Question of the Week
What is the process for Sc 482 visa?
Category: Business Sponsorships
Question asked
19 May 2018 - Granted a Temporary Work ( Skilled)(subclass 457 Visa)
Nominated Occupation: Technical Sales Representative - 225499
1) Are companies still nominating 457 visas? If required to switch employers, what is the process given the 457 has been abolished.
2) My partner holds PR, therefore I have de-facto PR eligibility but the 457 takes precedence. Is there any way I will not have to wait until 19 May 2020 to benefit from the bridging visa which allows for full working rights?
3) If I cease employment and more than 60 days pass where I cannot find an employer to nominate my 457, how can I remain in Australia?
4) If I were to cancel my 457 today, what are the restrictions for me to apply de-facto PR on my partner's visa and receiving the full working rights via the bridging visa? Is there a difference if I apply de-facto PR on my partners' visa. in Australia vs. outside of Australia.
My main concern is that I am bound to my current employer until 2020. Given I am planning on staying in Australia for the longer term I want to understand my best option to receive full working rights ASAP since I have eligibility to apply de-facto on my partners' visa.
Answer provided by Migration Agent
Dear VL,
I will be going through your questions one by one:
1) Are companies still nominating 457 visas? If required to switch employers, what is the process given the 457 has been abolished.
Yes. While 457 visas have been abolished, nominations for them can still be made and they are the same nomination applications as the 482 visa, the visa that replaced 457s:
Reg 2.72: Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa and Subclass 482 (Temporary Skill Shortage) visa
If switching employers and not occupations, only a nomination (and potentially a business sponsorship if they do not already have a valid one) must be approved.
2) My partner holds PR, therefore I have de-facto PR eligibility but the 457 takes precedence. Is there any way I will not have to wait until 19 May 2020 to benefit from the bridging visa which allows for full working rights?
This is the unfortunate thing about condition 8107 attached to primary 457 visa holders. Unless you decide to cancel your visa (which I do not advise), or another substantive visa is granted to replace your 457 visa, then No.
3) If I cease employment and more than 60 days pass where I cannot find an employer to nominate my 457, how can I remain in Australia?
You will have to lodge and have approved another, substantive visa to replace your 457 visa. Otherwise you will have to depart to avoid cancellation.
4) If I were to cancel my 457 today, what are the restrictions for me to apply de-facto PR on my partner's visa and receiving the full working rights via the bridging visa? Is there a difference if I apply de-facto PR on my partners' visa. in Australia vs. outside of Australia.
When a visa is cancelled, all visas including bridging visas are also cancelled. That means even if you lodge a partner visa before cancelling (it is not advised to lodge after because you will have to address additional criteria), the non-active bridging visa will also cease. If your visa is cancelled, you will therefore hold no visa and will be an unlawful non-citizen. You may be granted a bridging visa E which does not automatically come with work rights when resolving your immigration status. This bridging visa does not allow you to be granted a Bridging visa B to travel, you can only be granted a Bridging visa B if you hold either a Bridging visa A or B. You will also reset any citizenship time accrued previously.
The main difference is that if you lodge a partner visa in Australia (Subclass 820/801) you are granted a bridging visa to remain in Australia until a decision has been made. If you lodge when you are offshore (Subclass 309/100) you are not entitled to a bridging visa so will have to wait offshore or apply for a different visa to come to Australia and abide by those visa conditions.
My main concern is that I am bound to my current employer until 2020. Given I am planning on staying in Australia for the longer term I want to understand my best option to receive full working rights ASAP since I have eligibility to apply de-facto on my partners' visa.
Without any further information, it is impossible for me to determine whether you may be eligible for any visa with those work rights. Visas with full work rights are few in number.
I trust these answers all your questions and wish you well in your decision.
Kind regards,
Migration Agent
------------------------------Request for Clarification--------------------------------------
Thank you for your help.
Can you clarify the following comment, " substantive visa to replace your 457 visa. Otherwise you will have to depart to avoid cancellation."
If I depart within the time frame of ceasing employment, then my 457 will not be automatically cancelled? How long will I be able to keep it? Can you explain how that works?
-----------------------------Clarification from Migration Agent ---------------------------------
Hi VL
If you cease work for your sponsor after a certain period, in your case you have stated 60 days, Immigration will after this time consider you to be in breach of condition 8107. Breaching condition 8107 does not result in automatic cancellation, however, you must be careful where you are located for reasons below.
If you are in Australia when they are reviewing your matter, they will issue you a Notice of Intention to Cancel (NOITC) your visa. This notice will state that you must either: find a new sponsor to lodge and approved a new 457/482 nomination (to shift sponsor obligations to them), depart Australia (thereafter your visa will be liable to be cancelled), or be approved a substantive visa.
A substantive visa is any visa other than a bridging visa, criminal justice visa, or enforcement visa. Therefore, a bridging visa associated with a partner visa would not meet this requirement, and Immigration can cancel your visa even if an onshore partner visa has been lodged.
If you, however, depart Australia, Immigration can cancel your 457 visa after the stated timeframe at any time without notifying you (section 128 of the Migration Act):
SECT 128 – Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
In general, Immigration will notify you that they have cancelled your visa, not that they are considering cancelling your visa.
I trust the above clarifies.
Regards,
Migration Agent
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