By Jee Eun HAN (RMA)

Australian Immigration Law Services

  Since the introduction of the two stream Employer Nomination Visa (ENS) back on the 02/07/2012 tens of thousands of hopeful 457 visa holders are now becoming ready to apply for permanent residency, sponsored by the same employer.

Their 2 years are coming up fast but there are a number important issues (amongst many) that stand out where people make mistakes in their applications when it comes to the Temporary Residence Transition (TRT) stream  

1) Applicant must have worked for the sponsoring employer for 2 years.

The regulations stipulate;

5.19 (3)(c)     either:

(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);

It is not sufficient for the visa applicant to be nominated for PR just to have been the holder of the 457 visa, they must have also worked in Australia on that visa for 2 years.

This brings up the issue of paid and unpaid leave.

Paid holidays are fine during this two year work period but we have come across some cases where the applicant have taken unpaid leave, in addition to their regular holidays. This unpaid leave will not count towards the calculation of the two-year period required for the Transition Stream applicants.

The DIBP policy requirements state the following on this issue;

Period of continuous employment

To satisfy the requirements of regulation 5.19(3)(c)(i)(A), the nominee must have been employed and actively performing the duties of the nominated position for a total of at least 2 years in the 3 year period immediately before the lodging of the nomination.

For the purposes of this requirement, periods of absence on leave to which the nominee would be entitled under relevant employment provisions (such as annual leave, paid maternity leave, paid sick leave) count as time actually worked.

2) You must have been working for the sponsoring employer for no less than 2 years before the company application and your application is lodged.

Recently one happy 457 visa holder consulted with our office asking a few questions regarding his ENS application. His two year period was about to come up in October and mentioned that the sponsoring company had already lodged their application including nomination in the TRT stream for him as the person to be sponsored. The application was waiting for a case officer to be allocated.

Sadly we had to inform him that the sponsorship application lodged by the company would be refused.

Why?

It will be refused because the regulations clearly stipulate that the individual nominated must have held a 457 visa whilst working for the nominating company before the sponsorship application and nomination is lodged.

The ENS form, using this TRT Stream, stipulates you must nominate the person who is going to be sponsored for PR. If that person had not held the 457 visa whilst working for the company for 2 years then it will not meet the regulations (below) requirements.

5.19(3) c  

(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 the Subclass 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; and.....

Of course the ENS application is a complicated exercise but we thought these two points in particular are not well known by the companies that wish to sponsor their employees and the applicants themselves.

It is important to note that the Direct Entry ENS requirements do not have these issues mentioned above to worry about. This is why it becomes confusing because the law is very different depending upon which stream you are using, TRT or Direct Entry.

The Direct Entry stream does not require visa applicants, or those who are going to be nominated to hold 457 visas. In this case companies can apply and obtain nomination approval in advance. This approval then last for 6 months and the visa applicant must apply before this period expires. A very different arrangement to the TRT Stream.

Be careful which stream you are using and the rules that govern each pathway to permanent residency.