186 ENS, 187 RSMS & 457 visa – What happens after I leave my sponsor?

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One very common question that I receive from Subclass 457, 186 and 187 visa holders is: I need to leave my employer – what is going to happen?

 

You may want or need to leave your employer for a number of different reasons. The below are just some examples that I have encountered:

 

  1. My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
  2. My employer isn’t paying me the salary that was specified in my contract and/or visa application
  3. The ownership of my employing company has changed – I do not get along with the new management / owner
  4. I’ve been offered a role with another company and I want to take this
  5. My employer no longer needs my services and they have terminated my employment

 

The events that may occur following the termination of your employment does depend on the visa that you hold. In this post, I will outline the various consequences that may result when you end your employment.

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457 visa holders

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If you want to change employers

 

Firstly, you need to ensure that your prospective employer is eligible to sponsor you for a 457 visa. This generally means that they need to hold Standard Business Sponsorship and that this sponsorship is valid (or that they are eligible and willing to apply for this). Your prospective employer will need to lodge a 457 nomination application and have this approved before you can start employment with them.

 

Changing employers and completing current employment obligations

 

As a 457 visa holder, you can only work for your sponsoring employer and in your approved role.

 

The exception to this is when you are changing your employer and 457 visa sponsor. Even after the 457 nomination application for your new employer has been approved and your sponsorship has changed to this new employer, you can continue to work for your former employer and sponsor to ‘fulfil a requirement to give notice of termination of employment’. This allows you to fulfil the terms of your employment contract and serve out any required notice period.

 

If you end your employment with your sponsor (or if your sponsor terminates your employment)

 

Your 457 visa is subject to condition 8107 – this condition requires you to remain employed in your nominated role with your sponsor. If your employment ceases, then your employer is obligated to notify the Department.

 

If more than 90 days has passed since your last date of employment, then you are considered to be in breach of condition 8107 and the Department may issue you with a Notice of Intention to Consider Cancellation. If you intend to lodge another visa application, then you can discuss this matter with the Department and see if they can give you a little extra time to prepare and finalise the application (evidence supporting your claim that you will be lodging a genuine application may help you case).

 

If your employer notifies the Department that you have ended your employment and you are outside of Australia, then the Department can cancel your 457 visa without notifying you.

 

Covering the cost of your flight to leave Australia

 

Once you have ceased employment,  you can make a written request to your former employer and request that they cover the reasonable cost of your departure. Your former employer is obligated to cover this cost if it receives such a request.

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Employer Nomination Scheme – 186 visa holder

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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.

 

Once you have obtained your permanent residency visa

 

Once you become an Australian permanent resident, the situation does change a bit. Generally speaking, there is nothing from a migration law perspective that can really prevent you from changing your employer or your role.

 

People tend to worry about whether their permanent residency visa will be cancelled if they leave their employer before completing 2 years of employment. This will generally not occur unless you have provided the Department with ‘false or misleading information, or bogus documents either knowingly or otherwise’.

 

In my view, even if the Department is informed about your cessation of employment, they will not act to cancel your permanent residency visa unless they are provided with some clear evidence of fraud or misleading behaviour in relation to your visa application (e.g. an email in which you state that you intend to quit the moment that you obtain your permanent residency).

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Regional Sponsored Migration Scheme – 187 visa holder

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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.

 

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.

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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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Jenna

Hi, I have a 457 visa. If I resign and my employer cancels the visa beginning the 60 day period and I leave the country during the 60 days will the visa automatically cancel on my departure from the country or still be effective for the remainder of the 60 days?

Jack

Hi
Im on 457 been working for one year and I was transfer for the new employer had approved on 3/7/18 . But the new employer they not nominate.
So do you have any idea to go for my opportunity?
I mean tell the immigration for what going on and finding the new employer as well.

Pierrick

Hi, what about when you employer has exploited you for the last 5 years and do not want to help you when it is time for the permanent visa?

Christian

Hi Peng, thanks for your support first.

I’m currently under 457 visa and in october this yeari’ll be eligible to apply for a 186 TRT.
My employer told me today that they are going to sell the restaurant(cannot know when and BTW their lease expire in november 2019).

That said, what happens if i apply for the 186 visa and while i wait for the answer they sell to somebody else?what happens if the new buyer change the ABN?Can, whatever happen after i apply for the residence affect my request?

Matthew

Hi,
I am currently going through an employer nominated PR application (submitted at the beginning of March), having now worked for the business for 2 yrs and 7 months. I am currently still on a 457 VISA, expiring Aug 19.
Question I have is : Could I join another company now? What would the implications of this be? Can the PR application be transferred to the new company if they are willing to pay my existing company the fees that have been paid?
Thanks

Shani

Hi Peng,

Thank you for the valuable article. I am currently on student visa (for my PhD) and a potential employer (a university affiliated institute) wants to hire me part-time and not full-time in a research position for 3 years. They like to sponsor me as well in the 187 stream. I really like the lab and the work they do. However, I am worried that the part-time condition be an issue for 187 stream. Can you kindly advise on it please?

Thanks heaps,
Shani.

meek

Hi, I have been working for 10 months now under 457 (granted before August 2017). We didn’t now about the 461 option prior entering Australia but anyway when we found out, I lodged an application about 2 months ago (onshore). If I resign from my current employer, will my 461 application be affected? Would ceasing employment under 457 means cancellation? I want to quit my job and wait for 461 instead to have full work rights. I’m aware that I need to be onshore when the new visa is granted.Thanks

Tim

Hi,

My employer would like to terminate my 187 regional 21 months into my 24 month period of employment. Due to financial loss, not poor work ethic etc. My visa status has not yet been decided – so I am in the system paid and waiting but not yet fully approved for residency. I also worked for 6 months prior on working holiday for them.

Is there anything I can do to keep my Visa?

Cheers

Neeta

Hi,
I would like to ask that I have applied for 187 RSMS visa on 10th May 2017 and have not got anything yet. I am working with my employer from December 2016. Is there any chance that we can change the job/ employer? What will happen if we change the employer in the same area? Means, I will stay in the same city (Regional area). I haven’t got Nomination Approval yet as well so a bit stressed and confused. Could you please guide me?
Thanks
Neeta

Dean

Hello

I have been in Australia for 3.5 years on working holiday and study visas. I am currently on a bridging visa having applied for the 187 visa.

I have been studying while in Australia and will qualify as a teacher from July 2018. I have been offered a teaching role starting in 6 weeks. Will the visa let me take this position? My current employers don’t want to hold me back from taking this position. Would it be possible to take this position while on the bridging 187 visa? Thanks.

Siva

Hi Peng,

Currently I am outside Australia and I had already lodged an application for 190 Visa through 457 pathway from here. Now I am planning to move out from my current employer in India and this might cause withdrawal of my current 457.
I do have couple of queries:
1: Will this affect my ongoing 190 visa process?
2: How can I communicate my employment change to DIBP, while my 190 application is in received status?
Thanks in advance.

Regards
Siva

Chris

Hi Peng,

Thanks for all the information you provide here. Really valuable.
Here is my situation; last year I’ve applied to PR through the ENS 186 stream with my current employer as sponsor and I’m still waiting for determination from migration office. Recently I’ve been approach by other company with a very attractive job offer. My questions is, what happens to my application if I change employer before determination comes through? Does it get canceled? Could they take over my nomination?

Thanks for your feedback.
Chris

Fel

Hi Peng,

I am current visa holder 457 sponsor ending this June 27, 2018, I am in progress now of PR application under RMS 187, my problem is only 1 document now they are asking the Police Clearance in UAE due to bank debts. Please advise if the Ministry will accept waiver? and if not do you think they will refuse my residence application. Second problem, other employer is also interested to hire me ASAP. could your please advise?

Lucy Pham

Hi I have some questions about visa 187 and I really hope you can help me . I got my visa 187 which is PR in March 2016 . I been worked for my employer for one year and 4 months . I got my Australian citizenship certificate in Fed 2018 . I have already resigned from my position in April due to a few reasons : I was not happy working in the company , I been bullying and been stressful at work . The boss tried to flirt me and the way he talked to me make me… Read more »

Dee

Hi Peng, I had applied for my RSMS 187 as an Event and Conference Manager in March 2017 and currently on BVC. RCB got approved in May 2017 but I am still waiting on nomination. Meanwhile my company is planning to send me to New Zealand for a couple of years and work for another property of theirs. My boyfriend also lives in New Zealand so I was thinking of taking up the offer and get married to my boyfriend there. RSMS 187 processing time has increased and there is no certainty whether it would be a successful outcome or… Read more »

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