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

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

  1. Heli

    Hi

    My query is my company is based on MELBOURNE but they take contract for regional area . My company is happy to hire me on RSMS visa . But I have confusion do I get nomination approval if My company address is in MELBOURNE but they actually hiring me to work in Regional ( working in regional Aged care but hired through melbourne based company)

    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Heli,
      The nominated role should be in an eligible regional area, not at the Melbourne office – you can complete the form to indicate multiple locations, including different locations for the head office and where you will be working.
      PC

      Reply
  2. Kumar

    Hi peng.
    I lodged my 187 nomination and visa on 4 July 17 as a restaurant manager I am just wondering if I didn’t get the visa before March 2018 will I be affected with the new rules as the occupation will be in short term list?

    Reply
    1. Peng Cheng Post author

      Hi Kumar,
      I don’t think so, but that depends on the changes that the government makes.
      PC

      Reply
  3. Garry singh

    Hi peng ,

    I am working as a technical sales rep , i m working with my emplyor from last 4 years almost .
    I got 457 visa in december 2014 , then i applied 187 rsms visa through my same emplyoer from perth head office in may 2016 ,
    Luckily i got PR in feb 2015 .

    I m mostly working in regional qld , regional nsw nd sometimes WA my company have offices in all over australia .

    My wife is living in brisbane with my two kids .
    I saw on there 187 visa they do not have any obligations to move to regional area.

    But obligation is on me only .
    I am working 18-20 days avarage every month in regional areas to sell my company products . When i work there my hotel accomodation , flights ,rental car paid by my company and i have every evidence that i m working in regional area.

    Just few days i live with my family in brisbane .
    My question are
    1 .i have to move my residence in perth cause i got visa approval from our company perth head office ??

    Or i can move to any regional area in australia.

    My visa obligation is work in regional area not to stay in regional ( i am working 18-20 days already and staying their in hotels ) .
    So do i need to change my home address to regional area ??
    .
    Do i really need to move my family also to regional area ?? As they dont have any obligation on their visa .

    Plz reply must .
    Thanks
    Garry singh

    Reply
    1. Peng Cheng Post author

      Hi Garry,
      The obligation is to work in the nominated role – there isn’t any obligation for you or your family to live in the regional area of the business.
      PC

      Reply
      1. garry singh

        thanks for your reply .
        so you mean to say i can stay anywhere and have to work on my nominated position anywhere in australia . is that correct peng?

        Reply
        1. Peng Cheng Post author

          ​​You should be working in the regional area where the RCB application was approved.
          You can ​live anywhere.
          PC

          Reply
  4. Sam

    Hello Peng .. What about bullying in to workplace ? I’ve been on a 187 for nearly a year now and don’t no how much more I can take .. Do you reckon immigration would take it into account?
    Thanks

    Reply
  5. Sunny

    Hello peng,
    I have bit confusion about offshore RSMS file . It has been 9 months but i have not got any result yet . And my owner just sell the business during processing time . Does it effect on my visa ? or what can i do ?
    Still can i get my PR?

    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Sunny,
      Sorry but I can’t provide advice about your application 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
  6. Kiran

    Hi Peng
    I have got my pr through 187 visa as a restaurant manager. But I get paid very low but 76 hours forthrightly …planning to bring my parents for visit visa does immigration will look my pay slip throughly why i have so less pay like 43000 thousand a year

    Reply
  7. Tami

    Hi,
    I am working as IT support officer in Canberra for the last 14 months. Currently I am holding a graduate visa subclass 485 which is going to be expired 23 July 2017. My employer wants to sponsor me on Subclass 187 and he is going to lodge an application for RCB approval. I am some queries which are s follows:
    1. Once his application is lodge am i straightway go on bridging visa OR I have to apply for a bridging visa?
    2. Do I need to apply for any visa until he gets approval from RCB.
    3. As I have 2 and half weeks time in hand I am not sure whether RCB will review this application with this short period.
    4. Last December 2016 I also applied on EOI for a family sponsored subclass 489 from Mackay but in April 2017 Queensland has closed their regional state sponsor visa.Also I lodged EOI for subclass 190 for ACT.

    As I know immigration these processing times are going slow or they are working on priority based what should I do now in regards to my visa application. Is it urgent to apply for another visa to stay further and wait for their replies OR after my visa expires I will go on bridging visa.

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

    Thanks
    Tami

    Reply
    1. Peng Cheng Post author

      Hi Tami,
      You only get your bridging visa after you lodge your 187 visa application.
      Lodging a RCB application doesn’t result in any bridging visa.
      You are allowed to lodge your 187 nomination and visa applications before you get the RCB approval, and then provide the RCB approval after lodgement.
      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
  8. Sohail

    Hello peng,
    I have applied for my RCB in August 2016 and my RCB approved in Nov 2016. Then I sent my nomination on 10-01-2017 and 187 visa on 31-01-2017. I am little confuse about processing time. Firstly, can you tell me my processing time starts from August 2016 or January 2017 when I submit my visa. As I applied before the changes made in march 2017. Will it still affect my processing time?

    Reply
    1. Peng Cheng Post author

      Hi Sohail,
      You may have different processing times for the nomination and visa applications if they were lodged at different times.
      Processing time for nomination should start from when you lodged this.
      PC

      Reply

Leave a Reply

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