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2 years on 457 for the same employer or in the same occupation ?
PAM 3
11.1 Applicability and overview
The section applies to ENS and RSMS nominations lodged under the Temporary Residence Transition stream.
The Temporary Residence Transition stream provides a streamlined pathway to employer sponsored permanent residence for persons who have been employed by the nominating employer as a primary UC-457 visa holder in the nominated occupation for a total of at least 2 years in the 3 year period immediately before the lodging of the nomination.
This section provides policy guidance in assessing related criteria at regulations 5.19(3)(a), 5.19(3)(b) and 5.19(3)(c).
Does anyone know where in the legislation reg 5.19 sets requirement of working for the same employer for 2 years ?
If so, please enlighten me as I am still in the dark believing that legislation requires working in nominated position for 2 years and being sponsored for RSMS /ENS by business that is currently approved under SBS and employs candidate for visa 187/186 under valid nomination . I see no requirement of employment with the same business for 2 years as soon as the nominated occupation under SBS remains the same.
legislation says :
(3) The Minister must, in writing, approve a nomination if:
[(a) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
(a) the application for approval:
(i) is made in accordance with subregulation (2); and
(ii) identifies a person who holds a Subclass 457 (Temporary Work (Skilled)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and
(iii) identifies an occupation, in relation to the position, that:
(A) is listed in ANZSCO; and
(B) has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Temporary Work (Skilled)) visa; and
Has the same code – not the same workplace , not the same nomination , not the same employer !!!!
[(i) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Temporary Work (Skilled)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and
(ii) is actively and lawfully operating a business in Australia; and
[(iii) inserted by SLI 2013, 146 with effect on and from 01/07/2013 - LEGEND note]
(iii) did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and
[(c) amended by SLI 2013, 32 with effect on and from 23/03/2013 - LEGEND note]
[(i) substituted by SLI 2012, 256 with effect on and from 24/11/2012 - LEGEND note]
(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);
Person holds visa in relation to nominated position (occupation identified by ANZCO )
Business must be current employer – visa applicant must be recently nominated by the business for nominated position .
Where is 2 years with the same business requirement set up ?
(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 theSubclass 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
The person suppose to be employed for 2 years in the occupation/position of which the person holds the 457 visa . Where is requirement of working for in the same workplace ?
Comments
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Monday, 09 December 2013
Hi Daniel ,
Thanks for support . If I am right what can be done about that interesting statement of PAM 3:
"11.6 Employment in the same position
Regulation 5.19(3)(c)(i)(A) requires the nominee to have been employed in the position to which their UC-457 visa relates (that is, same employer, same role and same location) for at least 2 years in the 3 years immediately before the lodging of the nomination."
I see no grounds for such a interpretation . The legislation does not impose requirement for being employed in the same location with the same employer . Regulation 5.19(3)(c)(i)(A) requires the nominee to have been employed in the position to which their UC-457 visa relates.
Position of 457 visa holder relates to most currently nominated position - otherwise , if new nomination after ceasing employment with employer is not approved , visa 457 suppose to be cancelled for non compliance closing pathway to residency in transitional stream.
Has anyone challenged this policy before ? Christopher - is there any chance challenging this legislation with Magistrate Court ? -
Monday, 09 December 2013I was, likewise, confused by the PAMS interpretation of the regulations on the transition stream.
I understood that regulation 5.19 was referring to the same position. Under Schedule 2, 186.223(1) the provisions were about the nominated position being the same for 2 years not necessarily with the same employer.
I deferred to do an application on the transition stream due to the PAMS interpretation, the prospective client changed employers, thus, I asked him to wait. -
Wednesday, 19 March 2014
Given the new legend format - I am really confused for me I would like to know where in PAM's it clarifies 2 years employment - example - nomination for 457 granted 20th MArch 2012 and 457 visa applicant visa granted 20th March 2012 - what is the date nomination application - TRT ENS can be lodged is it 20th March 2014 - there is no information on calculating this and it states at Least two years - does at least mean give or take a few days ??????
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Monday, 04 August 2014
Slightly off topic, but if an employee agrees to get over on a 457 visa to work for an employer because they need them in Australia ASAP, my understanding s that they cannot apply for permanent residency until 2 years has passed? Whereas if they waited fro three months and applied from offshore, they could have come in on a 186 visa with PR.
I have done this to help my employer, and I am shocked to find that I have to wait two years while paying enormous amounts of money for my 3 kids schooling (at $5000 per kid in NSW) that costs way more than the visa itself!! And I am blocked from applying for PR before then?
Someone never thought that through properly...
Why is there a 2 year waiting period at all? Why should a person who has already met criteria and is already in employment in Australia be more prejudiced than the same person outside Australia? -
Saturday, 10 June 2017
I'm on 457 visa for a company for last two years..... but my company changed their ABN but still everything is same... owner, managers, position.... can I apply for 186 or not. My nomination for new ABN recently was asked to withdraw by immigration as they changed the rules in April 2017.
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Sunday, 11 June 2017
Hi John,
The new rules in April 2017 do not affect your case under the circumstances you described. If you have further concern, you can contact me by my email below. -
Sunday, 25 August 2019
hi bro please let me know we can apply 186 if my owner nominate from different restaurant but restaurant name and owner is same only thing is abn different it is possible
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Sunday, 10 September 2017
hello i am in tough situation.My 457 visa which already 2 years completed and my sponsor nominate me 186 TRT stream.i already apply for my ENS 186 Nomination and visa application 15 aug 2017 and 30th aug 2017 his company has liquidated so what to do now???if other sponsor nominate me for same position and same ANZSO code is there any possibility to apply my ENS now???or i can moved Direct entry under 186??/i have 3 years full time paid employment in my same occupation from oversees and 2.6 years full time work experience in Australia also i got positive full skill assessment, could you please any one help me out regarding this situation????
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Monday, 11 September 2017
Please call us on 0749464680 to set up time to discuss options
Piotr Ferenc MARN 0743766 -
Tuesday, 12 December 2017
Hi
I have applied ens 6 months in june 2017 after completing 2 years on 457 with my firm.Now director of my ompany changed.Will it effect my ENS visa.What should I do now.
Thanks. -
Thursday, 18 January 2018
Hi
I'm on 457 visa for a company for last ONE year..... but my company changed their ABN and company name but still everything is same... owner, managers, position, location....In this case wt we can do? or restart again everything -
Thursday, 18 January 2018
Hi
I'm on 457 visa for a company for last one year..... but my company changed their ABN and name but still everything is same... owner, managers, position.... location....in this situation what we can do? Or restart again everything.Any options -
Thursday, 18 January 2018
No problem new nomination is required for 457 and we can go ahead with 186
8.1.12.1 Overview
In order to satisfy the 2 year requirement for the purposes of regulation 5.19(3)(c)(i)(A), nominators must demonstrate that the UC-457 visa holder has worked with the same employer for the whole period being considered. The term ‘employer’ refers to the entity/s that participates in the employer-employee relationship. An entity that changes structure, becoming a new discreet entity, may still be considered the same employer for the UC-457 visa holder provided they fall under the parameters outlined in Scenario 3 – more than one standard business sponsor.
There are four scenarios that would ordinarily satisfy this criterion:
The nominator has been the sole standard business sponsor for the nominee, and the nominee has only worked directly for the nominator for the whole 2 year period being considered.
The nominator has been the sole standard business sponsor for the nominee, and the nominee has worked for either a combination of the standard business sponsor and an associated entity/ies of the standard business sponsor or solely for an associated entity of the standard business sponsor (as allowed through the UC-4578107 condition).
The nominator has not been the sole standard business sponsor for the nominee in the period considered for the 2 year requirement, however the nominee can still be considered to have remained with the “same employer”.
The nominator was an overseas business sponsor who subsequently establishes an Australian entity which becomes a standard business sponsor during the 2 year period. The nominee can still be considered to have remained with the “same employer”.
Although there may be other scenarios that satisfy this criterion, policy advice for each of the above scenarios is as follows.
8.1.12.2 Scenario 1 – one standard business sponsor, no other employers
In the instance where the nominator has been the sole standard business sponsor for the nominee, and the nominee has not worked for any other entity at any stage of the 2 year period considered for the 2 year requirement, then this satisfies the ‘employment with the same employer’ criterion.
8.1.12.3 Scenario 2 – sole standard business sponsor, but work undertaken with associated entities
This includes instances where the nominator has been the sole standard business sponsor for the nominee, but the nominee has undertaken work with other entities. A person holding a UC-457 visa granted under 457.223(4) (standard business sponsorship) is permitted to work within the business activities of the entity that sponsored them or within the business activities of an entity related to the nominating entity under the provisions of s50AAA of the Corporations Act. This is based on condition 8107 condition, which would have been applied to the UC-457 visa - 8107(3)(a) refers.
For more information on where two entities are associated, refer to Related and associated entities under the Corporations Act.
8.1.12.4 Scenario 3 – more than one standard business sponsor
There may be applications for the Temporary Residence Transition stream where the nominator has not been the nominee’s sole standard business sponsor during the whole required 2 year period. In these cases, work undertaken with an entity other than the most recent standard business sponsor may still be considered towards the 2 year requirement if the nominator can demonstrate that the nominee has actively performed the duties of the position for the required 2 years despite a change of their employer. This may occur in situations where the current standard business sponsor has undergone business restructure/takeover/sale/closure and may have changed their ABN/ACN/name, which required a new standard business sponsorship approval. That is, there must be some connection between the most recent standard business sponsor and any previous standard business sponsor/s of the nominee to be counted towards the 2 year requirement.
When assessing this criterion for cases where there has been more than one standard business sponsor, delegates should consider the following three questions and, if they consider the answers to the three questions to be generally ‘yes’, may consider this criterion to be met:
Is the nominee still working in the same position, performs the same duties and has the same working conditions in the required 2 year period, regardless of the change of sponsor?
Does the nominee report to the same management structures?
Has the nominator retained the same business name and/or operations, but is considered to be a new legal entity?
The policy intent is to accommodate for UC-457 visa holders that apply for Temporary Residence Transition stream that have been affected by circumstances outside of their control, such as their employer undergoing a business restructure, takeover, sale or closure.
9. Scenario 4 – overseas business sponsor becomes a standard business sponsor
There may be applications for the Temporary Residence Transition stream where the nominator was an overseas business sponsor at the start of the required 2 year period but established an Australian entity which became a standard business sponsor during the 2 year period. The time spent working for the overseas business sponsor can be counted if the nominee continues to be employed in the same position. -
Thursday, 18 January 2018
If you need detailed advise please contact me on private piotr@australiahome.com.au
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Saturday, 28 April 2018
Hi, I need a genuine advice that I have applied my186 trt and waiting since 7 month but my restaurant is renovating but my owner has another restaurant in same ABN in different location.Does this impact my visa application? Thanks in advance
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Tuesday, 10 July 2018
Dear sir/ madam
Dear sir / madam
I was granted 457 visa on nov/2013 since then I worked for one company as a retail buyer ( men’s & ladies casual clothing)for a period of 2 years and 4 months and my employer closed his business , after that my new employer took the same location on lease and started the same operation ( men’s & ladies casual clothing). My new nomination ( for my current employer)as a retail buyer was approved on 15/feb/ 2017 and I’m still working . I have completed working for both companies from same location over 3 years and I have positive skill assessment as a retail buyer.Please advice will my work experience will be counted as continues under same employer for two years ( please note - my position, duties, location and business operation is same for both companies and my position in organisational chart for both companies is same ,I have applied under transitional stream . The only relationship both company have is same operation and same location.Unfortunately I can’t apply under direct entry stream since I’m over 45 years of age
Thanks
Best regards
Deen -
Wednesday, 10 July 2019
Hi there,
We are currently in the final stages (couple of documents missing) of 186 nominated visa, after beeing for the 3 years on 457 with the same company. However, the sponsoring company has informed us they are being under liquidation and will probably open another company. My question is what happens to us now and in case they transfer us to the new company do we need to cancel this process and start everything all over again?
Also in case, we want to change employer (because of the uncertainty of their business) do we need to start the whole 457 waiting period again? -
Sunday, 25 August 2019
hi we can apply 186 from different location but restaurant name is same and owner is same but thing is abn no is different thanks
Immigration blog
You are right! The applicant could have changed employer during the two year period. As long as he was nominated again by the new employer, he can apply for PR after 2 years' working in the occupation as 457 visa holder.