The contents of this article are correct as at 20 March 2016
Our firm is regularly asked the following question:
I’ve been working full time while holding a subclass 457 visa for the last two years but have had more than one sponsoring employer – am I eligible to apply for a 186 or 187 visa in the Temporary Residence Transition Stream?
Generally, in order to be eligible to apply under the Temporary Residence Transition Stream (TRTS), you must have been employed in the same nominated position for at least 2 years (out of the last 3), on a full time basis, as the primary visa holder of a subclass 457 visa.
In assessing whether you have been employed in the “same nominated position”, the Department will look at the following considerations:
- Is the position with the same employer and
- Is the position in the same role and occupation and
- Has the position been undertaken at the same location?
In most cases, if you have been sponsored by more than one employer, only the time spent working for the current sponsoring employer who is nominating you for permanent residency can be counted towards the two year requirement. For example:
You are employed and sponsored for a 457 visa as an Accountant by ABC Pty Ltd, an accountancy firm. After one year of employment, you cease employment with ABC Pty Ltd and find a new employer: XYZ Pty Ltd, located in the same office building. XYZ Pty Ltd is also an accountancy firm, it is of similar size of ABC Pty Ltd and services a similar client base but the business in completely unrelated to your previous employer’s business. You are nominated as an Accountant by your new employer XYZ Pty Ltd.
In this scenario, you must work for at least another 2 years with your new employer on a full time basis, as the primary visa holder of a subclass 457 visa before you may be eligible to be nominated within TRTS by your new employer.
There are limited circumstances where employment with a different 457 sponsor may be considered as employment with the “same employer”. These circumstances may be applicable to situations where there has been corporate restructure or sale that has led to a change in legal entity of the 457 business sponsor thus requiring employees to be sponsored under a new 457 business sponsorship agreement but there has been no change in the operation of the underlying business.
It will require you to show you had at all times been working in the same position, performing the same duties , reporting to the same management structure and essentially working for the exact same business which is now operating under a different ABN/ACN. Some possible examples are as follows:
Sale of Business/Take over
You are sponsored for a 457 visa as an Accountant by ABC Pty Ltd. After completing 1 year of paid, full time employment, ABC Pty Ltd is taken over by XYZ Pty Ltd. There is a change of ownership but no changes in staff, reporting structure or location of business. The business continues to function as usual but now operates under a new ABN and ACN registered to XYZ Pty Ltd. You are renominated under XYZ Pty Ltd’s sponsorship agreement as an Accountant and continue your employment on your 457 visa in the same position, undertaking the same duties and reporting to the same management structure.
After a further year of employment at XYZ Pty Ltd, XYZ Pty Ltd may be able to nominate you for permanent residence under within TRTS by relying on your 1 year of employment with ABC Pty Ltd to meet the two year requirement.
Change in the structure of the business
You are sponsored for a 457 visa as an Electrician by your employer Mr Jones who is a sole trader trading under the business name of “Excellent Electricians”. After 1 year of full time, paid employment, Mr Jones decides to run his business through a company structure. Mr Jones registers a new company Jones Electrical Pty Ltd where he is the sole director and shareholder of the company and continues trading as “Excellent Electricians”. He obtains a new 457 sponsorship agreement under Jones Electrical Pty Ltd and renominates you as an Electrician. You continue your employment on your 457 visa in the same position, undertaking the same duties and reporting to the same management structure.
If Jones Electrical Pty Ltd wishes to nominate you for permanent residency within TRTS, it may count your employment under the previous sponsorship agreement granted to Mr Jones in his capacity as a sole trader towards meeting the 2 year requirement.
The above scenarios are examples of the circumstances where the Department is likely to accept that the two sponsoring employers are essentially the same business.
Of course, the reality of any corporate restructure, take over or sale is that there may be more changes to the operation of the business than what is described in the above scenarios. This could include changes to business location, changes to business name, changes to staff or management structure to varying degrees. Practically speaking, this means that in most cases where there has been a change in the legal entity of the 457 sponsor due to restructure, take over or sale, there may not be a clear cut answer to the question of whether the Department will accept that you to have been working for “the same employer” for the purposes of meeting the requirements of the TRTS.
Each case will need to be assessed carefully, having regard to the individual circumstances. If TRTS is unlikely to be an option, then other options should be considered, including:
- Applying under the Direct Entry Stream pathway under subclass 186 or 187
- Waiting a further period of time to apply within TRTS
- General Skilled Migration
- Business Migration
- Family Migration
If you have any questions regarding your eligibility for a subclass 186 or 187 visa, or would like further information on alternative visa options, please click this link to contact Visa Lawyers Australia.