186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary? - Page 3

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186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary? - Page 3


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  #21 (permalink)  
Old 04-17-2013, 03:03 AM
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Thanks Mark - just very cautious, as I don't want to be declined on a technicality. As I wasn't the primary holder on the first a subclass 457, I thought it may pose an issue, but the wording I find on the DIAC website states: "The Temporary Residence Transition stream is for subclass 457 visa holders
who have worked with an Australian employer for at least the last 2 years in
the nominated occupation and their employer wants to offer them a permanent
position in the same occupation." - From this, I would say that I qualify, as there's been no gaps in my employment, and no change to my role; the only difference is that I went from being a secondary 457 holder to a first....

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Old 04-17-2013, 05:15 AM
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Hi Geo -

Your situation is a bit unusual as you were the secondary applicant on the 457(s) that were qualifying.

Here's a question - when you were working for the employer that will sponsor you for the ENS, did that employer have a valid SBS "nomination" for your position? Or were you employed directly, without a nomination?

Thanks,

Mark Northam

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  #23 (permalink)  
Old 04-17-2013, 05:30 AM
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Hi Mark,

I'm still working for the same employer in the same position, and I was hired directly by them in June 2011 for the position with no sponsorship arrangement in place (as it wasn't required, given my status as a secondary 457 holder).

It is one of those situations that's difficulty to obtain clarity on... and the DIAC aren't much help either.


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  #24 (permalink)  
Old 04-30-2013, 08:59 AM
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Quote:
Originally Posted by MarkNortham View Post
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.
Hi Mark,

bad news

CO told me at 2pm that on his computer it shows that I have been on a 457 on this position for less than two years, and therefore my nomination will be rejected (together with my application). He told me he will give me 7 days of time to withdraw them as I can still get a "clean" record.

My understandng is that my alternatives are the Migration Tribunal ($+1500 + Migration Agent costs) or withdral my application so that my nomination fee ($540) will be refunded but I will still lose the $3050 from the application.

I do not think I can get a refund for the application: I could try to convince them that I lodged it incorrectly, and I wanted to use the "direct stream entry" but I am not sure that would work. I have only an email from Diac 2 days after I lodged the application (4 Oct 2012) with a link to the form 1023. On the phone they were suggesting me to use the correction form 1023 or to speak with the CO in regard to my concerns over the VISA.
But this is not possible anymore.


  #25 (permalink)  
Old 07-05-2013, 01:41 AM
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Quote:
Originally Posted by geo_85 View Post
Hi Mark,

I'm still working for the same employer in the same position, and I was hired directly by them in June 2011 for the position with no sponsorship arrangement in place (as it wasn't required, given my status as a secondary 457 holder).

It is one of those situations that's difficulty to obtain clarity on... and the DIAC aren't much help either.
Hi I am in the same situation! I worked for the same company under a 457 as secondary applicant for 2 years then my company sponsored me so now I am the main applicant of a 457.

According to the regulation (comlaw.gov.au/Details/F2013C00428/Html/Volume_3#_Toc360432122 )
I have to have been on a 457 for 2 years (checked)
I have to be the main applicant of a 457 at the time of the application (checked)
I have to have worked in the nominated occupation for 2 years (checked)
I have to have worked for my company for 2 years in the last 3 years (checked)

However I have been told that I have to have been the MAIN applicant of the 457 for 2 years prior the application.
Because English is not my first language, can you please tell me in the regulation where it states that?

MIGRATION REGULATIONS 1994 - REG 5.19
Approval of nominated positions (employer nomination)

(1) A person (a nominator ) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2) The application must:

(a) be made in accordance with approved form 1395; and

(b) be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii) identifies an occupation, in relation to the position, that:

(A) is listed in ANZSCO; and

(B) has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and

(b) the nominator:

(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii) is actively and lawfully operating a business in Australia; and

(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 (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);

(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 (Business (Long Stay)) 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 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d) for a person to whom subparagraph (c) (i) applies:

(i) the person will be employed on a full-time basis in the position for at least 2 years; and

(ii) the terms and conditions of the person's employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) the nominator has met the training requirements that the nominator was required to meet under:

(i) paragraph 2.59 (d) or (e); or

(ii) paragraph 1.20D (2) (c);

for the purpose of approval as a standard business sponsor; and

Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

(g) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.


  #26 (permalink)  
Old 07-23-2013, 11:24 AM
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Question on PR

Can anyone answer a question please. I have a friend who has been in Australia for 4 years and has recently renewed his 457 visa.

However the new visa has a different occupation than the first one, will this cause a problem when applying for PR in October? He will have been with his current employer for 2 years at that point (Oct).


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Old 07-23-2013, 11:44 AM
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Hi Jasp91 -

Unless he has been working for 2 years with the current employer for the same position (and that position is the same as on the 457 visa he's been working under during this time), would strongly suggest he consult a migration agent on this one - the progression of his employment and details of his position(s) will need to be looked at carefully to see if the case can be made that he meets the regulations.

Best,

Mark Northam

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  #28 (permalink)  
Old 08-12-2013, 11:11 PM
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Quote:
Originally Posted by geo_85 View Post
Thanks Mark - just very cautious, as I don't want to be declined on a technicality. As I wasn't the primary holder on the first a subclass 457, I thought it may pose an issue, but the wording I find on the DIAC website states: "The Temporary Residence Transition stream is for subclass 457 visa holders
who have worked with an Australian employer for at least the last 2 years in
the nominated occupation and their employer wants to offer them a permanent
position in the same occupation." - From this, I would say that I qualify, as there's been no gaps in my employment, and no change to my role; the only difference is that I went from being a secondary 457 holder to a first....
hii mate
i am in same story like you.
Hii
I am on 457 visa from 10 dec 2011 on pre press trade person. But now on 1 June 2013 my employer is bankrupt. Court sell all machines by auction. So 1 other company who buy some machines from there sponsor me for same role. So now my question is am i eligible for 186 visa in dec 2013? My new employer is ready for sponsor me for 186 visa.
whats the posstion on ur ENS 186? is you lodge your file?
waiting for rep.
Regards


  #29 (permalink)  
Old 08-13-2013, 02:40 AM
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Hi Pawandhir -

Assuming the new employer did not take over the old business and ABN of your previous sponsor, the time you put in working for the old sponsor would not count towards the 2 year requirement for the temporary residence transitional pathway for the ENS visa. Your new employer could look at sponsoring you for the Direct Entry pathway for the ENS visa if you qualified for this - primary requirements on the applicant side are 3 years work experience in the nominated occupation (for any employer), IELTS 6 or better on all bands of the test, and a positive skills assessment.

Please advise if I can assist any further with this -

Best,

Mark Northam

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LLB, GradDipLaw, GradCertMigrLaw, BBA(Acctg) MARN 1175508
Northam Lawyers http://nlaw.com.au [email protected]
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  #30 (permalink)  
Old 08-15-2013, 02:31 PM
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Quote:
Originally Posted by MarkNortham View Post
Hi Pawandhir -

Assuming the new employer did not take over the old business and ABN of your previous sponsor, the time you put in working for the old sponsor would not count towards the 2 year requirement for the temporary residence transitional pathway for the ENS visa. Your new employer could look at sponsoring you for the Direct Entry pathway for the ENS visa if you qualified for this - primary requirements on the applicant side are 3 years work experience in the nominated occupation (for any employer), IELTS 6 or better on all bands of the test, and a positive skills assessment.

Please advise if I can assist any further with this -

Best,

Mark Northam
Thanx Mark
Is any good news coming after election? I m also trying to get 6 each in IELTS. My 3 years also complete on 14 dec 2013 and same day 2 years complete under 457 visa. Is any other way for get PR without 6 each? Like pay something to immigration or through MRT??


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