A very common question asked about employer sponsored visas is: “What happens if I need/want to leave my employer before the 2 year period is up?”
Employer Nomination Scheme (sc 186)
When you lodge the visa application form for this subclass you are required to declare that you agree to work in the nominated position for at least two years and understand that your visa may be cancelled if you provide false or misleading information. Basically, when you lodge this application you are declaring an intention to work of your sponsoring employer in your nominated position for at least two years from the date the visa is granted.
What happens if I leave my employer without completing the 2 years?
Once this visa is granted you have permanent residency rights and therefore have no enforceable obligation that prevents you from changing your employer or your role. Generally speaking the Department is unlikely to cancel your visa if you change employers unless you have provided false or misleading information in your visa application. It’s also important to keep in mind that both you and your employer must comply with applicable Australian workplace and employment laws.
Regional Sponsored Migration Scheme (sc 187)
Under the Migration Act 1958, section 137Q gives the Department a specific power to cancel the permanent residency visa that you obtained through the RSMS. The section states that permanent residency granted under the RSMS pathway may be cancelled if:
- You do not commence employment in your nominated role within 6 months of the date of approval (if you are in Australia at the time of approval) or within 6 months of entering Australia as the holder of a RSMS visa AND you do not satisfy the Department that you have made a genuine effort to commence employment within the 6 month period; or
- You commence employment but you terminate your employment within the first 2 years AND you do not satisfy the Department that you have made a genuine effort to remain in your nominated role for the required 2 years.
What does ‘genuine effort’ mean?
In assessing whether you have made a genuine effort, the Department must consider:
- The visa holder’s reasons and/or circumstances leading to the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
- The possibility that the visa holder, in collusion with the employer, does not commence work within the six month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia
- In the case of termination, the period of the visa holder’s employment with the employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort) and
- Any other matter which is relevant to the commencement or termination of the employment.
Possible scenarios that might relate to you
- If you are ending your employment based on ‘reasonable grounds’ – you are expected to provide your employer with reasonable notice.
- If you employer has gone bankrupt or was forced to close the business – the Department is unlikely to find that you did not make a genuine effort as these circumstances would be out of your control.
- If your deliberate actions to damage or interfere with the business were the grounds for your dismissal – the Department can take this into account when considering your genuine effort.
Can my employer have a say in the cancellation of my visa?
It’s important to remember that section 137Q is discretionary and the choice to cancel your visa will be totally up to the case officer. Your employer can provide information to the Department but they will not be involved in the actual decision–making process.
Please also note that either a migration agent, or the Department of Immigration cannot provide advice about whether or not a visa would be cancelled prior to ceasing employment. The assessment can only be made after you have ceased employment with your nominated employer.
If you would like more information about showing a genuine effort or other circumstances that might affect the Department’s decision, please contact a member of our migration team.