Leaving Your Visa Sponsor | 187 visa


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?


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.,

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.

Client reviews
Comments

89 Comments

jag · August 15, 2018 at 5:57 pm

Hi peng

i have received my RSMS visa in november 2016 and the owner has sold the business in march and gave me a release letter as the new place they moved in was so small town and i was not able to move as we had a daughter born in june 2016.
now the owner didnt gave me any group certificate for the time i have worked there. and also he was paying me on cash so i dont know whether he actually paid the taxes or not for me. can i still pay my own tax without any problems?

    Peng Cheng · August 16, 2018 at 9:18 pm

    Hi Jag,
    Sorry I suggest that you speak with an accountant about this.
    PC

Peng Cheng · July 24, 2018 at 11:04 pm

Hi Navi,
I don’t think that this would affect your visa if you are still going to be working in eligible postcode areas.
I don’t know what the Department’s position on this is unfortunately.
PC

Avi · July 7, 2018 at 2:38 am

Hi peng
I am working with the employer who Sponsered me for almost 34 months, 18 months since my visa got approved now i am going enroll in tafe to do my cert ii plumbing, So I wanted to work part time with my same employer for three months so i can finish my study, is that can be trouble as he wanted me to work full time but i have not seen it anywhere on visa grant letter that i must work full time..
thanks for your help peng
Avi

    Peng Cheng · July 7, 2018 at 11:23 am

    Hi Avi,
    You can work on a part-time basis as a 187 visa holder as per your visa conditions.
    PC

Stephanie · July 3, 2018 at 2:31 pm

Hi Peng,

I started working for this company in August 2017 and my 187 application was lodged in March 2018. Due to the fact that I got bullied and harassed at work, I don’t think that i can hang on to this employer for any longer. I haven been to doctors, EASA appointments to build up my evidences so that I could apply for 489 NT nomination. From your experience, rather than applying for 489 nomination do I have any other options? I don’t mind to hand my case to you.

    Peng Cheng · July 4, 2018 at 2:42 pm

    Hi Stephanie,
    Thank you for your comment and query.
    It would be best to contact us if you need consultation and advice in relation to your application. It isn’t really possible to obtain the information/documents that we need, or provide detailed advice via these comment fields which are intended for short/specific queries.
    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

Kevin J · June 21, 2018 at 7:32 pm

Hello Peng.I am applying 187 visa. However, when I arrived regional area, I was told the my employer currently has an apprentice helping him, therefore he dose not need more employee until the apprentice finishes his apprenticeship. I was told I can get another temporary job. I am wondering, if I work outside of the company where sponsors me during my application of 187, will this affect the approval of my 187? Thank you.

    Peng Cheng · June 22, 2018 at 5:32 pm

    Hi Kevin,
    Unfortunately I can’t answer your question 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

harpreet singh · May 23, 2018 at 12:19 am

hi cheng,
my rcb was approved on 15/12/2016 and nomination was approved on 15/02/2018.
i applied my visa on 23/02/2018 but still not any (today 22/05/2018) reply from immigration.
what do you think, how long immigration will take more time to make decision?
OR do i need to do something?
your reply will very helpful me.
many regards,
harpreet

Hardeep singh Parmar · May 18, 2018 at 2:45 pm

Hi Mr.peng my question is do you think that rsms procceing time will go low in future like currently it’s keep increasing . Thanks

    Peng Cheng · May 19, 2018 at 9:24 pm

    Hi Hardeep,
    I think that processing times will continue to be very long for the foreseeable future unfortunately.
    PC

Varinder · May 16, 2018 at 6:01 pm

Hi,
I am on RSMS visa 187 in canberra.i got visa on 10/5/2016. i moved to canberra from melbourne on 1/6/2016. Have i need to work till 10/5/2018? Or i have to work when i start the job.
Thanks

    Peng Cheng · May 19, 2018 at 9:20 pm

    Hi Varinder,
    You count time after you started work with the sponsor.
    PC

Jin · May 8, 2018 at 2:32 am

Hi peng
I am on the 485 visa now and I lodged 187 visa on last February. Rcb approved but the hotel owner will be charged this July with new ABN. So my visa will be rejected? Is there any other method to get vis approval?

    Peng Cheng · May 8, 2018 at 11:40 am

    Hi Jin,
    Unfortunately 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

sabbir · May 7, 2018 at 10:22 pm

Hello, i am on 457 visa since last 18 July 2017, in February 2018 i have lodged my RSMS visa application. the condition for this visa to stay with the company 2 years. will the time counted what i have already passed on 457 visa on full time basis? please any one help me . thank you very much

    Peng Cheng · May 8, 2018 at 11:41 am

    Hi Sabbir,
    Commitment is to work after visa is approved, although policy indicates that time before visa approval may be taken into consideration.
    Please see above post.
    PC

Linda Flick · April 24, 2018 at 12:23 pm

Hello
I am now under an RSMS visa for 9 months and my employer is not respecting my job description. I am an Office Manager and now I find myself as a waitress grade 3 and working on nights and morning shifts. Is this an issue?

    Peng Cheng · April 28, 2018 at 1:07 pm

    Hi Linda,
    You may need to speak with an employment or contract law solicitor/lawyer about your queries and whether your employer is breaching your contract/employment law.
    PC

Tina · April 18, 2018 at 5:28 pm

Hi Peng,

I have just had a granted 187 visa for a couple of month and the visa’s obligations don’t say that I have to stay with my sponsor in regional area for at least two years. So, I would like to ask whether I can leave my employment.
Regards

    Peng Cheng · April 21, 2018 at 10:07 pm

    Hi Tina,
    Please see above post – the Department has power under the Migration Act.
    PC

Jane · April 8, 2018 at 11:19 am

Hi Peng,

I am currently in a 457 visa and applying for a 187 direct entry visa. We have lodged my application February of this year. I have read a lot of reviews and such and I understand that the 2 year requirement for the 187 visa will start from the day of the approval of the visa. But, I have also read that the government might still consider the months that I have worked before the approval. My question is, under what situation does the government consider that? And, does the government most usually take action with situation such as not finishing the 2 year requirement after the visa approval? Thanks

    Peng Cheng · April 12, 2018 at 4:23 pm

    Hi Jane,
    This is just my opinion as I can’t speak for the Department:
    My question is, under what situation does the government consider that? Perhaps if you have very long processing times.
    And, does the government most usually take action with situation such as not finishing the 2 year requirement after the visa approval? Sorry but we don’t have this internal Department information.
    PC

MJ · March 26, 2018 at 9:03 pm

Hi Peng.
So I have worked for my company Since July 2016, almost 2 years. My 187 visa grant was in August 2017.
A lot has happened in the last year and it is becoming very hard for me to stay with the company as the conditions of my job have completely changed. I have recently seeked advice about leaving from my agency that I used when applying for my visa and helped me get approval..
Apparantly The 2 years is based on when I started full-time and on the same terms and conditions as in the nomination. So if i have been full time sine July 16 and the terms and conditions are the same my 2 years will be up in July 2018? And apparently the policy states It’s from when i started full-time and on the same terms and conditions as in the nomination. It doesnt state 2 years from grant of RSMS?
Would this be based on my individual employment agreement with my company?

Thanks heaps

    Peng Cheng · March 28, 2018 at 3:59 pm

    Hi MJ,
    Commitment is to work after visa is approved, although policy indicates that time before visa approval may be taken into consideration.
    Please see Contact Us page and in relation to our Consultation Service – feel free to contact us if you need assistance.
    PC

Randika Vithanage · February 18, 2018 at 6:38 pm

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

    Peng Cheng · February 24, 2018 at 10:54 am

    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

Cynthia · February 12, 2018 at 9:41 pm

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.

Jippy · February 7, 2018 at 12:49 pm

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

    Peng Cheng · February 11, 2018 at 1:21 pm

    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

      Sujain · February 18, 2018 at 11:28 pm

      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

        Peng Cheng · February 24, 2018 at 10:55 am

        Hi Sujain,
        Changes won’t affect lodged applications.
        PC

Hemil · March 8, 2013 at 6:42 pm

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

    Peng Cheng · March 8, 2013 at 10:26 pm

    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

Peng Cheng · September 11, 2012 at 9:09 am

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

rahin · September 11, 2012 at 3:44 am

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

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