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:
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.
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.
In the visa application form, as the applicant, you are required to declare that you:
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).
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:
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):
The below is a summary of other relevant parts of the Department’s policy in relation to s137Q:
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.