RSMS last year and everything is going well with us. I got PR and already get in the position in Cairns for 10 months. Bad new that my boss has quite a lot issue this year about financial and finally, they notice it bankruptcy. Well as ur article, I know that I would hardly be DIAC cancelled visa because it out of my control and i do got genuine effort while staying at last day.

    But the point is after this, can i move back to Melbourne where my family is or I have to stay here and find other job or similar position until finish 2 years. Do i need to notice to DIAC about the issue of my boss bankruptcy. At the end we do have ok relationship so they will not keep me for any reason.

    Thank a lot for ur help.

    Reply
    1. Peng Cheng Post author

      Hi Aries,
      I don’t think that you are obligated to inform DIAC.
      You can live anywhere since you have permanent residency – assuming that DIAC doesn’t cancel this.
      PC

      Reply
  10. Henry Dang

    Dear Peng,
    I started my job in hospitality with my company as a casual position in Melbourne in April 2011, and in May 2012 I got my PR through the sponsorship wih that company under RSMS 857. I started my full-time job in June 2012 in Perth. Since the day I started I’ve never found any joy or happiness at this place. I asked for a transfer to another venue as the company has a lot of other venue but it was denied but the contract did not state I have to work in the current venue for the entire 2 years.
    I emailed DIAC telling them my case. They replied back saying:
    “As you are now a permanent resident you can choose to work wherever you wish. However, if you leave your current position to seek work at another venue before the two year period is over, your employer may choose to notify the department who may or may not consider visa cancellation. Please note the two points below:

    · The department will consider whether it is appropriate to investigate the matter further or consider visa cancellation. Cancellation will only occur if the Minister is not satisfied the visa holder made a genuine effort to be engaged in that employment for the required period. The visa holder will be contacted by the department if cancellation is to be considered.
    · Assuming the department does not cancel the visa holder’s visa, the visa holder can work wherever, and for whomever, they wish. While the department would naturally prefer the visa holder to remain in regional Australia, there is no legal requirement to do so.

    I’m thinking of quitting my job. Would you be so kind to give me any advice, that wold be much apprecitated. Thank you for reading my post.

    Reply
    1. Peng Cheng Post author

      Hi Henry,
      Clearly DIACs correspondence confirms that they can’t predict what they will do unless they are complete an investigation – so I can’t see how we can provide you with any further advice other than what is also stated in the above post.
      PC

      Reply
      1. Henry Dang

        Hi Peng,
        How long is good enough to call it “genuine effort”? And when DIAC looks at my case, will they consider the time I work for the employer before I got my PR granted?
        Regards

        Reply
        1. Peng Cheng Post author

          Hi Henry,
          This assessment would be completely subjective, so it will be up to the particular case officer to decide what a genuine effort is, and whether your employment prior to PR approval is relevant.
          PC

          Reply
  11. paul

    HI, Great website… as mentioned by all previous..

    I have a question. my employer will take me on via the 187 visa ( i have been on the 457 for nearly 3 years.) what were to happen if, once I had the rsms 187 visa, if they were to let me go, ie. make me redundant?

    Thanks in advance,

    Regards,

    Paul

    Reply
    1. Peng Cheng Post author

      Hi Paul,
      As explained above, if your employer ends your employment, I don’t think DIAC will cancel your visa but we can’t predict what action they will take.
      PC

      Reply
  12. mihin

    Hi peng, I have question for you like before 2 month employer in regional area he offered me for sponsorship but now he said he can’t sponsor me because he doesn’t have full time position left in his restaurant. So me and he decided that he gonna sponsor me but once I get my permenent residency I have to leave job coz he give me full time position untill my visa is issue. So is it allright if we both happy to terminate contract once I get my permenent residency ?

    Reply
    1. Peng Cheng Post author

      Hi Mihin,
      No you shouldn’t be doing this – you don’t meet the requirements for the RSMS visa if you in fact have no intention to work in the role once the permanent residency is approved. The above post explains the commitment that you need to make as an RSMS applicant, and DIAC’s power to cancel your visa if you leave your employer before you fulfil your obligations.
      PC

      Reply
  13. Alison

    Hi
    My husband and I have had permanent residency since January 2013. This is through having regional sponsored visa subclass 187. I would like to know if we moved back to the uk before our two years are up, would have our permanent residency taken away?
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Alison,
      As the above post explains, the Department does have the discretionary power to cancel your visa. Also explained above is the factors that the Department will take into account.
      PC

      Reply
  14. Mik

    Hi Peng,

    thank you for the awesome work! :)

    Question for you:
    I just been granted with a 457 now I would like to go with a 187, but is it possible with this visa to open an ABN and working abroad? I know it’s a silly question, just need to know if I need to stick with the same employer and live in the regional area.

    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Mik,
      The obligation that you owe to your employer is explained above – but I think that you can open your own business if you are granted a 187 visa. The obligation stated above still applies though.
      PC

      Reply
  15. Cristina

    Hi Peng Cheng!
    I and my husband currently got our 857 permanent visa! I would like to know in case I am pregnant do I need to work with the employer for two years or is enough for my husband to work with them. WE work at the same company.

    Reply
    1. Peng Cheng Post author

      Hi Cristina,
      Congrates!
      The commitment to work for 2 years only applies to the primary 857 visa applicant.
      PC

      Reply
  16. Rocky

    Hi peng,
    I have been offered fulltime job with 187 sponsorship.i have got employment contract which states fulltime job -2years contract but it also says probationary period of three months will be applied. So, i would like to know that does probationary period apply to 187 visa employment contract?

    Rocky.

    Reply
    1. Peng Cheng Post author

      Hi Rocky,
      Yes – RSMS employment contracts can potentially contain a probationary period. Department’s relevant policy guidelines state:

      7.4 Probationary periods
      The question of probationary periods should not arise with nominations under the Temporary Residence Transition stream as nominees would have already been employed with the nominator for at least 2 years.

      It is common practice in many industries for contracts to refer to a probationary period, usually a period of 3 or 6 months. This does not necessarily preclude the appointment being permanent and/or for more than 2 years.

      Before deciding that the relevant requirements are satisfied, delegates must be satisfied that appointments that are subject to a probationary period will provide full-time employment.

      Examples of probationary provisions that delegates may be asked to consider include:

      • a contract that specifies an initial probationary employment period of less than 2 years with the option to extend the employment by the agreement of all parties after certain conditions are met. This does not satisfy relevant requirements and delegates should advise the nominator that they should use the UC-457 visa to bring employees to Australia until such time that they are ready to commit to unqualified employment
      • a contract that specifies an employment period of 2 or more years, with the option of early termination if certain conditions are not met or if certain circumstances arise. This contract could satisfy relevant regulations
      • some research and medical appointments that are made under statutory regulations subjecting the appointee to a probationary period within the terms of appointment. Delegates should satisfy themselves that these are permanent positions.

      Unacceptable probationary provisions

      The following probationary provisions would not be able to satisfy relevant regulations:

      • the nominator provides 2 or more contracts for the nominated position, with one contract relating to the probationary period and the remaining contracts relating to the rest of the 2 year employment period (there must be only one contract, covering the entire 2 year period)
      • the probationary period covers the whole 2 year employment period
      • probationary periods of 6 months to 1 year, unless the employer can demonstrate this applies to all employees.
      Employers who want to introduce probationary periods under any of the circumstances mentioned above are to be advised that they should use an appropriate temporary working visa to recruit a potential employee and only seek to nominate them for permanent residence when they are satisfied with the employee’s work performance.

      PC

      Reply
  17. Bob

    Hi,

    I’m currently on a 187 visa that was granted 5 months ago. I work in a very busy hospital with a really bad work culture (institutionalised bullying that management essentially ignores despite complaints being lodged, unsafe staff patient ratios and work practices), I told my manager I’d like to drop my hours to 0.84 FTE as I found the workplace difficult to work in full time but was informed a few days later that according to HR I had to work full time as I was on a 187 visa. Do you know if there is any actual requirement that someone must work full time, I know this was the case when I was on a 457 visa but I can’t find any information stating this is required on the 187 visa.

    Thanks

    Bob

    Reply
    1. Peng Cheng Post author

      Hi Bob,
      There is no condition on your permanent residency visa that required you to work full-time – but as a RSMS applicant, you did make the commitment to work full-time in the nominated role for at least 2 years from grant.
      PC

      Reply
  18. John

    Hi Peng,
    I have been granted rsms 187 last week and have been working with my employer since April 2013.i would like to know if it is possible to make work transfer with the same company in Melbourne?
    Do you think DIBP will cancel my PR even if my employer agrees to transfer my work in Melbourne or do I need to complete the 2 years in regional area as stated?
    Regards,
    John

    Reply
    1. Peng Cheng Post author

      Hi John,
      Leaving the regional area may give DIBP the power to cancel the visa. Whether they do is a completely discretionary and subjective decision, so we really can’t predict the outcome.
      PC

      Reply
  19. Tyu

    Hi there, I had a question. I am employer who have 2 employees on 187 visa. I can’t afford them any more because of lack of work. Can i change their full time contract to part time without affecting their and my obligation. I dnt need them full time. they are in 1st year of their visa grant.

    Second question, can they leave me when they apply and get their citizenship within their 1st year?

    Reply
    1. Peng Cheng Post author

      Hi Tyu,
      As stated above:
      If DIAC can’t even tell you what is going to happen before they complete an assessment, then I certainly can’t predict what DIAC will do if they decide to complete an assessment.
      The above outlines all that you really need to know from a migration law perspective. All I can do is provide you with the relevant information. I can’t predict whether DIAC will take any action if you leave your sponsor/employer as this is completely at DIAC’s discretion.
      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, closer of the business, lack of work etc.), then I think that DIAC is unlikely to take any action against your permanent residency.
      PC

      Reply
  20. Bim

    Hi Peng,
    I’ve been working with my employer since march of this year in the regional area of NSW and my PR was granted on September. My question is that can I move to Sydney and work in the same place coz it’s just 1 hr on train from Sydney to my work place or do I need to stay in regional area for 2 years? If yes then will that affects to obtain citizenship coz I’m planning to get citizenship next year.

    Thanks
    Bim

    Reply
    1. Peng Cheng Post author

      Hi Bim

      The requirements to your visa doesn’t say anything about where you need to reside and so my understanding is that you can live anywhere as long as you complete your 2 years work in that regional area.

      Regards

      PC

      Reply
  21. James

    Hi there, thanks for this site, it has been the most helpful yet.

    I am applying for my 187 visa at the moment and I am hoping for it to be granted within the next two months(so my agent tells me). All my questions about the two year period have been cleared up in this thread.

    I was looking at the citizenship website and it states that one of the requirements is having held permanent residency for 12 months. Assuming all other requirements are met, wouldn’t it be possible to apply for citizenship while I’m 12 months into the two year period?

    Reply
    1. Peng Cheng Post author

      Hi James,
      Yes – you can potentially meet the requirements for citizenship while you complete 2 years of work following the grant of your 187 visa.
      PC

      Reply
  22. sammy

    hi peng cheng !
    in 857 visa ( pr visa ) i got citizenship in 15 months and still do i have to complete 2 yrs contact or
    can i quit that job anytime whenever i want ,if i quit that now my owner can take any action to me ?

    thanks for your kind response

    Reply
    1. Peng Cheng Post author

      Hi Sammy
      You make a commitment to complete 2 years of work with your nominated employer.
      If you leave your employer before this time, the Department in theory has the power to cancel your visa although this is a discretion of the Minister and it does not mean your visa is automatically cancelled.
      Extract from above post: If you have obtained your Australian citizenship, then I don’t think that DIAC would take any action against your citizenship if you leave your employer within the 2/3 year period that you are suppose to work in your nominated role post approval of your permanent residency visa.
      PC

      Reply
  23. tim

    hi peng cheng !
    I have got australian citizen now via 857 visa within 15 months , so still do i have to complete two
    yrs ? if i quit this job now ,is it gonna happend anythings to me ?

    thank you

    Reply
    1. Peng Cheng Post author

      Hi Tim,
      I refer you to the above post:
      If you have obtained your Australian citizenship, then I don’t think that DIAC would take any action against your citizenship if you leave your employer within the 2/3 year period that you are suppose to work in your nominated role post approval of your permanent residency visa.
      PC

      Reply
  24. John Lobo

    Dear Peng,

    Kudos to you for such an informative site, I suggest you have a donation section and I am sure people wouldn’t hesitate to donate for your generous service.

    My Situation:-
    Due to current downturn in construction in WA and uncertain times ahead, I am planning to apply for the ‘quickest’ PR application and I can see 187 quicker than 186 because it saves 16 weeks on skills assessment through EA (?). Currently on 457 under Civil Engineer (23211) since July 2012, working with one the biggest construction co. of Australia. My employer is willing to sponsor me through a nominated Migration agent with decision ready application.
    Questions:-
    1. After getting my 187 if my employer make me redundant I am eligible to find another job anywhere in ‘Regional’ area without notifying DAIC? This would not obstruct my application for Citizenship when time comes.

    2. I read somewhere in your post “Your employer also needs to demonstrate that the position could not be filled by Australians in the area…”. If I am already working on 457 with the same employer, how the employer would demonstrate that.

    3. How long the RCB approval takes ‘roughly’

    4. Being on 457 I have got company letter stating Project completion bonus 15%, which is guaranted. Can I consider that in my salary, thereby it would be over $180k to claim an exemption for skill asst or IELTS.

    Thanks in advance for your valuable input.
    Regards,
    John

    Reply
    1. Peng Cheng Post author

      Hi John,
      1. As explained in the above post, the Department has the power to cancel your visa if your employment ends before the completion of 2 years. If you end your employer and your visa is not cancelled, then you are an Australian permanent resident and you have the right to work anywhere (and to work for anyone)
      2. For a 187 visa application, the relevant RCB will require your sponsor to undertake advertising
      3. Depends on the RCB that you apply to. For WA, it is amount 1 month from when you lodge the RCB
      4. Bonus which is contingent on performance and completion of a project can’t be counted towards guaranteed salary
      PC

      Reply
  25. John

    Hi Peng,
    Thanks for reply on previous question.
    I work in townsville and got my 187 visa on October 29. I work with ALH group.
    My question is, can I make transfer of my nominated occupation wih the same group to other regional areas (hoping geelong).
    Does it have to be same area or any regional area across Australia ?
    Also if I transfer to other regional area, does it have to be same sponsoring employer or can be different employer?
    If i did make transfer, does the salary have to be market rate or can just work casual?
    Any suggestion would be appreciated.
    Thanks.

    Reply
    1. Peng Cheng Post author

      Hi John
      You make a commitment under the 187 visa to work for same employer, in the same regional area and under the stated nominated role for a minimum period of 2 years. If you change your employer or your role, the Department has the discretionary power to cancel your visa although this is not automatic.

      I refer you to the above extract which may answer your question:

      Before you ask…

      Please don’t ask me whether it is ok for you to leave your employer before completing the required 2/3 years of post visa approval employment. I’m sorry but I’m not going to respond to comment questions asking me to predict whether DIAC will take any action against your permanent residency.

      I did have a client contact DIAC before he left his employer – he asked DIAC whether it was ok for him to leave and whether DIAC would take action against his permanent residency status. DIAC 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 DIAC can’t even tell you what is going to happen before they complete an assessment, then I certainly can’t predict what DIAC will do if they decide to complete an assessment.

      The above outlines all that you really need to know from a migration law perspective. All I can do is provide you with the relevant information. I can’t predict whether DIAC will take any action if you leave your sponsor/employer as this is completely at DIAC’s discretion.

      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, closer of the business, lack of work etc.), then I think that DIAC is unlikely to take any action against your permanent residency.

      If you have obtained your Australian citizenship, then I don’t think that DIAC would take any action against your citizenship if you leave your employer within the 2/3 year period that you are suppose to work in your nominated role post approval of your permanent residency visa.
      PC

      Reply
  26. vivek rana

    Hi Peng,
    my permanent resident visa (187) has been granted in august 2013. I would like to ask you can we work part-time job in tax file number while we are doing a full time job with our sponsor . Or it can create problem for us?
    thank you

    Reply
    1. Peng Cheng Post author

      Hi Vivek,
      That is allowed. You hold PR so you can work as many jobs as you want, or open your own business.
      PC

      Reply
  27. jay

    Hi peng im on 187 visa im currently working with employer from 15 mnths and five months after visa granted my employer is going to sell buisnes do i need to notify diac and find another job in same field

    Reply
    1. Peng Cheng Post author

      Hi Jay,
      You are not obligated to inform the Department. You have PR so you can work in any job, in any field.
      PC

      Reply
  28. Jeremy

    Hi Peng,

    I got a 2 years work contract from my company to sponsor my visa. I lodged my application in Sept 2013 and have started working for my employer since. I have always been confused with the two year commitment rule and would like you to clarify it for me.

    My current work contract ends on Sept 2015 however, I am still waiting on the approval of my subclass 187 visa. Assuming in the next few months (Let’s say May 2014), I get my approval from the immigration. What happens if I do not get a contract after Sept 2015? In a way, I did fulfill the two year work commitment by working from Sept 2013 to Sept 2015. Will my visa get cancelled by DIAC? Would DIAC consider my case as making a “genuine effort” to stay within my 2 years commitment?

    I look forward to hearing from you soon. Cheers

    Reply
    1. Peng Cheng Post author

      Hi Jeremy,
      As explained above, only employment completed after PR grant is relevant. Also as explained above, whether the Department decides to take action is completely discretionary, so we cannot predict the Department will do.

      Please don’t ask me whether it is ok for you to leave your employer before completing the required 2/3 years of post visa approval employment. I’m sorry but I’m not going to respond to comment questions asking me to predict whether DIAC will take any action against your permanent residency.
      I did have a client contact DIAC before he left his employer – he asked DIAC whether it was ok for him to leave and whether DIAC would take action against his permanent residency status. DIAC 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 DIAC can’t even tell you what is going to happen before they complete an assessment, then I certainly can’t predict what DIAC will do if they decide to complete an assessment.

      PC

      Reply
  29. Jeremy

    Hi Peng,

    Thanks for your reply. I am pleased to say my employer nomination has been approved and I have been given a case officer.

    Unfortunately, I still have a few documents that my case officer requires for further assessment. I did my health check up last year in Sept but my case officer is asking for my medical checkup record. I already sent multiple emails to him but have yet to receive a single reply from him. I remembered asking the Medical officer and she told me that the medical health check results will be sent directly to DIAC. What should I do now? Should I arrange for another referral to the medical center?

    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Jeremy,
      I don’t think that there is anything for you to do if you have completed your health examinations already. Just wait for your case officer to contact you.
      PC

      Reply
  30. Nikki

    Hi Peng
    This is my situation. I had my RSMS visa for 2 months, however the business where I work has been sold due to my boss’s finance problem.
    So my question is do I have to give DIBP the notice about that? I have received the job offer from other company in the same filed, so can I start the new job in other company? will it affect my PR?

    Reply
      1. Nikki

        Thanks for your responded Peng
        So if I dont have to inform DIBP, does my employer have to do it? or he either doesnt have to do that as well? Because my employer has too much stress now so he is not bother to inform DIBP. I have started working for the new company in the same position, so is that better if we just keep quiet like this ?

        Reply
        1. Peng Cheng Post author

          Hi Nikki,
          The Department can find out anywhere – if the employer has closed, other government department records will reflect this, like ATO and ASIC.
          I don’t think that the employer is under any specific obligation to inform DIBP.
          pc

          Reply
          1. marie

            hi
            I have the same probelm. I have had PR for over a year now but my boss sold the business a couple of months ago. The business still has the same name and not much has changed (its a childcare centre) but the ABN has changed so does this mean I am no longer obligated too remain here for another year as the contract I had was between myself and the previous employer before it was sold?
            Do I need to inform immigration?
            Thanks.

          2. Peng Cheng Post author

            As stated above:

            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.

            My reading of the law is that the obligation doesn’t carry on to a different and subsequent employer that takes over the business.
            PC

  31. Amanda

    Hi Peng,

    Firstly – congrats on such a great website. I have got answers in reading for 5 mins what I have been trying to find our for last 5 months !

    Can you tell me if DIAC/DIBP are obligated to contact you in writing to inform you that they are considering cancelling your RSMS visa or can they just put you right back on the plane again when you arrive in Oz? I was with my employer for 14 months from commencement of employment (19 months from grant of Visa) after which I had to return to the UK due to a family emergency. I want to return to Oz permanently next month.

    Thank you

    Reply
    1. Peng Cheng Post author

      Hi Amanda,
      You will receive written communication, and be given a chance to respond. A case officer will be assigned to consider the matter.
      PC

      Reply
  32. Muhammad

    HI,
    i was wondering to ask about 187 visa.
    i have been working on 187 visa for last 5 months ,
    My visa Obligation is””” remain employed in the nominated position in the regional area for at least two (2) years””

    In case if i am sacked from job and i find another job in my nominated position and starting working there .
    Will there be any effect on my visa. ?.
    Because it does not say on my “”obligations”” that i must work with my”” nominee “”

    Thanks in Advance

    Reply
  33. CT

    HI peng,

    I have 119 visa granted on november 2012 , I have started to work with this compony since 2011 december now is 2014 january but thing change , business is going down , there is a change that I will get redundant, now my boss is decide to put the business for sale , i don t know when i will get redundant nor if the new owner decide to keep me or let me go but my intention is to finish my contract until this year november 2014 so in that way i finish my obligation for 2 years contract after granting the visa but i can not control my boss not to make me redundant as the business is going down.

    My question are

    1 will DIAC cancel my PR ?

    2 What I should do if i get redundant ? should i continue on and find another job as i need to pay my bill.

    3. should i notify DIAC my current situation if i get redundant or just continue with my life here?

    thanking you in advance

    CT

    Reply
    1. Peng Cheng Post author

      Hi Ct,

      1 will DIAC cancel my PR ?

      The above post does explain that we cannot provide you with a definite answer. We do state: 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):
      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

      2 What I should do if i get redundant ? should i continue on and find another job as i need to pay my bill.

      You have Australian PR – you can live where you want and work in any job. Department will contact you if there are any issues.

      3. should i notify DIAC my current situation if i get redundant or just continue with my life here?

      I don’t think that you are obligated to inform the Department.
      PC

      Reply
  34. George

    Hi Peng,

    Great website, is a great help I am confused by this statement:

    “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”

    Does this mean if my employer and I had agreed before we submitted the application that I would be leaving once it was approved that this is okay? or is it stating that this is a valid reason to cancel a visa?

    Can I lodge an employer nomination before the end of my 2 year contract with them?

    Thanks

    George

    Reply
    1. Peng Cheng Post author

      Hi George,
      Does this mean if my employer and I had agreed before we submitted the application that I would be leaving once it was approved that this is okay?
      No – the above statement is expressly prohibiting this.
      PC

      Reply
  35. Dipendra karki

    Hi this is karki .I would like to know my Rsms sponsership visa , I am currently working with my employer under the 2 years Rsms . Now it has been finished 1 year .so I am planing to quit current employer and want to go another employer , But I have not find yet another employer , so my queries is that how long I will get time to get another employer once I quit current employer ? Please advice me this will be appreciated !! Thank you . King regards :- Dipendra karki .

    Reply
    1. Peng Cheng Post author

      Hi Karki,
      You are an Australian permanent resident – there is no time limit by which you need to secure another employer. As an Australian permanent resident, you are not obligated to work.
      PC

      Reply
  36. Chathu

    Hi Peng,
    Fist of all I would like to thanks for the service you providing.

    I have a query about RCB approval. It will be great if you can advice me . I’m on 457 visa and have been working for my employer for 1 yr . Employer wish to sponsor me for 187 . to get the RCB approval from WA they say ” position has to be advertise within 3 months and not less than 2 weeks directly preceding the application for assessment” .
    Is that mean employer has to keep advertising the position for over 3 months ? or is it enough to put 1 advertisement ?

    Reply
  37. Penney

    Hi Peng,

    I was granted my rsms less than a year ago and have my partner as a defacto. Since then i have received news that my mother is very unwell so I have made the decision to move home for a year to support my sister with taking care of her. I have worked for the company for almost three years and just told my boss that I will be leaving at the end of the month. She has now said she will be informing DIAC of my not staying with the company for two years. My partner is unable to move home due to work commitments here so I was wondering if DIAC decide to cancel my visa will this affect his also?

    Any info at all will be much appreciated, thanks!

    Reply
    1. Peng Cheng Post author

      Hi Penney,
      If the Department does decide to take action, then it can affect your partner’s visa as well. We honestly can’t predict what the Department will do.
      PC

      Reply
  38. Inder

    Hi peng

    I am on 457 visa from 4 April 2012, and my two year will be completed within 2 month, but now at the same time my owner got banned letter from integrated immigration officer for 2 year, because according to case officer he didn’t fullfill sponser’s requirement. Like according to officer I am under paid 0.30 per hours. Because in my offer letter my employer committed that he will 50,000 per year on 38hrs/ week but I am getting pay from last 2 year $24 / hr and I m working 40 hours, now my owner is taking legal action. Does it work, can my owner win the case or not if yes can I apply for PR under ENS and if my owner lose the case then what are the option for me please help
    Me,
    Thanks
    Inder

    Reply
    1. Peng Cheng Post author

      Hi Inder,
      We can’t predict what action the Department is going to take – we can say is that if the sponsorship is cancelled because of the breaches, this will affect your sponsor’s ability to sponsor you for PR. I’d say that if the breach was so serious that the sponsorship is cancelled, then I don’t think that that employer will be able to sponsor you for PR.
      pc

      Reply
  39. Rez

    Hi Peng

    Thanks for such a nice blog.
    I have been granted RSMS 187 direct visa, it’s been around 5 months since I got visa. I was about to start my employment but now my employer saying their business going down they don’t need me any more ! What should I do now and what might be my obligations. Also can I stay anywhere in Australia now.

    Please help me.
    Kind Regards
    Rez

    Reply
    1. Peng Cheng Post author

      Hi Rez,
      I don’t think that you are under any specific obligations – you have Australian PR so you can live anywhere.
      PC

      Reply
  40. Anne-Marget

    Hello Peng,

    I am on a RSMS visa as well with a year obligation I was granted my PR on July 1 2013. In March I will have been employed with the company for 2 years does this count or do I have to wait till July 2015. Also I just found out that I am pregnant I am due Nov 4 2014……can I take maternity leave and does this count as still being employed with the company?

    Reply
    1. Peng Cheng Post author

      Hi Anne-Marget,
      The 2 years is from grant of permanent residency. There is actually no Department guidance on whether maternity leave can count.
      PC

      Reply
  41. Asa

    Hi,
    I am on the 187 visa and would like to know what happens if i get pregnant before the end of the two years commitment (I have 20 months to go from now)

    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Asa,
      There is actually no Department guidance on whether maternity leave can count – a 187 visa holder can certainly take maternity leave.
      PC

      Reply
  42. popo tran

    i am currently on 187 visa which granted on 13/ november 2013,
    i would like to aks what happen if i am accidently get pregnant, do i get my visa cancelled or not? i i have been in australia for 10 years now.
    thanks very much
    ptran

    Reply
  43. Julie

    Hi Peng,

    I am currently on a 187 visa. I have worked for my employer for 12 months while my visa was processing. I was employed and sponsored in a Senior Management role, however since the promise of sponsorship my role has changed in its entirety. I carry out a very junior ‘dogs body’ role, am submitted to humiliating tasks and feel bullied in the work place. I am trying my best to ‘stick it out’, however I have just under 2 further years to complete. Should I leave my employer and the DIAC do follow my case up, is there evidence I can put in place to protect myself? Eg; a run down of daily tasks, witness statements etc?

    There is literally nothing on my contract I do, I have been refused annual leave, sick pay, superannuation, and regularly do unpaid overtime and a entirely different job role.

    Your advice would be appreciated, although I understand there is no guarantee with the revoke of the visa – I just want to ensure I have protected myself in every way possible.

    Many thanks.

    Reply
    1. Peng Cheng Post author

      Hi Julie,
      Perhaps you can collect some evidence of your daily work which can demonstrate that it is inconsistent with your nominated role. Statements from colleagues can help. If you can demonstrate that you were not paid your proper salary or leave entitlements, that can certainly help too.
      PC

      Reply
  44. John

    Hi Peng,
    This is really an interesting blog..
    12 months in Rsms is considered to be genuine effort. If I am to apply for citizenship after 12 months, should I still be living and working in regional area or it can be applied from anywhere?
    Will there be further investigation by the immigration when I apply my citizenship even after working 1 year in regional area?

    Reply
  45. alex

    hi i got my PR dec 2012 with RSMS visa .now i got my citizenship approval letter from DIAC i wnna leave my employer ,i just wondering can i leave my employer as i have two year contract because i haven’t finished two year here . plz let me know

    Reply
    1. Peng Cheng Post author

      Hi Alex,
      As stated above:

      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
  46. nirmal

    hi
    peng
    i have granted regional sponsor visa 187 from nsw and my wife also in same visa can my wife go to sydney and work over there

    Reply
  47. Jane

    Hi,

    I have been working for my company for almost 2 years and they decided to sponsor me on the visa 187. I have received approval of PR a 2 months ago and now they want to make me redundant. Is that not a breach of contract as it says in the conditions of the position is “permanent role which would be available for at least 2 years”. Is it then legal to make me redundant without a genuine attempt to keep me employeed . What if I am not the only one that they have done too? That they sponsor a lot of people who left right after and they didnt report on anything.

    Thanks

    JANE

    Reply
    1. Peng Cheng Post author

      Hi Jane,
      Sorry but these are actually employment and contract law matters – under migration law, employers are under no obligation to provide sponsorship for permanent residency. You’ll need to speak with an employment or contract law solicitor if you think that your employer has breached your contract.
      PC

      Reply
  48. Arun

    Hi Peng
    I am a social worker and enquiring on behalf of my client. My client is granted RSMS visa applied through the employer where he was working before. The visa states that the applicant must commence work with the employer with in 6 months from the date the visa is granted. My question is whether or not he is allowed to work else where for this 6 months period due to limited production at the previous employer who applied for the visa. The employer has no objection in doing so and accepted that my client can work with him later when the production is reinstated to normal. Your response is highly appreciated.

    Regards

    Arun

    Reply
  49. Walter

    Hi Peng

    Im currently on a 187 visa which i have had for just over a year and previously i was on a 457 visa for the 2 years prior to grant of the 187 visa both of which have been held with the same employer in continued employment.

    Regarding the 2 years of employment obligation I have the following query, I keep reading in forums etc that the 2 years commences from the date the 187 visa is granted however after trawling through all my visa application and grant notifications i have only been able to find the following two statements:

    1. On my grant notification for the 187 visa it states that i must meet the following obligation “remain employed in the nominated position in the regional area for at least two (2) years”

    2. On the visa application form that i signed and submitted with my application to the DIAC it stated “The applicants declare that they:
    Understand that visa may be cancelled if if the position is left within two years of commencement of employment with the nominated employer”.

    Neither of these statements say it is after the visa is granted. As i have been with my employer in the same position and location for 3 years (2 years on a 457 and 1 year on a 187) has the 2 year obligation been met? I cannot find any wording in any documents i signed or received from the DIAC saying that the 2 years commences from the visa grant date (i only have the statements above) if you can clear this up it would be appreciated.

    if it helps my visa was applied for in later 2012 and granted this time last year.

    Many thanks

    Walt

    Reply
    1. Peng Cheng Post author

      Hi Walt,
      The 2 years is from grant of PR – you can contact the Department yourself to confirm that this is the interpretation that they will apply.
      PC

      Reply
  50. Ramona

    Hi Peng Cheng!
    I have a question regard the RSMS visa! I would like to know, holding the RSMS visa and being the main applicant of the visa , in case I am pregnant do I need to work with the employer for two years, while I’m pregnant? If I need to rest after 7-8 months, would this affect my currency visa? Thank You

    Reply
    1. Peng Cheng Post author

      Hi Ramona,
      RSMS visa holders can take maternity leave – this won’t affect your visa.
      PC

      Reply
  51. Tara

    Hey ping!

    I have worked for just over a year with my employer but my visa is only approved 5months. In your personal opinion do you think DIAC would cancel my visa if my employer and I leave on mutual terms. I was moved to a different position in the centre that has the same position title but different roles and responsibilities, I complained and told her I was unhappy in this position, she could not offer me my old position as someone more qualified had replaced me so we are drafting up a statement to agree we both part ways in a mutual agreement. Do you think DIAC will cancel my visa?

    Any advice would be appreciated,
    Thanks
    Tara

    Reply
    1. Peng Cheng Post author

      Hi Tara,
      As explained above, the information in the above post is all the information that we can provide on this matter.
      PC

      Reply
  52. nehs

    Hi Ping,
    I just have a question with the RSMS visa, do we need to work a specified number of hours or we are allowed to work for only 60 hours?
    Thank you!
    Nehs

    Reply
  53. David P

    I’ve been on a 457 visa for 18 month. My boss and I want to partner up on a project which include the creation of a new company. I would be working 2/3 on my current position and the other 1/3 for the new business.
    Obviously my current visa doesn’t allow me to work for another company or even start my own business.

    Would it work with a 187 or 186?

    thanks,

    Dave

    Reply
  54. Jeff hardy Erum

    Hi peng,

    Please advise me that I got my PR through my wife main applicant on RSms 857 visa last July 2013 , now I have one daughter and my wife always fighting with me and said I should leave herb she said you will not get your citizenship hence she was the main applicant in the PR?
    And she said if I inform now the employer you will be get the cancellation of your PR?
    Pls advise what I should do ?

    Kind regards

    Jeff Hardy Erum

    Reply
    1. Peng Cheng Post author

      Hi Jeff,
      The breakdown of your relationship shouldn’t affect your visa. She can’t inform the employer to get your PR cancelled.
      PC

      Reply
  55. Mann

    hello Peng
    i need some info on dis:
    ( taxi proprietor)
    what my qualification should be ?
    who could nominate me ?
    do i need to be a taxi operator ?
    please guide

    Reply
    1. Peng Cheng Post author

      Hi Mann,
      You need a relevant AQF Associate Degree, Advanced Diploma or Diploma (or higher qualification).
      You may be able to apply for that occupation under the 187 through the sponsorship of a regional employer.
      PC

      Reply
  56. greg

    hi peng

    i need some advice im currently on a 857 visa i been on these visa for 16 months. been here in australia for 5 years. and my boss is really harsh on me i call last monday to have a day off cause its school holiday and no one will look after my kids. and then after that day tuesday he wont let me go to work. and he wants me to call him which i didnt do cause im tired of him yelling at me. and last time i call in sick he gave me a final warning which i had medical certificate and now im so stress and depress i cant go to sleep. can i leave my employer now?

    thanks in advance

    Reply
    1. Peng Cheng Post author

      Hi Greg,
      Refer you to the above post:

      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.

      PC

      Reply
  57. harman

    hi peng
    myself Harman. Am on 857 visa now and been on this visa sice feb 2013. Am working there full time .But now my employer wants me to work as a casul, because he told me that he cannot pay me . wil it make any difrenence to my PR.
    thanx peng
    harman

    Reply
    1. Peng Cheng Post author

      Hi Harman,
      I don’t think that the Department would take action in such a situation – but we can’t give a definite prediction since the action that the Department can undertake is completely discretionary.
      PC

      Reply
  58. anu

    hi peng
    i got PR approval 187 rsms in jan 2014..my employer wants to close his business..its only 3months that igot approval…so i am worried about my situation..what are the options for me…is it effects to my visa?..is that alright if i work in any other places in same regional and is any conditions for part time or full time..
    waiting for ur reply
    thanks
    anu

    Reply
    1. Peng Cheng Post author

      Hi Anu,
      I don’t think that the Department would take action where the employer has closed the business – but we can’t give a definite prediction since the action that the Department can undertake is completely discretionary.
      If you leave your employer, you have PR – you can work wherever and work for anyone.
      PC

      Reply
  59. menaka

    Hi Peng,
    I already sent the message regarding my case. but I haven’t get reply yet. as I mentioned before I have granted rsms 857 visa one month ago. However I want to make sure is that possible to do part time job in city area for tax file number. If I do that in city area it will getting trouble for my visa. Could you please reply me..I really appreciate your reply.
    Thank you,
    Regards,
    menaka.

    Reply
    1. Peng Cheng Post author

      Hi Menaka,
      You are allowed to have another job, even if this job is not in a regional area.
      PC

      Reply
  60. Helen

    Hi Ping

    Just a quick question…. After working with the selected employer on the 857 RSMS visa for 2 years… is it then okay to leave and work in another location that is not rural… ie Brisbane, Sydney etc??

    Thank you
    Helen

    Reply
    1. Peng Cheng Post author

      Hi Helen,
      Sure that is allowed – you have PR, you can work anywhere and work for anyone.
      PC

      Reply
  61. Ram

    hi peng,
    Love the site its so helpful.I am in 187 visa and visa has been granted before 3 months. In Permanent visa granted the obligation is i have to remain as an employer in nominated role for 2 years in regional area which doesnt said with the company. As a contract i suppose to work 38 hours a week but i hv to work more than 50 hours a week. is there any problem if i leave current employer and work for someone else in regional area in same position. Will be so great if you can help me with this thank you
    regards
    ram

    Reply
    1. Peng Cheng Post author

      Hi Ram,

      Sorry – I’m just going to extract the advice in the above post since it answers your queries to the best of our ability:

      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.

      None of these examples in policy seem to apply to your situation

      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
  62. Ram

    Hi peng hope you are doing very well! I am in 187 visa and already got visa aporoval now my employer is trying to change the old contract which is he changed the working hours from 38 to 50 hours ! I hv got both contract bg havent sign the changed one. Do you think its legal? If not What soulf i fo with this matter. Looking forward to hear from you thank you
    Regards
    Ram

    Reply
    1. Peng Cheng Post author

      Hi Ram,
      This isn’t really migration law related – its a contract and employment law matter so I can’t advise on this.
      PC

      Reply

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