One very common question that I receive from 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.

482 or 457 visa

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.

186 visa holder

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).

187 visa holder

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.

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.


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Victor

Hi Peng
I am on briding visa A awaiting decision on my Direct Entry 186 ENS application from last 19 months. The case officer has finally asked for fresh health and police verification. We have completed the same. However my emoyer now wants to withdraw the nomination ( I gave moved interstate temporarily due to family reasons and was looking to go back when the PR was granted). However my employer is not cooperating now. Would I be given any time from the department to withdraw?

RRSCAD

Hello,

In 2011, I had worked in Australia for 8 months with a valid 457 Visa. My visa was valid till 2013. I did apply for cancellation of my visa since one of the requirement to get my superannuation was to cancel the visa. I received a cancellation without notice in Feb 2012. I moved to Canada in 2012 (I am now a Canadian Citizen and live in Canada) and have renounced my previous citizenship.

I now wish to go back to Australia to work and live , Which visa class can I choose to apply now?

John

Hi,

I am wondering what happens if I decide to go back to my home country after only 6-12 months on the visa. I really like my job but I am also home sick so I dont know if I will meet the 2 year requirement. If I decide to go home early, what are the repercussions?

Alex

I’m currently on a 186 visa and I’ve been employed for 2 years. If I now leave Australia to work in the UK indefinitely, can my 186 vis be renewed after the 5 years or does it get terminated?

Arthur

Hi there, great article, thank you!

I do have a question though… I’m currently on the subclass 482 and I’ve been working for the same company for almost 2 years. If I terminate my contract, go back to my country and in 6 months I decide to come back to Australia, can I be sponsored again? (considering that I can be in Australia for a total of 4 years on a sponsorship visa and I would have used only 2 of these?).

Amira

Hi there, I am currently on my 482 visa sponsorship, awaiting to apply for my 187 rsms next month. However, something has happened and I want to cancel my 482 visa, and apply for another visa. I have a medical condition, can I use this to not give notice and ask the employer to release me? Please advice

Ashishkumar Patel

Hello there… i got my 187 visa that is RSMS as Manager bt after 6 month my employer told me that you can not work any more and will get you Release letter because the second director working somewhere else before but right now he has no job so he will working in our bussiness Resturant from next week .. and also he told me that according to immigration law if both director working in bussuness no need of Manager. So is that alright to get Release letter and leave job??? or i have to do legal action against him???..

Zubair

Hi this is zee,
My 457 visa going to finish in sept 2019, unfortunately my boss going close the company in June end 2019. I already applied for 190 visa . My question is can I get bridging 190 , if I apply now.

Josh

Hello,

I am 457 visa I resing to my current employer and I told them that I go home to my country, 1 week before my notice period will be finish, I meet another employer and willing to sponsor me.
Can I accept the offer?
If I accept the offer what hapoen to my visa?

Thank you

Sultan

Hi there, am on bringing visa 186, the company who sponsored me is shutting down by ato, i got bridging visa in oct 2018, i didn’t get any reply by immigration . What should i do,
Thanks a lot

Jason

Hi Peng
I am currently sponsored on 187 visa for last 3 months I have been with the company 3 years and have been head chef for the whole time. Recently they hired an executive chef who has notgot any experience and is under qualified. They wouldn’t even consider me for the position.. would this class as forced resignation? I also work 55 hours and only get paid for 38 hours. If I were to leave my employer would immigration see this as a genuine effort to stay in the role

Anonymous

Hi,
I am on 187 visa, myemployer is not fulfilling the contract that I signed when I joined the company. Im aware that my employer is supposed to provide professional development from the company’s side, however after I enrolled in extra courses, my employer did not make any reimbursements nor has he paid me the amount mentioned in my contract. I am finding it hard to continue with the company because of this. I am happy to stay back,look for another job in same area code. Is it ok to leave?

Natasha

Hi, I am under the 457 approved before the changes, occupation is no longer on the list. I can apply for PR in September but have to go home because my mother is ill. My employer has approved me going away but can i put my visa on hold since i don’t know when ill be returning.

thanks Natasha

David McCarthy

Hi, I am currently sponsored with a 457 visa. I was offered a new job and have accepted the new role as they are willing to take over my sponsorship. I handed in my notice to my current employer and they are now seeking me to pay them back the visa costs. Am I obliged to pay them the cost of the initial visa?

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