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.

,

How we can help

,

Please Contact Us if you require our assistance.

Our Client Testimonials reflect:

  • the excellence of our work
  • our willingness take on the difficult cases and achieve the outcomes that our clients want
  • our willingness to cater our services to the precise needs of our clients, including working outside of normal business hours and providing limited assistance where needed such as  helping to resolve a specific issue or issues with a particular application
  • our ability to assist business and private clients from all over Australia and the world! We are based in Sydney NSW, however, we have assisted business and private clients from all over Australia and the world. We have never had issues with assisting clients that we don’t get to meet in person

1,001 thoughts on “RSMS Visa Holders & Applicants – Do I Need to Stay With My Employer for 2 Years?

  1. Randika Vithanage

    Hi , My 187 direct entry visa is in processing period, but my sponsor going to sell the business in to another, so do I have to re lodge the application

    Reply
    1. Peng Cheng Post author

      Hi Randika,
      I think so if the business entity/ABN changes.
      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
  2. Cynthia

    Hello Peng,

    I finished 2 years of working holiday in AU and I have finished over 2 years of 187 visa until now. From the date I arrived AU for my working holiday, I have been to here over 4 years.

    Am I eligible to apply for Citizenship? I am not sure the stay of working holiday visa can be counted as 4 years stay requirement of citizenship or not.

    Reply
  3. Jippy

    Hi Peng,

    I am holding RSMS which was approved in April 2016, now I am going to apply for my citizenship. Last year in july I applied my wife’s visa (partner visa), she is living in Sydney due to her work commitments. I go and stay with her during my days off. The place we are renting in Sydney, is under our name (me and my wife’s). In her application her sponser’s address (which is me), I’ve put Sydney’s address.
    In citizenship application, there is a section where I need to mention my address history for last 5 years.

    my question is is it okay to have two addresses at the same time, do I need to mention my sydney’s address aswell. will it effect my citizenship application and my wife’s application?

    Please advise

    thanks

    Reply
    1. Peng Cheng Post author

      Hi Jippy,
      I suggest that you contact the Department for their advice on their matter since I can’t speak on their behalf. Most people lodge their own citizenship applications so I don’t really know if they will have issues with this sorry.
      PC

      Reply
      1. Sujain

        Hi, Peng ! i have lodge my RSMS visa on 5th of January 2018 from Northern territory and my RCB is also approved already. So, upcoming changes of RSMS visa from march will get affect for my visa or not , Could you please let me know that i will be on new rules or current rules . Thank you . With regard , sujain

        Reply
  4. Jim

    Hello Peng.
    I got sponsored 10th February 2016 and it was approved 21st of February 2017, 187 rsms visa. I got fired August the 6th 2017.. Owner hired his little sister as manager and she was very incompetent and I had to help her a lot, which she did not like.. once she got the hang of it after a couple months… I got the sack.. Took them to fairwork Australia and won the case.
    Now my question is… can I leave my rural area (187 visa) and go work in Brisbane??
    Or how do I have to keep working rural till feb 2019?
    Jim

    Reply
  5. Cicil

    Hi Peng, I was lodge my visa for RSMS since 16 august 2016, and got my bridging visa straight away. Until now I haven’t get my PR yet, my boss change our restaurant with the same ABN. The other thing is as the other chef is left last month , and we are in bussy period, today my boss told me that he is unhappy with my work and said that’s he possibly need to change with the other chef. What i need to do if he fire me before I got my PR?

    Reply
    1. Peng Cheng Post author

      Hi Cicil,
      If the employer is no longer sponsoring at the time of decision, then the Department can’t approve your applications if they are aware of this.
      PC

      Reply
  6. Alina

    Hi,
    I just got my 187 visa approved. I have a query that does my husband also need to stay with me in regional for two years or he can relocate to somewhere else like Sydney?

    Reply
  7. dimpal

    hi
    I got my RCB approved and now my owner wants change the business location with same business same ABN can i have Apply again RCB or just address change pls reply

    Reply
  8. Kat

    Hi Peng,

    I’m on a 187 visa as a hotel supervisor at the moment and still waiting for 10 months now for my PR to be approved. I understand that I have to work for two years after my visa approval but is it okay to leave and get another job in other regional area with same position and same salary and stay there till my contract finishes? If yes, the other employer need to take over my sponsorship? What’s the process? My colleague told me that I can definitely leave after one year the visa approves and get another job wih same position in regionla area but I was wondering if it is true and what happens if I leave earlier than one year.

    Thank you so much in advance.

    Kind Regards,
    Kat

    Reply
    1. Peng Cheng Post author

      Hi Kat,
      Please see above post in relation to the Department’s power to investigate and potentially cancel a 187 visa.
      PC

      Reply
  9. Pritisa

    Hi Peng, I m on 485 visa.i applied RSMS in may 2017.RCb is approved in November.I am working full time from May 2017.my contract with company 2 year.Is my 2years time count from may 2017 or after visa grant ?thanks

    Reply
  10. David

    Hi Peng,

    I have a question about the period of 2 years full time role regarding to my 187 rsms visa.

    At the time of processing my visa, I signed an employment agreement with the company which point out I would work as a full time role, and I started the work at 30/11/2016.

    However, I was paid as casual worker during 30/11/2016 to 18/05/2017, after that I signed another agreement to change the payment as full time wage.

    The question is that according to 187 rsms visa regulation, I have to work as a full time role at least 2 years.

    Then, which is the commencement date for the 2 years counting ? 30/11/2016 or 18/05/2017?

    I will highly appreciate if you please give me a specific direction.

    Best regards,

    David

    Reply
  11. Luke Fry

    Dear Peng

    I arrived in Australia on the 16th of November 2015 and commenced work on the 18th November 2015 on a working holiday visa. During my year long working holiday visa my company went ahead applying for my subclass 187 visa. This wasn’t granted until October 2016. I have worked for my company for 2 years from the time arrived in Australia but only 13 months from the approval date. Recently my pregnant fiance, children and I have had to deal with some domestic violence issues and placed an AVO out on someone. Due to this we wish to relocate, therefore i have not renewed my contract with my employer. What would your thoughts be on how immigration will deal with my permanent visa?
    Thank you
    Luke

    Reply
    1. Peng Cheng Post author

      Hi Luke,
      Generally speaking, completing at least 12 months of work after permanent residency approval is considered to be a genuine effort as per the above explanation.
      PC

      Reply
  12. Chander

    Hi peng, i am on 457 visa which got approved in march 2017 for 1.5 year now i want to apply for rsms visa . But RCB didn’t approved .waht should i do now can any other employer sponsor me and apply for RCb pls suggest

    Reply
    1. Peng Cheng Post author

      Hi Chander,
      Sorry to hear about the RCB refusal.
      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

Leave a Reply

Your email address will not be published. Required fields are marked *