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

 

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

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Commitment to work for 2 years from date of visa approval

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In the visa application form, as the applicant, you are required to declare that you:

  1. Agree to work in the nominated position for at least two years
  2. Understand that if you as the applicant, or any family members included in the application or third parties acting your behalf, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and you may be subject to three year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.

Effectively, this means that when your visa application is lodged, you must have the intention to work for your sponsoring employer in your nominated role for at least 2 years from the date that the visa is approved.

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

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Section 137Q – Cancellation of permanent residency

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Section 137Q gives the Department the power to cancel the permanent residency that you obtained through RSMS. The section itself is relatively straight forward and states that permanent residency granted under the RSMS pathway may be cancelled if:

  1. You do not commence employment in your nominated role within 6 months of the date of approval (if you are in Australia at the time of approval) or within 6 months of entering Australia as the holder of a RSMS visa AND you do not satisfy the Department that you have made a genuine effort to commence employment within the 6 month period; or
  2. You commence employment but you terminate your employment within the first 2 years AND you do not satisfy the Department that you have made a genuine effort to remain in your nominated role for the required 2 years.

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How is the Department notified?

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

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

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

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Relevant considerations in assessing ‘genuine effort’

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If the Department does decide to conduct an investigation, under policy, the following must be considered when the Department determines whether you have made a ‘ genuine effort’ (the below is a direct extract from the Department’s policy):

  1. The visa holder’s reasons and/or circumstances leading to the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
  2. The possibility that the visa holder, in collusion with the employer, does not commence work within the six month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia
  3. In the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort) and
  4. Any other matter which is relevant to the commencement or termination of the employment.

The below is a summary of other relevant parts of the Department’s policy in relation to s137Q:

  • If you are ceasing employment on ‘reasonable grounds’, you are expected to give your employer reasonable notice.
  • The Department is unlikely to decide that you have not made a genuine effort if your failure to commence or your termination of employment was due to circumstances outside of your control (e.g. your employer’s financial loss, bankruptcy or closure of the business).
  • The Department may decide that you have not made a genuine effort if you ‘deliberately damaged or sabotaged the employer’s business to cause the dismissal’.

At the end of the day, policy does state that decisions made under s137Q are a matter to be resolved between the Department and the visa holder. The former employer can provide information to the Department but they are not involved in the ultimate decision-making process.

Consequently, if the Department is considering the possibility of cancelling your visa, the Department will need to contact you to give you the opportunity to present your side of the story.

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Before you ask…

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

One of our clients did contact the Department before he left his employer – he asked the Department whether it was ok for him to leave and whether the Department would take action against his permanent residency visa. The Department expressly advised:

The Department is unable to determine whether or not a visa would be cancelled prior to ceasing employment. The assessment can only be made after the event, that is, after the visa holder ceases employment with the nominated employer.

If the Department cannot even tell you what is going to happen before they complete an assessment, then I certainly cannot predict the Department’s actions.

I would say that if you ceased employment because your employer no longer needs you (irrespective of why this is the case – it can be a change of management, closure of the business, lack of work etc.), then I think that the Department is unlikely to take any action against your permanent residency.

Also, if you have obtained your Australian citizenship, then I do not think that the Department would take any action against your citizenship if you leave your employer.

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How we can help

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Please Contact Us if you require our assistance.

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

  1. Joel

    Hi Peng,
    I am on 187 visa and was approved feb. 07, 2017. I worked for my employer until May 2017 was terminated. Now I am looking for a job but cant find any. I have a job offer in melbourne and sydney. Do you think that I can now move and work in Melbourne or sydney? Or do I have to wait for 2 years before I can move to melbourne or sydney?

    Thanks for your response.

    Reply
      1. Joel

        Hi Peng,
        Thanks for your reply I will call the company today in Sydney. I will keep you posted. Thanks again very much.

        Reply
  2. Phong

    Hi Peng,
    I’m on 187 visa for 1.5. year. The visa condition says that I need to commence work within 6 months after visa granted so I stayed in non regional area within that 6 months. However, the business was sold Before I start to work so I decide not to move to that regional area anymore. I haven’t been working anywhere since the day my visa granted. May I know If I could do a paid tax job and and still live in non-regional area ? Will that affect my PR visa?

    Reply
    1. Peng Cheng Post author

      Hi Phong,
      You have the right to live and work anywhere as a PR visa holder.
      I don’t think that the Department would take action against your visa, but this would be up to the compliance team if they decided to investigate as explained in the above post.
      PC

      Reply
  3. din

    hy peng how r u.
    my question is i am on 187 visa and i start working with my employer this july now i am pregnant and i have to take bed rest according to doctor what should i have to do . and another question is can my family live in non regional area. as they dosen’t like to stay regional . and can i leave my job and i have to contact with immigration department. thanks

    Reply
    1. Peng Cheng Post author

      Hi Din,
      Sorry but in relation to leaving the sponsor, as explained in the above post, this would be a decision for the Department’s compliance team if they decided to investigate.
      They would consider the circumstances that you have raised in your comment.
      PC

      Reply
  4. sammy singh

    hi peng
    i got my 187 visa on feb 2017 .i am working as a sales manager , i started work on my payroll from day they granted me PR . now my employer asked me to pay me on commission only . my salary package was $53800 per annum . can i work on my ABN with same employer on commission ? is there any problem in my visa ? what happened with
    2years contract they signed with me when i lodge my 187 visa ?

    Reply
  5. Priya

    Hey,
    I am going to lodge rsms 187 visa in September 2017. Currently i am in student visa at masters level. Do i need to continue my studies once i lodge the visa until i get decison from the dipb. Is it consider as bridging visa.. my current visa is valid till march 2019.
    Thank you.

    Reply
    1. Peng Cheng Post author

      Hi Priya,
      Yes lodging a 187 visa doesn’t affect your current student visa or your visa obligations.
      PC

      Reply
  6. Harry

    Hi Peng,
    I am about to apply RSMS 187 visa with my company in Geelong. My head office is in Melbourne. My questions are
    1) Do I and my partner have to live in Geelong or live anywhere in melbourne as long as I work in geelong?
    2) Because the work requires me to travel back and for in a week, so can I travel to Mel during business hours ?
    Thanks

    Reply
    1. Peng Cheng Post author

      Hi Harry,
      The obligation is to work in the nominated regional role only:
      Understand that visa may be cancelled if the employment is not commenced within six months of arriving in Australia, or six months after the visa is granted in Australia, or if the position is left within two years of commencement of employment with the nominated employer.
      PC

      Reply
  7. P singh

    Hello sir,
    I have a question for you if you don’t mind to answer it. I applied for RSMS in march 2017 file was decision ready but there was Indian police clearance wrong so, immigration approved my nomination on 2july 2017 but they asked for new police clearance to approved the visa they gave us time till 8th of august to provide that new police clearance which we did submit on July 28th.
    Any idea now how long will it take to get my visa done?
    Thanks 🙏

    Reply
    1. Peng Cheng Post author

      Hi Singh,
      Department can take anywhere between 4-8 weeks or longer to finalise an application once they have all required information and documents, although there is no set processing time for a final decision.
      PC

      Reply
  8. feta3

    Hi Peng
    Really appreciate your help.My question is that I just got my pr via 187 for about one month. But my boss told me that they will sold the,company to another company.So I can quit the job in any time.
    So under this situation, does it mean that i am free to go anywhere i can? if i can,should i notify the immi?

    really thanks for your help!

    regards

    Reply
    1. Peng Cheng Post author

      Hi Feta,
      The visa holder doesn’t have any legal obligations to live in the regional area, although moving to non-regional areas may be viewed negatively by the Department if they investigate.
      You don’t have a legal obligation to inform the Department.
      PC

      Reply
  9. Alexia

    Hi Peng,

    I am a bit confused about the licensing or professional membership part required for 187. Can a positive skill aassessment and an allied professional membership suffice for financial investment advisor? Thank you

    Reply
    1. Peng Cheng Post author

      Hi Alexia,
      If licensing or registration is mandatory for you to work in your nominated occupation, then you need to hold this mandatory licensing or registration – hence this would be dependent on your nominated occupation and the licensing or registration laws that apply which can vary from state to state (if any).
      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
  10. Chan

    Hi pang
    I got my 457 visa as a cook 1 year before and applied of RSMS on may 2017
    Just checking now long it takes to get the RSMS visa
    Also is this possible if buy this Bussiness from where v got sponcership
    Thanks

    Reply
    1. Peng Cheng Post author

      ​Hi Chan,
      Department’s processing time is around 8-12 months.
      Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if your query in relation to buying this business.
      PC

      Reply
  11. Jessie Shah

    Hi Peng.

    I really appreciate your hard work and dedication.

    I have a question.

    Its been a year i got my PR via Rsms
    Would i give it a chance and go ahead and apply for a citizenship?

    What’s your take on this?

    Will i be eligible, considering the bill is not passed yet?

    Reply
    1. Peng Cheng Post author

      Hi Jessie,
      I think the bill will be passed, and it’ll probably apply to pending applications sorry.
      PC

      Reply
  12. Dal

    Hi Peng
    I m on 187 visa,l have worked 17 months.my employer sold his business in end of May this year and told me to move wherever I like. I moved to Brisbane and Baught a house here.
    On 8th of July I received a message on my mobile from my employer that he opening a restaurant on 11th of July and he want me to come back to work. He didn’t pay me from 28th of may. What should I do?

    Reply
  13. 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
  14. 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
  15. 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
          1. Joel

            Hi Peng,
            How about 187 visa approved but was terminated by employer after 3 months can he leave the regional area or he must stay in the regional and wait for the 2 years. Thanks for your reply.

            Regards,

            Joel

          2. Peng Cheng Post author

            Hi Joel,
            The visa holder doesn’t have any legal obligations to live in the regional area, although moving to non-regional areas may be viewed negatively by the Department if they investigate.
            PC

  16. 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
  17. 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
  18. 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
  19. 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
  20. 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

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