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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Leaving your visa sponsor | 187 visa

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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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Michael

2/2 With a 187 it states that you need to work for the company for 2 years after the visa is granted. I really feel that my time there is up and can’t go on any longer. Does anyone know if I will loose my visa if I do this. If this was the case I will be forced to stay as I love it here in Perth.Some people say it’s fine walk, some say I’ll get kicked out the country.

Michael

I started work for a company out here 2.5 years ago and they put me through my PR straight away. Unfortunately with the current processing times this took 2 years. It was finally granted in April of this year.
Over the past 2 years the company has changed so much. I have a serious issue with a certain member of staff and have put 2 official harassment cases in but they have fallen on deaf ears hearing nothing back. Unfortunately it is not taking a toll on my heath and repeatedly get signed (1/2

Cedric

Hi

I am awaiting approval for a 187 visa – once it is approved, can I stay with the same employer and do any of the below:

a) Work remotely but from Adelaide instead of rural SA
b) Work for them still but under a different job title
c) Be full time but with a reduced salary to what was on an approved visa

Once it has been granted, what happens if they changed my role but I am not happy with it?

Thanks

jam

Dear Sir/Madam

In 187 visa grant first 2 years (Chef Position), can I work under my sponsor’s company and also have the rights below ?
1. I can get promoted and salary adjustment.
2. I can also have my own business.(ABN) (Any kinds of business.)
3. I can also use TFN working as a casual worker for not my sponsor’s company in my free time. (ex. Housekeeper, cook…any kinds of job.)

Am I correct?
Thank you

vijay singh

Hi Peng
I hope you doing great. I got 187 visa and I am working with employer from 4 months. Employer is selling his business in two weeks. Can this effect my visa?
working somewhere else in same town should be alright as I am staying in regional area.
Or just stay at same place but don’t show any kind of work will help me
Or what else I can do?
Please reply soon
Regards

Kshitiz Kunwar

Hi there
I have been with my employer since 2017 May my rsms visa got approved on Dec 2018
I am facing financial difficulties can I work for other business as on casual on my day offs will I get into trouble.

Gary

Hello Peng
I have lodge 187 application 20 months before in direct entry stream. Also I am working with my employer from 2 years on 457 and 482 visa. I got nomination last week. How long now process will take to visa approve. And still I have to work another 2 years with my employer after 187 visa approve.
Thanks

Kevin

Hi Peng, I got my 187 few months back, after visa granted I keep trying to reach out to my sponsor. However, the response I got was they unable to provide me the position (upon the agreed position on 187 application) as they already found someoneelse( casue the 187 took almost 2 years process time). Whats the next step should I take?

Louis

Hello Peng,

If the contract is longer than 2 years, is it alright to work 2 years and leave the employer? In that case I meet the visa condition, so is that I have all the rights to decide whether I would like to keep working, is my understanding correct?

Is there any issue for applying resident return visa or citizenship later? Thank you!

david

hey peng
please i would want to ask working with my employer for 2 years after the 187 is granted,must it have to be on a full time basis or casual or part time permanent? thanks in advance

Daniel Hall

Hi Peng
I have been working for my sponsor for 3 years only 11 months under a 187. There was a fire and the business has shut down for 6 months am I entitled to carry on with a new job to finish my last 13 months

Anugrah

Hey Peng, I have been working with my company almost 2 years but only granted 187 last october. Can I leave my employment after 2 years? Or after visa granted?

Danni

if you lose your job on 187 that’s not been granted and are currently on a bridging visa. Where does that leave you in terms of find new sponsor and nomination?

STEFANO PASSERI

HI, I am under RSMS sponsorship and my 2 years of working full time finish the 5th December 2018 when can I stop working and when can I give the notice to my employer?

Babu

Hi Peng My 187 visa was approved on Apr17 and I worked with my emlyr full time for Aug 17-Oct-17 .Because of sm complication in my wife’s pregnancy and personal reasons.I hv applied for LWNP for 10 months as I was not in a situation to do full time job . Which my employer was approved when I finished with leave I tried contacted my emplr and emailed him .I got reply that the compny is not doing good nw facing losses.I tried to get to my position .But he mailed me the this .wt can I do nw?

Peter

Hi Peng,

I’ve been on my 187 visa for more than two years now, my employer who sponsored me over has retired and has shut down the business. What I’m really wanting to know if I’m eligible to apply for jobs in main centres or do I have to stay in regionals.
Thanking you kindly.

Peter..

Heidi Edu

Hi Peng,

Im on a 187 visa and still within the 2 year commitment period. I am being bullied and harassed at work and always being threatened that they will terminate me, they have also started changing my position by letting me do tasks outside my job description. My question, if I leave my current employer (who said can agree to release me) and find a new employer, does the new employer need to agree to sponsor me until i finish the 2 year commitment period from date of visa grant?