New 457 primary visa holders who have ceased work will have 60 days before breaching their visa condition

From 19 November 2016, new regulations passed will see that any new 457 primary visa holder who has ceased work with their sponsor will have 60 days before they will be considered to be in breach of their visa conditions. Currently, it is 90 days, which was itself an increase from 28 days a few years ago.

When an overseas national is sponsored on a Temporary Work (Skilled) (subclass 457) visa, they must have condition 8107 attached. Any members of their family who are also granted a 457 visa, while also considered to have been “sponsored” do not have this condition. This is because they are not employed by the sponsor and have unrestricted work rights.

Condition 8107 is an important condition as it effectively ties the visa holder to their sponsor. It would not be appropriate for a business to go through the arduous process of sponsoring an overseas national to find they can work for another employer soon after. In order to change employers, the new employer must have had a subsequent 457 nomination application approved first. There are two exceptions to the restriction of working for others businesses. The first is when the employers are deemed “associated entities” under the Corporations Act 2001 (Cth). The second is for medical practitioners and general managers. Visa holders approved for these occupations can work for other business in their occupation as many medical practitioners are contract employees, and general managers may be required to sit on the boards of different companies.

When a primary visa holder ceases employment with their sponsor, as part of the mandatory sponsor obligations, their employer must notify the Department of Immigration and Border Protection (DIBP) of the visa holder’s last day of employment within 28 calendar days of this event. It should be noted that ceasing work is not the same as taking leave or reasonable amount of leave without pay. The specific date is important as from 19 November 2016, 60 days from the 457 holder’s last day of employment is when they will be considered in breach of condition 8107, and their visa, and the 457 visas of their family members, may be subject to cancellation.

Many people falsely assume that this means automatic cancellation. This is not the case. The DIBP will issue and Notice of Intent to Cancel to the primary 457 visa holder. This is to place the person on notice that should they not attend to this matter, their visa will most likely be cancelled. Generally, this will require the visa holder to do one of three things: have a business successfully nominate them for a 457 visa, thereby transferring the sponsor obligations to their new employer; have a different visa approved, as there will be no 457 visa to cancel; or, depart Australia.

Interestingly, this change will “apply to visas granted on or after 19 November 2016,” so it should not affect current 457 visa holders. Of course, there are other aspects to condition 8107, such as not changing occupation. Condition 8107 is also used for other temporary work visas that require sponsorship. The reason for the amendment, and the necessity for this condition in the first place, is to improve the integrity of the programme.