2 Year Work Requirement Going From 457 to 186/187

Getting your permanent residency through employer sponsored visas

For many, the path to permanent residency on an employer sponsored visa looks like this:

An individual is first sponsored through a Temporary Work (Skilled) visa (Subclass 457), completes 2 years of employment and, if their employer wishes to offer them a permanent position in that same occupation, then applies for the permanent Employer Nominated Scheme (ENS) visa (Subclass 186) or Regional Sponsored Migration Scheme (RSMS) visa (Subclass 187) via the temporary residence transition stream.

Read Skilled Enough to Qualify for a Direct Entry ENS 186 Visa?One critical requirement for the application of a permanent employer sponsored visa (186/187) through the temporary residence transition stream is:

Reg 5.19 (3)(C)
either:
(i)  both of the following apply:
(A)  in the period of 3 years immediately before the nominator made the
       application, the holder of the Subclass 457 (Temporary Work (Skilled))    
       visa identified in subparagraph (a)(ii) has:
(I)  held one or more Subclass 457 visas for a total period of at least 2
      years; and
(II)  been employed in the position in respect of which the person holds
        the Subclass 457 (Temporary Work (Skilled)) visa for a total period of
        at least 2 years (not including any period of unpaid leave);
(B)  the employment in the position has been full-time, and undertaken in
       Australia; or
(ii)  all of the following apply:
(A)  the person holds the Subclass 457 (Temporary Work (Skilled)) visa on
        the basis that the person was identified in a nomination of an
        occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-
       subparagraph 2.72(10)(e)(iii)(B);
(B)  the nominator nominated the occupation;
(C)  the person has been employed, in the occupation in respect of which
        the person holds the Subclass 457 (Temporary Work (Skilled)) visa, for a
        total period of at least 2 years in the period of 3 years immediately
        before the nominator made the application

Essentially, this means that:

  • The 457 holder has worked with their sponsor in the occupation they were nominated for, and
  • Has completed 2 years of paid employment in the 3 years before applying for a permanent 186/187
  • The position has been full time
  • The position has been undertaken in Australia
  • Their sponsor is an Australian business

 

Period of employment

Full time work is taken to be no less than 35 hours a week and must be . Employment must also be paid. You are free to have taken the standard annual or medical leave (paid) but any periods during which you might have had an agreement with your employer to go on an extended period of unpaid leave (e.g. sabbatical or parental leave) cannot be counted towards the 2 years.Work must be undertaken in Australia, but these are the exceptions. First, time spent overseas training, arranged and provided for by the sponsor, can be counted towards the 2 years.

The 457 holder must be have been paid for the duration of the overseas training. If the 457 holder has spent time overseas working, the time will count if the job description for the nominated occupation has specified that there may be overseas work involved, the nature of the job runs parallel to this, and the 457 holder was paid at their salary rate for this duration. If overseas work or training did not fall into the specific circumstances detailed above, these periods cannot count towards the 2 years.

The 457 holder will need to have completed 2 years in the 3 years before applying for a permanent 186/187 visa. This is to help account for any periods during which the holder may have been on unpaid leave or did not fulfil the circumstances as above.

Evidence that the conditions have been met will be required and documents to support this would include a statement from the employer on the 457 holder having fulfilled the 2 years and have done so within the confines of the associated requirements, PAYG summaries, pay slips, leave records and so forth. Work overseas would also need to be well documented to demonstrate they satisfy the conditions set out above.

 

More than one 457 visa

It is possible for a nominee to hold more than one 457 visa whilst working in the same role for the same employer. This may happen if the 457 visa ceased before the 2 year requirement is complete (this can happen due to unpaid leave or a short 457 validity) and a second 457 visa was applied for for the sponsoring company to retain this employee. If the nominee went on a bridging visa between the 457 visas, their time on a bridging visa would still count towards the 2 years. It is important that in this situation, the nominee was employed by the same sponsor, worked in the same role and in the same location.

 

Employed in the same role

The 457 holder has been approved to work in a specific nominated occupation for their sponsor. As the 457 programme was built to bridge gaps between supply and demand for predetermined occupations, a 457 holder working outside their responsibilities of the occupation they are nominated for is seen as a breach of conditions and abuse of the system. It is important that in the 2 years of employment, the nominee remains precisely in the same role for which they have been nominated. This is assessed through examining their duties, their position on the organisation chart and remuneration.

 

Employed with the same employer

If you have been with the same sponsor for 2 years, same desk, same company, this is considered satisfied. Easy as.There are other situations for ‘same employer’ as well.

Associated entity

If you were to work for an associated entity of your sponsor under the same nominated occupation, you would be considered to be working for the same employer. For example, if you are a cook and have been sponsored by an employer who owns a few restaurants, you would be able to move within the businesses as a cook. You must still be in the same occupation and sponsorship obligations such as market-rate pay still apply.  Should you work in another role or be underpaid during your time with the associated entity, you would be in breach of your visa conditions.

More than one sponsor

In the event that your company is restructured or bought over or otherwise, the Standard Business Sponsorship would no longer be in effect as the company would exist as a different legal entity (different ABN). This effectively terminates your nomination as well. Even the name of the company and the workplace and your colleagues don’t change, but the ownership has, the ‘new’ company will have to reapply to be a sponsor and reapply your nomination. You should not have to worry if the organisation is responsible.Under such circumstances, you would not be held accountable for factors outside your control and you would still be considered to have worked for the same employer, so long as the sponsor that follows has an established and sensible connection to your previous sponsor. Time spent with the previous sponsor will be counted along with the time spend with the new sponsor. As expected, you would have to be working in the same position, have the same responsibilities and exist in the same spot on the organisation chart.

Overseas business sponsor becomes a standard business sponsor

In the event that the sponsor was an overseas sponsor and during the 2 year period of a 457 holder, has established an Australian business which is also an approved standard business sponsor, then the 457 holder is taken to be employer under the same employer. The deal is the same. Same role, same, same, same.

Got it? Don’t fret, tt took us awhile too.

Unless your company goes through one of those confusing ‘same employer’ situations, things should be quite straightforward. Perform the roles as expected in the nominated occupation for the employer who sponsored you for at least 2 years. But in practice things are rarely straightforward. A job is never just that. Workplaces are like people, each as different as the next, and sometimes it just doesn’t work out like you thought it would. Or maybe something happens with the company. If you’re on a employer sponsored 457 visa and you would like to continue to stay in Australia, what then?

It is not impossible to switch employers, however you would need to be quite careful to avoid breaching any visa conditions. Fortunately, so long as you are not in breach of visa conditions, you will remain on the same 457 visa through to your next job (supposing the employer has their Standard Business Sponsor (SBS) and nomination applications approved). If you do decide that this is the path you want to take, you need to understand that to fulfil the above requirement, you would effectively be ‘resetting’ your two years with your new employer.

We know you want to know more about changing sponsors, that then becomes about condition 8107. A change in regulation is coming quite soon for condition 8107, so we won’t dig in just quite yet. Keep checking back, when we have the full details, you will too! Just know this. There is a time limit between the job that you are leaving/no longer have and gaining, and lodging applications with your new sponsor. With 457 visas under heavier and heavier scrutiny, do not attempt this without first getting quality advice from a reputable agent!

30517-AILS

Jee Eun Han
Senior Migration Agent, Australian Immigration Law Services
MARN 0850073

4 thoughts on “2 Year Work Requirement Going From 457 to 186/187

  1. Hi, thanks for this very helpful article. I have a question for which I can’t find an answer anywhere. Perhaps you can help.
    I currently have a 457 visa with a 2 years duration. My employer is ok to nominate me for the permanent residency and offer me a permanent role. Would you think I should wait the end of the 2 years (end of my 457 in May 2017), and apply to the PR through the Employer Nominated Scheme or should I use the Direct Entry Scheme right now.
    In the first case I won’t be allowed to work after the end of my 457 and until I get my 186 bringing visa.
    Just not sure I can use the Employer Nominated Scheme if technically I am not anymore employed by the company (because of the end of the 457).
    Thanks for your help.

    Like

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