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.

Client reviews
Comments

218 Comments

Moon · October 30, 2019 at 12:53 am

Hi, am on 457 visa which is expiring in June 2020, and I have applied for 190 visa in Oct 2018, m still waiting for my visa decision.
My question is if somehow Immigration cancel my 457 Visa, does it effect my 190 visa application?
If yes what are the options to save my 190!
Thank and Regards

    My Access Australia · October 31, 2019 at 10:38 am

    Unfortunately due to the time required to respond to your queries, we would need to refer you to our consultation services for such queries.

Limenta · September 6, 2019 at 7:17 pm

Hi Peng
I granted my 187 visa for a year
Can I apply 155 visa
Thanks

    My Access Australia · September 7, 2019 at 11:20 pm

    Hi Limenta,
    You can if you wish.

Janine · September 1, 2019 at 5:41 pm

I am holding a 187 visa, I am planning to apply for citizenship after 1 year of my visa grant (I am in Australia for more than 4 years) but my employer give me another 3 years contract for sponsoring me, If I am granted a citizenship can I leave my employer?For reasons they are not treating me well and not giving me the salary they promised. And how about my spouse?Can we move interstate?we are now in NT.

    My Access Australia · September 3, 2019 at 12:58 pm

    You can leave the employer as a citizenship – this won’t affect your citizenship.

      Janine · September 3, 2019 at 1:05 pm

      Thank you so much

      Janine · September 3, 2019 at 1:07 pm

      How about my spouse?can he leave NT?

        My Access Australia · September 7, 2019 at 11:08 pm

        Yes citizens can live anywhere. And dependent 187 visa holders can also live and work anywhere in Australia.

Dror · August 20, 2019 at 7:14 pm

Hi,I’m on 457 visa,after 2.3 years my employer sent me home by saying there’s not much work,is there a chance that me and my wife and 4 kids will be able to stay in australia until the end of the visa or at least until the end of the school year?

    My Access Australia · August 25, 2019 at 6:45 pm

    Hi Dror,
    Please see above post in terms of the Department’s actions after you cease employment and the Department is informed.
    You can try and find another business to take over your visa.

Sally · July 19, 2019 at 9:39 pm

Hi, I know a colleague who got sponsored by company but as soon as visa was granted she had became a part time worker and causing a big inconvenience to our work environment. She was sponsored to be a full time worker for at least two years. Will her visa cancelled or not?

    My Access Australia · July 26, 2019 at 9:40 pm

    Hi Sally,
    Sorry but to properly respond to your queries, I’d need to ask some questions and get some information/documents about the visa holder.

Mean · July 14, 2019 at 10:31 pm

Hi,

I have been working for my sponsoring company for 1 yr and 3 mos. I got my 187 visa last Jan 2019. I have an issue with my company with regards to salary and penalty I have discussed the matter with the company owner but nothing happened. I am a nurse, would it be possible to transfer to a government hospital to work as nurse too and remain in the sponsoring regional area for a period of 2 years. I am worried about the visa cancellation.

    My Access Australia · July 19, 2019 at 8:23 pm

    Hi Mean,
    You can’t transfer your visa. If you do decide to leave, please see the above post for further information.

Victor · July 10, 2019 at 9:08 pm

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?

    My Access Australia · July 11, 2019 at 8:01 pm

    Hi Victor,
    Generally speaking the Department does send you correspondence to give you an opportunity to withdraw the application before a visa refusal.

RRSCAD · July 9, 2019 at 7:21 am

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?

    My Access Australia · July 11, 2019 at 8:05 pm

    Hi,
    Visitor visa may be appropriate – depends on the purpose of your trip: https://www.eta.homeaffairs.gov.au/ETAS3/etas
    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.

John · June 30, 2019 at 1:26 pm

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?

    My Access Australia · July 3, 2019 at 1:48 pm

    Hi John,
    Please see the above post about leaving arrangments.
    In terms of renewing your permanent residency visa, please see the following link for more information about the Resident Return visa: https://www.myaccessaustralia.com/resident-return-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.

Alex · June 28, 2019 at 10:36 am

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?

    My Access Australia · July 3, 2019 at 1:50 pm

    If you want to get a further permanent residency visa after the expiry of your 186 visa, you will need to apply for a Resident Return visa. Please see the following article for more information about the requirements for the RRV: https://www.myaccessaustralia.com/resident-return-visa/

    Sameh Abdelmasih · November 26, 2019 at 5:54 pm

    hi Alex
    how long did it take for Immigration to process your 186 visa?

Arthur · June 26, 2019 at 10:18 pm

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?).

    My Access Australia · June 27, 2019 at 1:57 pm

    Hi Arthur,
    Yes, another business can take over the sponsorship if the visa isn’t cancelled.

      Arthur · June 27, 2019 at 2:07 pm

      Hi, thank you for replying.

      What I meant was something different though… if I cancel my visa for now, leave the country and decide that I want to come back in a year time. Can another (or the same company) sponsor me again? Considering that I only used half of my time in the country under this visa.

      Many thanks!

        My Access Australia · July 3, 2019 at 1:50 pm

        If the visa is cancelled, then its gone and you’d need to apply for a new visa if a business wants to spnsor you.

Amira · June 25, 2019 at 3:26 pm

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

    My Access Australia · June 27, 2019 at 1:59 pm

    Hi Amira,
    Sorry but termination of employment is an employment law issue. You would need to speak to an employment lawyer about termination.

Ashishkumar Patel · June 15, 2019 at 11:13 am

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???..

    My Access Australia · June 19, 2019 at 12:40 pm

    Hi Ashishkumar,
    You have unrestricted work rights on your 187 visa however if you leave within 2 years of approval there is a potential for the Department to investigate.
    Please see above post for detailed information about this situation.
    For an employment law dispute you will need to seek advice from an employment lawyer.

Zubair · June 9, 2019 at 10:20 am

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.

    My Access Australia · June 14, 2019 at 8:04 pm

    Hi Zee,
    You should already have a Bridging visa associated with your 190 visa. This bridging visa will take affect after your 457 expires. You will have unrestricted work rights on this bridging visa once your 457 expires.

Josh · May 29, 2019 at 10:05 pm

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

    Peng Cheng · June 1, 2019 at 9:18 pm

    Hi Josh,
    Sorry but to properly respond to your queries, I’d need to ask some questions and get some information/documents from you.
    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

Sultan · April 26, 2019 at 8:31 pm

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

    Peng Cheng · May 2, 2019 at 9:27 am

    Hi Sultan,
    Unfortunately I don’t think the Department can approve the application if the business is shutting down.
    PC

Jason · April 15, 2019 at 4:28 am

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

    Peng Cheng · April 15, 2019 at 1:48 pm

    Hi Jason,
    Please see the above post for the requirements. It is up to you what you decide to do, given the risks.
    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 options.
    PC

Anonymous · April 12, 2019 at 11:06 pm

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?

    Peng Cheng · April 15, 2019 at 1:49 pm

    Hi Anonymous,
    Please see the above post for the requirements. It is up to you whether you decide to leave, given the risks.
    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 options.
    PC

Natasha · April 8, 2019 at 5:26 pm

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

    Peng Cheng · April 15, 2019 at 1:50 pm

    Hi Natasha,
    You might be able to apply for PR when you return to Australia.
    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

David McCarthy · April 8, 2019 at 10:26 am

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?

    Peng Cheng · April 15, 2019 at 1:50 pm

    Hi David,
    The visa application fees can be paid by either the visa applicant or the business. It would depend on the agreement you have made with this business.
    PC

Comments are closed.