Holders of Temporary Work (Skilled) (subclass 457) visas are subject to the condition 8107 work restriction. Condition 8107 means that a subclass 457 visa holder can generally only work for their nominating employer (or associated entities in certain situations). In accordance with condition 8107, subclass 457 visa holders must also work in the occupation which is specified in the nomination provided to the Australian Department of Immigration and Border Protection (DIBP).
Therefore, if a 457 visa holder’s employment ceases (for whatever reason) their visa may be cancelled, unless they are nominated by a new employer, as explained below.
Is it Possible for 457 Visa Holders to Change Employers?
Subclass 457 visa holders are able to transfer employers, even though they are subject to condition 8107. Previously, nomination with the new employer would need to be approved within 90 days after termination or resignation from the initial sponsoring employer.
When transferring employers, subclass 457 visa holders are able to retain their subclass 457 visa and are not required to lodge a new visa application. However, the new sponsoring business in the past must have obtained approval as a standard business sponsor. The new sponsoring employer also required approval from the DIBP to nominate the specific subclass 457 visa holder.
Condition 8107 Policy Change
Until now, if a subclass 457 visa holder did not have their nomination with a new employer approved by the DIBP within 90 days of termination or resignation of employment from their initial sponsoring employer, the visa holder was liable to have their visa cancelled in breach of condition 8107. This led to unfortunate situations for subclass 457 visa holders who tried to comply, but processing delays for new sponsorship and nomination applications led to an inadvertent breach of condition 8107 because the 90 day time limit had expired.
The DIBP has now changed this policy and 457 Programme Management has confirmed with the Cancellations Team that cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer, but have lodged a new nomination application within 90 days.
However, in the situation where a new nomination application has not been lodged within this 90 day period, cancellations will proceed and visa holders will receive a Notice of Intention to Consider Cancellation (NOICC).
This is an important policy change for businesses wishing to sponsor a candidate already holding a subclass 457 visa because it provides greater certainty that the subclass 457 visa holder’s current visa will not be cancelled if there are processing delays for the new nomination application or sponsorship. The policy will also assist subclass 457 visa holders transferring employers since their visa will no longer be subject to cancellation for breach of condition 8107, provided they have lodged a new nomination application within 90 days.
Potential Change of Employer Transfer Time Period
From 19 November 2016, the DIBP has proposed that the time period a primary subclass 457 visa holder can remain in Australia after their employment ceases be reduced from the current 90 days to 60 days.
This proposal is subject to approval by the Governor–General. If this policy change proceeds, it would apply to subclass 457 visas granted on, or after, 19 November 2016.
For advice regarding subclass 457 sponsorship, nomination and visa applications, please do not hesitate to contact us at firstname.lastname@example.org for Australian immigration assistance.
The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.