186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary?

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186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary?


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Old 10-05-2012, 04:31 PM
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186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary?

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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Old 01-07-2013, 06:25 AM
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Quote:
Originally Posted by JohnnyBlue View Post
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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Old 01-07-2013, 08:44 AM
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Quote:
Originally Posted by JohnnyBlue View Post
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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Old 01-07-2013, 09:47 AM
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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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Old 01-07-2013, 10:08 AM
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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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Old 01-07-2013, 10:47 AM
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No worries Mark. Really appreciate your prompt response and guidelines. Everything is now clear and does make sense.
Have great day ahead mate.


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Old 02-25-2013, 08:57 AM
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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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Old 02-25-2013, 10:52 AM
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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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Old 02-25-2013, 10:53 AM
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Quote:
Originally Posted by jasp91 View Post
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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Last edited by Ausstart National; 02-25-2013 at 11:23 AM.

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Old 02-25-2013, 11:27 AM
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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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Last edited by MarkNortham; 02-25-2013 at 11:51 AM.

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