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Hi,
I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.

Following case:
- currently on a 457 primary since 1 year
-prior, on a subclass 457 as secondary

- worked in the same nominatED position with the nominatING employer for more than 2 years

Does it satisfy the two years requirement?
Immigration agents and the same 131881 provided me with different answers.

I would be happy to have opinions, but most of all, I would like to know the following:
- is there anything on IMMI website and Legislation that specify that a condition has not been met?
- has anyone been in a similar situation?
- in case of doubt the Case Officer "must" approve or decline the application?
 

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Hi,
I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.

Following case:
- currently on a 457 primary since 1 year
-prior, on a subclass 457 as secondary

- worked in the same nominatED position with the nominatING employer for more than 2 years

Does it satisfy the two years requirement?
Immigration agents and the same 131881 provided me with different answers.

I would be happy to have opinions, but most of all, I would like to know the following:
- is there anything on IMMI website and Legislation that specify that a condition has not been met?
- has anyone been in a similar situation?
- in case of doubt the Case Officer "must" approve or decline the application?
hi jonny, thanks for posting this thread, I am also facing the same issue here. I worked for my employer for 2 years and right now I am on 457 since last 6 months. I am not sure whether I satisfy the two year criteria. Can you please post any update if you get more information about it. Thanks in advance.
 

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Hi,
I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.

Following case:
- currently on a 457 primary since 1 year
-prior, on a subclass 457 as secondary

- worked in the same nominatED position with the nominatING employer for more than 2 years

Does it satisfy the two years requirement?
Immigration agents and the same 131881 provided me with different answers.

I would be happy to have opinions, but most of all, I would like to know the following:
- is there anything on IMMI website and Legislation that specify that a condition has not been met?
- has anyone been in a similar situation?
- in case of doubt the Case Officer "must" approve or decline the application?
Hi Johnny -

Would like to help - just wanted to confirm that the only difference between the two years of employer was that one of the years (the most recent year) you were on your own 457 visa, and for the prior year you were a secondary applicant on someone else's 457. But other than that, same position, same employer, same overall work responsibilities, same location, etc?

Sorry if this seems repetitive, but the law in this area is very specific, especially after DIAC tightened up the 2-year requirements language on 24 Nov 2012.

Thanks for any clarification - as you've seen, there's lots of opinions in this business, but the only ones that matter are the ones that can be 100% confirmed by the language migration law and regulations. The immi website is not considered law or regulations, or even policy, so that's not information you can absolutely depend on, especially you depend on that information and DIAC rules otherwise. Same goes for phone info from DIAC.

Please advise above and I can help further.

Bhushan - to address your query- you mentioned "6 months" - is your situation identical? Ie, only difference in work before 6 months ago was that you were a secondary on someone else's 457 visa?

Please advise - thanks.
 

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Hi Mark,
Thank you so much for the detailed information.
My situation is slightly different because I am single. I am working in the same company since last 2.5 years. First 2 years, i was on student visa and then I got sponsored before 6 months and hence now i am on 457. Just wanted to know whether I can file 186 by considering my total working experience.
Thanks man.
 

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Hi Bhushan -

Thanks for the note. For the ENS (subclass 186) visa Temporary Resident Transitional Stream where it refers to 2 years on a 457 visa, the entire 2 years must be on a 457 for the same nominating employer and the same position, so only the 6 months under the 457 visa would count towards this. Additionally, the work must be full-time, and if you tried to claim full time work under a student visa, you'd be inviting problems as a student visa only allows 40 hours of work per fortnight (previously, 20 hours per week).

Sorry I don't have better news! But the good news is that in 18 months you should be able to apply for the Transitional stream 186 ENS PR visa if you meet the other requirements.
 

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186 Visa

My situation is this I came to OZ in 09 and worked for the same employer until Jan 2012. I left on a Tuesday and started work the following day with a new employer and have now been there over a year.
Therefore I have had nearly four years of continuous employment on two different 457 visas.
I have contacted the migration agent our company uses and she is adamant that even without a skills assessment I can now apply for a 186 visa through the transition scheme.
Is this correct? I have been with my new company for 13 months.
She is a lawyer so I trust she may know something I am missing
 

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@ Johnnyblue,

Might have been answered already, but don't thinkk you will be eligible.
While, you have had thr 457 for 2 years, that is only 1 requirement. Another requirement is that you have been employed on the basis of your 457, for 2 years.

Your original 457 was provided on the basis of someone else's skills and occupation. On the basis of you current 457, then I would assume the occupation, and skills, and assessment was based on your personal skills and experience. I would imagine that's the case.

Hopefully, that can be understood.
 

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My situation is this I came to OZ in 09 and worked for the same employer until Jan 2012. I left on a Tuesday and started work the following day with a new employer and have now been there over a year.
Therefore I have had nearly four years of continuous employment on two different 457 visas.
I have contacted the migration agent our company uses and she is adamant that even without a skills assessment I can now apply for a 186 visa through the transition scheme.
Is this correct? I have been with my new company for 13 months.
She is a lawyer so I trust she may know something I am missing
Your agent isn't correct.
 

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HI Jasp91 -

The company's agent is wrong (no offense!). There was a loophole that allowed this, but it was closed on 24 Nov 2012 with the regulation changes. The 2 years must be in the position (ie, with the current nominating employer) that you have the current 457 on.

Here's the updated reg 5.19(c)(3):

(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Business (Long Stay)) 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 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave);


A careful read reveals that the language "position in respect of which the person holds the Subclass 457..." is current tense - position referring to your current position with your current employer. It does not refer back to other positions held with other employers in any way. the language in (I) allows for 1 or more 457 visas during the 2 years, so the 2 years could be spread among multiple 457 visas for the current employer that add up to 2 years, over a period of 3 years.

The previous regs were not as clear on this, which opened up a bit of a loophole that some people got through. But DIAC figured this out and closed the loophole back in November with the above updated legislation.

Best,

Mark Northam
 

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Unreal

This is plainly ridiculous Mark, I changed jobs because my new employer recognised my skills and wanted me who cares if I haven't worked for two years. I have been in skilled work for nearly four years now and laughably they sold these changes as fast tracking to PR.
surely with such a shortage of engineers somebody would look and say ok give it to him?
 

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Hi Jasp91 -

I agree! If the point of the transitional stream is to provide opportunities to people who are "tested in the Australian job market" (which is what DIAC refers to in regards to this stream), then how is a person any more "tested" if he worked for one employer or 2 or 3 during their time here? If anything a person is MORE "tested" if he's worked for multiple employers at successively higher paid and higher profile positions, in my opinion.

I fear the recent "457 crackdown" by the new Minister (of course, with no details attached as of yet) is only the beginning of a wave of Union pandering anti-immigration stunts we'll see this year leading up to the election in September as the Labor government desperately tries to squeeze votes out at any cost. Our message to clients: get your applications in quickly before it gets any worse.

Wish I had better news - but again, I agree with you 100%.

Best,

Mark Northam
 

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That great then!

Gets even worse then don't really know why I am giving my skills to Australia to be honest. All I want is to get long term stability for my family by commiting to stay in Australia and all they seem to do is reject people who are trying to drive the economy forward. :mad:
 

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Just a though - if you have an employer who is ready and able to sponsor you for an ENS PR visa (186), have you investigated the Direct Entry route? Basic requirements are positive skills assessment, IELTS 6 or better in all bands, 3 years work experience (but doesn't have to be for nominating employer or even in Australia)...?
 

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Yes

Thats my biggest problem Mark I don't have a degree. In the UK I went down the professional route and not the degree route. I have a degree equivalent qualification not recognised by that hopeless Vetassess, therefore that is not an option.
Can a case officer have any common sense and look at cases individually or is it purely black and white?
 

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Hi Jasp91 -

Can you email me your resume/CV at [email protected] - I'm just wondering if there's any alternative way to get the skills assessment visa RPL or another method that looks exclusively at your work experience, and not your degree(s). Would also need to know which ANZSCO occupation code you'd be applying under.

Best,

Mark Northam
 

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Another scenario

Hi all,

I have a similar type query. By June, I'll have worked 2 years for the same employer in the same position. When I started, I was de facto on my partner's 457, and the company sponsored me for my own 457 in November 2011. I am trying to attain whether I'm eligible for the Transition stream in June, given that I will have held the same position with the same employer for 2 years (albeit on 2 different 457's). Can anyone provide an answer for this?

Any help would be extremely appreciated.
 

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Hi Geo -

Can't say conclusively since I have not seen your documents and information, however employment time split over 2 different 457's, assuming same employer, same position should not be a problem. It is not a requirement that all of the 2 years must be on the same, single 457 visa.

Please advise if I can assist further -

Best,

Mark Northam
 
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