Leaving Visa Sponsor

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.

Peng Cheng - Migration Agent, Sydney

Peng

.

Over 15 years of specialised visa and migration law experience. We have a long history of high approval rates with complex applications and Tribunal appeals.

We can generally guarantee approval for most types of applications. We will refund you our professional fees if your application is refused. Terms & conditions apply.

We are with you all the way, and we will help you prepare the best application possible.

.

Qualifications

Registered Migration Agent (MARN: 1172863)

Bachelor of Laws (Hons) – University of Sydney

Bachelor of Economics – University of Sydney

Comments

218 Comments

Jay · March 22, 2018 at 9:53 am

Hello good morning,I got my PR last year NOVEMBER 2017(ENS 186) and I want to drive Uber but my boss said I can’t do 2nd job but on my visa it show :visa conditions NIL?can quit my job and work somewhere else if I do that did immigration cancel my PR? I’m very worried please reply me
Thanks

    Peng Cheng · March 22, 2018 at 9:09 pm

    Hi Jay,
    You can have as many jobs as you want as a 186 visa holder. You can also work for yourself.
    PC

      Jay · March 23, 2018 at 7:28 am

      Thanks for your help your very kind person helping everyone here ,so if I quit my ens employee,no trouble with my 186?
      Thanks

        Peng Cheng · March 28, 2018 at 3:49 pm

        Please see above post in relation to the commitment that you made as a 186 visa applicant.
        PC

        Lorena · April 8, 2018 at 8:47 pm

        Hello Peng
        I am waiting for sponsorship 457 visa. In this moment i have bridging visa. But my boss will sale the business. You know what happens with my process?
        I need apply again with the new owner?
        Thank you

          Peng Cheng · April 14, 2018 at 1:00 pm

          Hi Lorena,
          I’m sorry but this is a rather complicated matter that you are asking about. Unfortunately I can’t provide advice 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

Katie · March 19, 2018 at 5:50 pm

Hi Peng

I’m currently on a bridging visa for a 457. I have been on this for around 8 months now. My job isn’t working out to how I expected and I want to return back to the UK.

In my contract it states I should pay 50/50 towards visa. I have not paid anything as my company has not asked as of yet.

If I was to resign now what fees would I need to pay if any?

Thanks

    Peng Cheng · March 22, 2018 at 9:00 pm

    Hi Kate,
    I’m sorry but this isn’t a migration law issue. This would be a contract/employment law matter and unfortunately I can’t provide advice on this matter.

    The business can’t recover the following costs: https://www.homeaffairs.gov.au/trav/work/empl/sponorship-obligations-monitoring-and-sanctions

    Not recover, transfer or charge certain costs to another person
    You must not take any action or seek to take any action that would result in the transfer or charging of costs (including migration agent costs) to another person, such as a sponsored visa holder or their sponsored family members this includes costs that relate to:

    the recruitment of the person you sponsored
    becoming or being a sponsor or former approved sponsor.
    This obligation:

    starts on the day the sponsorship is approved or the work agreement commences
    ends on the following two events:
    you cease to be an approved sponsor or party to a work agreement
    you no longer have a sponsored visa holder.
    Sponsors are also required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto another person. These include:

    cost of sponsorship and nomination charges
    migration agent costs associated with the lodgement of sponsorship and nomination applications
    administrative costs and any sundry costs an employer incurs when they conduct recruitment exercises, including:
    recruitment agent fees
    migration agent fees
    the cost of job advertising
    screening of candidates, short listing, interviews and reference checks
    salaries of recruitment or human resource staff
    the cost of outsourcing background checks, police checks and psychological testing where they relate to an employer determining an applicant’s suitability for the position
    training of new staff
    responding to queries for prospective candidates, and advising unsuccessful applicants
    travel costs for the sponsor to interview and/or meet the applicant either overseas or in Australia.

    PC

satya · March 13, 2018 at 4:35 pm

Hi Team Myacess au,
We are currently on 457 visa, ( granted for 4 years, 1 year completed with employer) onshore have applied for 189 GSM visa with 65 points software engineer, now that my employer has new technology that might make my role redundant, will i get Bridging visa or should i leave australia and wait offshore untill my PR is granted?

As my kid goes to sydney school,i dont want his academic year to be impacted. will i get bidging visa untill 189 decision is made>?

    Peng Cheng · March 15, 2018 at 12:00 pm

    Hi Satya,
    If you lodged a valid 189 visa application while you were in Australia, then you should have received a bridging visa A shortly after you lodged this application. I think that the Department would allow you to remain in Australia on your current 457 visa if you are waiting for a decision on your lodged 189 visa application.
    PC

BG · March 13, 2018 at 1:15 pm

Hi Peng!

I’ve a question about my situation.
I’d applied for 187 visa in Aug, 2016. It’ll be 2years in Aug, 2018 but still my visa is not approved yet. So, if my visa is approved do i still need to stay for another 2years? I’m planning to leave in Sep, 2018 if my visa gets approved by then. And, My contract says i need to stay 2years after my visa is approved. But, technically i‘ll be here 2years already.
So, what do u think about my situation?
Thanks!

    Peng Cheng · March 15, 2018 at 12:09 pm

    Hi BG,
    I’m sorry but the commitment made for a 187 visa is to work for 2 years after your visa is approved.
    The Department’s policy does indicate that the work that you complete for the employer during processing time 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

Alessandro · March 11, 2018 at 4:34 pm

Hi Peng, i have a question for you and i help that you can help me,
I have applied last december for a 187 visa. I was before on a 457 visa with them since febraury 2017 and i started working with them in june 2016 with a 417 Visa.
Since i started i have been doing a lot of hours and since i applied for my 187 i have been working an average of 65 hours a week, with no breaks , unpaid ovetime.
My contract says i should work 38 hours plus reasonable hours
Now i have an offer from another employer that would guarantee me better hours and the same pay, keeping the same role.
Now my question is: can i somehow transfer my 187 application to the new employer? Being still on a 457 visa as the 187 hasn’t been approved yet can i transfer that to the new employer? Or instead do i need to apply for a new 187 visa with the new employer?
Is the immigration able to help me to reduce my hours without the risk of loosing my job and my current application or i should just wait until the visa gets approved and then open a case with them? This is really affecting my life in a negative way and my relationship too. Hope you can help me, thanks

    Peng Cheng · March 15, 2018 at 12:36 pm

    Hi Alessandro,
    Now my question is: can i somehow transfer my 187 application to the new employer? No sorry.
    Being still on a 457 visa as the 187 hasn’t been approved yet can i transfer that to the new employer? Yes you can transfer a 457 visa, before the laws changes.
    Or instead do i need to apply for a new 187 visa with the new employer? You would need to lodge new 187 nomination and visa applications if you want to change your sponsor.
    Is the immigration able to help me to reduce my hours without the risk of loosing my job and my current application or i should just wait until the visa gets approved and then open a case with them? I don’t think the Department can help you with this. Perhaps contact this government body: https://www.fairwork.gov.au
    PC

R.R · March 8, 2018 at 4:13 pm

Hi Peng,

I want to share my situation with you. Last year I lodged my RSMS 187 visa with one of the restaurant and i got bridging visa for that, later on after 8 months my employer shut down his business and I lodged one more 187 application with another restaurant and the second restaurant they are going to shut down within couple of months.
I didn’t withdraw any file so far .To be honest I really don’t know what to do, what not to do at present. Could you please help me to get out of this situation.

Thanks for help
Thank you for your time
Regards
R.R

    Peng Cheng · March 15, 2018 at 6:01 pm

    Hi RR,
    I am really sorry to hear about your unfortunate and unlucky situation.
    Sorry but I can’t provide advice 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

Mj · March 8, 2018 at 3:15 pm

Hi there,
I was holding my 457 since January 2014, as a cook in a cafe, last year March I apply for 186, but my boss sold the shop, and they can’t do it anymore. But I find another job, they willing to sponsor me. Do I still can get my 186 visa. Or not. Thanks

    Peng Cheng · March 15, 2018 at 6:02 pm

    Hi MJ,
    Sorry but I can’t provide advice 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

Davide · February 23, 2018 at 9:54 am

Hi Peng

I have been working over 3 years for the same company under the 457 sponsor visa and I have already applied for the permanent visa
After 9 month I still waiting for the approval but I m not happy to work there any more

My question is I can quit the job before my permanent visa is granted??
Or working for them part time while I m waiting ??

    Peng Cheng · February 24, 2018 at 11:48 am

    Hi Davide,
    That could adversely affect your application since you make the commitment to work for the sponsor after your PR is granted as explained above.
    PC

Nicole Parkes · February 16, 2018 at 8:45 pm

Hi Peng

I’m currently pending for my 186 direct entry.
My curresnt employer might be shutting down. Will it affect my application if I have to transfer employers? Can I even do that if it’s pending?

Thanks
Nicole

    Peng Cheng · February 17, 2018 at 6:36 pm

    Hi Nicole,
    If the business is not operating at the time of decision, then I don’t think that the Department can approve an employer sponsored visa.
    ​​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

Daniele · February 16, 2018 at 7:45 pm

Hi Peng,
I’m waiting approval for 186 visa, which was lodged 3 months ago.
The occupation applied is ICT Sales Representative.
I am planning to move to another team which still being sales.
Internally both positions have differente names (digital sales representative and existing accounts sales representative).
Will I have problems if I chanhe roles internally even if both are satisfied the requirements for ICT Sales Representative occupation?

Fab · February 12, 2018 at 4:10 pm

Hi I am on a Bridging visa C applied for 2nd time 187 visa because the first time the nomination has been refused for a mistake done by my employer.
I am thinking of leaving my employer atm, if i resign today do u know how much time will I have left in the country or to find another path pls?

thanks

    Peng Cheng · February 17, 2018 at 6:22 pm

    Hi Fab,
    You probably have time until the department starts to assess and then finally decide your visa application. If the Department refuses your visa application, they will send you correspondence confirming when your bridging visa ceases.
    PC

Oleksandr · February 4, 2018 at 11:30 am

I am on a 457 visa. I really need your advice, and hope you can answer my question.

Before Christmas I decided to leave my employer and started to look for a new job. I got a good job offer. We signed a contract and new sponsor lodged nomination application. The nomination has been approved on 10 Jan 2018. I gave formal 4 weeks notification of my resignation to my manager on 22 Jan 2018.

All managers and workers are sad that I’m leaving, and last two weeks everyone was trying to talk me out of leaving. And I have been offered better terms and conditions of my employment by senior management. However, the nomination has been approved by DIBP and I am at position of transmission.

As I am in doubt of my decision to leave, can you, please, advise me, is there a possibily to stay with my current employer. Is it possiable to cancel or refuse of nominaion and the new employment?

Thank you

Oleksandr

    Peng Cheng · February 4, 2018 at 12:25 pm

    Is it possiable to cancel or refuse of nominaion and the new employment? No sorry – business would need to complete 457 nomination application to transfer your sponsorship again.
    PC

      Oleksandr · February 4, 2018 at 9:00 pm

      Thanks Peng

parm · June 5, 2013 at 7:11 pm

Hi Peng,

First of all thanks for helping people.

Dear Peng I have been on my 457 visa for a month.. My employers attitude towards me is completely changed and is really bad although i am a skilled worker. He is also threatening me to cancel my visa.. I am trying my best to co-operate and work professionally. But he is bullying me for every thing ..without my fault. I dont know whats the problem. Now even I am so scared to go for work there. Luckily I have got somebody who is willing to sponsor me in my designated skills (He have got his Standard Business Approval already). but I am very scared and don’t want to let him(current employer) know that. Please advice what I should do as the new employer is willing to put my nomination asap.

Thank you.

    Peng Cheng · June 8, 2013 at 2:16 pm

    Hi Parm,
    If you want to change employer, you are just obligated to give your notice period as per your contract – you can get the sponsorship changed over and then give notice if you want.
    PC

varinder · May 29, 2013 at 8:52 pm

Hi peng,

Thankyou very much for replying,

I have completed 1 year and 3 month on 119 visa with my employer, now my employer doesn’t have job for me because restructuring of the business, he gave me the letter saying he doesn’t have job for me its nothing about my work performance it is just because restructuring,

how it will effect on my visa?
should I inform this to immi department? but he said not to do that ,
he said you can go and work where ever I want it won’t effect on your PR if its right thn can I change the state or employer?

thank you.

    Peng Cheng · May 31, 2013 at 9:41 pm

    Hi Varinder,
    Since your employer has terminated your employment, I think it is fine for you to move on and seek other employment. You have work right as a PR holder.
    PC

Andy · May 12, 2013 at 12:07 pm

Hey PC
I have been fired from my employer and am on a 457. I cannot find another employer to sponsor me.
My wife’s employer has just lodged their nomination for her on a ENS 186.
We’ll hopefully get her side of the online application in before the 28 days is up.
The problem is that immigration have told us this still doesn’t give us the right to stay in oz.
As the bridging visa will just be an extension of my 457 (I was the main holder), if I am not working for my original sponsor they will cancel both the 457 and the bridging visa.
It says on the immigration website that you have 28 days to either find another sponsor, leave the country or apply for another substantive visa. I thought this was what we have done!!!!
Any advice here? There must be a reasonable way to sort out this technicality…..
Thanks mate
Andy

    Peng Cheng · May 13, 2013 at 8:39 am

    Hi Andy,
    DIAC’s advice is correct – that is how the law operates in relation to the cancellation of the bridging visa if the 457 visa is cancelled. I can’t really suggest a solution without knowing more about your situation.
    PC

davy · May 4, 2013 at 11:32 pm

Hi Peng,
I have been with present company on 457 for 36 months who have lodged 186 application for permanent residency,but in the last 6 months have changed role still within company but have received 3 written warnings for what they believe to be under performing,if i receive another i could be terminated from employment,and what will happen to 186 PR application? Can i still pursue 186? My application went in 22 Feb 2013, bridging visa granted from 25 Feb Where will i stand?
Please advise.

    Peng Cheng · May 5, 2013 at 9:01 pm

    Hi Davy,
    If the role is terminated, then your employer is obligated to notify DIAC. If the role is no longer available, then DIAC can’t approve the application.
    PC

Ravi · April 16, 2013 at 5:15 pm

hi Peng,

Thanks for this service,

currently I am on 119 RSMS visa approved on 2nd of April,

Problem is now my business is for sell and one of my mate going to buy it…..
Dose it effect on my visa ??
can I leave that work place after other new owner take over or do I have to stay there for 2 years with new owner ??

other thing I came to perth in july 2009 on student visa 572 and as i told you i got RSMS 119 on this april

so when am i able to apply for citizen ??

Thanks in Advance

Ravi

    Peng Cheng · April 17, 2013 at 9:23 am

    Hi Ravi – technically, you need to work 2 years in your nominated role from the date of visa approval. But if DIAC is not informed, obviously they can’t take any action. The citizenship requirement is outlined below:
    The residency requirement for citizenship is – To satisfy the residence requirements you must have:

    1) 4 years lawful residence in Australia. This period must include 12 months as a permanent resident immediately before making an application for Australian citizenship; and
    2) absences from Australia of no more than 12 months in total in the 4 years prior to application, including not more than 90 days in the 12 months immediately prior to application.
    PC

Karen · March 14, 2013 at 2:21 pm

Hi Peng
I’m confused about my current Bridging Visa A. I submitted EN 186 DRC in Sydney to Paramatta office on 23rd November and was granted Bridging Visa A on 17th Dec. My husband has been on 457 all along and was also granted Bridging Visa A since he is on my 186 application. He is the primary visa holder of the 457 which is still in effect. I am the primary applicant of the 186 visa. He really wants to leave his employer who is sponsoring his 457. If he leaves his employer and ceases the 457, can he work for another employer on his Bridging Visa A? The bridging visa isn’t in effect at the moment because of the 457. On our Bridging Visa Grant, under work permissions it says he “Your Bridging (class WA) visa has full permission to work.”
I called immigration today and they said I would need to file a form 1005 to try and remove work restrictions because supposedly the bridging visa has the same conditions as his 457. I feel like I’m getting mixed answers. I also can’t get a good answer from my migration agent because they are not helpful.
I’m hoping you can give some good advice! Thank you so much, Karen

    Peng Cheng · March 14, 2013 at 5:54 pm

    Hi Karen,
    If he leaves his employer, and his 457 visa is cancelled after his employer notifies DIAC – then his BVA will also be cancelled when the 457 visa is cancelled – this is just how the law operates. He can wait until his current 457 expires, and then use his BVA to change employers since the BVA has unrestricted work rights.
    PC

James · March 11, 2013 at 12:40 pm

Hi Peng,

I’ve just read a question by another reader, asking that if they leave their employer, will their 2year probation period prior to applying to permanent Residency be reset? In which you have replied yes

Sorry if i have missed you answering this question else where but under my circumstancies, after being with my sponsoring employer for 18months, my company had to pull out pn the job and my contract was terminated due to no longer requiring my position/not having any work. I have now succesfully had my visa taken over by another company but i was just wondering if it is the same for me and that the two year period has now been reset? Regardless of it being out of my hands….?

You’re Advice would be highly appreciated.

Thanks, James

    Peng Cheng · March 11, 2013 at 12:57 pm

    Hi James,
    If you are referring to the 2 year pathway as a 457 visa holder to obtain a 187 or 186 visa, then the 2 years does reset when you change employers.
    PC

Peng Cheng · March 7, 2013 at 7:55 pm

Hi Shaun,
Your employer needs to pay you the guaranteed salary as specified in the nomination application. Commission based on sales is not guaranteed salary since it is variable. I don’t think that your employer can make this change – it would be against their obligations as a sponsor.
If you end your employer, can you ask for the cost of your return flight.
PC

Comments are closed.