457 to Partner Sponsor PR 820/801 - hard situation with baby now - Page 2

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457 to Partner Sponsor PR 820/801 - hard situation with baby now - Page 2


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  #11 (permalink)  
Old 11-04-2013, 06:45 AM
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DIAC is notorious for giving incorrect advice. The information I posted above has been posted by multiple registered migration agents on this site and others. I would be very, very wary about trusting that, Dayvt. Everything I've read says that when you become unemployed on your 457 and cannot find another sponsor you are breaching the conditions of that visa, your BVA gets cancelled and your only option is a Bridging Visa E (with all the problems that come with that, as it's for people who are not in the country on a valid visa) until your partner visa is granted. Use caution.

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  #12 (permalink)  
Old 11-04-2013, 08:11 AM
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Hi All -

Great questions. DIBP has been known to be very flexible re: cancellation of 457 visas when there is a pending permanent visa application involved. In this case, with a child involved, there is every reason to believe that they would simply "sit" on the 457 and not cancel it, awaiting the partner visa result. Cancellation takes months and months to do, and can be appealed as well to the MRT, so I think DIBP sees the "writing on the wall" and, as long as they're convinced that a partner visa application is genuine and not a gimmick to stall the migration process, will hold off cancellation pending the 820 decision.

As the note points out, while they "sit" on the 457, you cannot work other than for a sponsoring employer, so your working ability would be impaired in that way until the partner visa is decided.

The voluntary cancellation process written about here is another solution, but comes at a price. The BV-E comes with no work rights by default, leaving you to apply for them. And, since you are unlawful for a short amount of time, any time spent in Australia prior to that no longer is eligible for the residency requirement for citizenship as you must be lawful for 4 years (continuously) for the time you're in Australia to meet that requirement. And if you leave on a BV-E, the BV-E ceases as soon as you leave the country and you're left with no way to get back in until the partner visa is granted, as leaving on a BV-E attracts a 3-year exclusion period on all temporary visa applications (ie, visitor, student, 457).

So these are generally the options people face - in my opinion, DIBP should allow someone in this situation a graceful exit to their 457 (or student) visa, and let them be willing to accept the BV-A and its limitations for the period. Unfortunately the legal framework for these visas does not allow such an "exit", leaving the applicant to face expiry at the end date of the visa, replacement by the new visa once the decision is made, or voluntary cancellation and the BV-E penalty.

Hope this helps -

Best,

Mark Northam

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  #13 (permalink)  
Old 11-04-2013, 08:48 AM
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Originally Posted by MarkNortham View Post
Hi All -

Great questions. DIBP has been known to be very flexible re: cancellation of 457 visas when there is a pending permanent visa application involved. In this case, with a child involved, there is every reason to believe that they would simply "sit" on the 457 and not cancel it, awaiting the partner visa result. Cancellation takes months and months to do, and can be appealed as well to the MRT, so I think DIBP sees the "writing on the wall" and, as long as they're convinced that a partner visa application is genuine and not a gimmick to stall the migration process, will hold off cancellation pending the 820 decision.

As the note points out, while they "sit" on the 457, you cannot work other than for a sponsoring employer, so your working ability would be impaired in that way until the partner visa is decided.

The voluntary cancellation process written about here is another solution, but comes at a price. The BV-E comes with no work rights by default, leaving you to apply for them. And, since you are unlawful for a short amount of time, any time spent in Australia prior to that no longer is eligible for the residency requirement for citizenship as you must be lawful for 4 years (continuously) for the time you're in Australia to meet that requirement. And if you leave on a BV-E, the BV-E ceases as soon as you leave the country and you're left with no way to get back in until the partner visa is granted, as leaving on a BV-E attracts a 3-year exclusion period on all temporary visa applications (ie, visitor, student, 457).

So these are generally the options people face - in my opinion, DIBP should allow someone in this situation a graceful exit to their 457 (or student) visa, and let them be willing to accept the BV-A and its limitations for the period. Unfortunately the legal framework for these visas does not allow such an "exit", leaving the applicant to face expiry at the end date of the visa, replacement by the new visa once the decision is made, or voluntary cancellation and the BV-E penalty.

Hope this helps -

Best,

Mark Northam
Thanks Mark.

Yes, on follow up, i was seeking a way to be allowed to work...i received the following (i've blanked out a few bits): -

"You have enquired about cancellation of your subclass 457 visa in order to work pending a decision being made on your Subclass 820 visa application.

Departmental records confirm that you have applied for a subclass 820 visa on XX/09/2013. A Bridging Visa A (BVA) was also granted to you on XX/09/2013. This bridging visa remains ‘out of effect’ and would not come into effect unless your current 457 visa ceases, and this is not due to occur until XX/XX/2015. The BVA retains the same ‘8107’ condition that is attached to your 457 visa. Therefore, you can only work for your former sponsor. If the 457 visa is cancelled any bridging visas granted to you will cease at the time the visa is cancelled.

The department was advised on the XX/XX/2013 that you ceased employment with your sponsor XXXXXXXXX on the XX/XX/2013. This means the grounds exist for the department to cancel your 457 visa however, as you have applied for an 820 visa, you may remain on your current 457 visa until a decision is made on your 820 visa application. You can travel offshore on your current visa and apply for other visas if you wish to do so.

As mentioned above, if your 457 visa is cancelled, the BVA will cease and you will become an unlawful non-citizen. You would be required to apply, in person, for a Bridging Visa E (BVE) to remain lawfully in Australia until a decision is made on your 820 visa application.

The BVE granted to you will have condition ‘8101’ (no work) attached. You may request work rights by completing Form 1005 (Application for a bridging Visa) to have the ‘8101’ visa condition removed from your BVE. You will need to demonstrate financial hardship and a compelling need to work. This decision will be made by a compliance officer.

IMPORTANT

Please note the following consequences of visa cancellation:

You will be unable to lodge further applications for most visas while you remain in Australia.
Your visa status will become ‘unlawful’ and you must immediately apply for a BVE. Note that there is exclusion periods applicable to unlawful non-citizens who do not rectify their visa status within a specific time.
The BVE does not contain a return-travel facility. If you wanted to leave Australia on a BVE, you would need to apply for a new visa offshore to allow return travel to Australia.
You cannot apply for Australian Citizenship for four (4) years, as the requirement of s22(1)(b) of the Australia Citizenship Act 2007 (the Citizenship Act) is that a person must not be an unlawful non-citizen at any time during the period four (4) years immediately before the date of applying for citizenship.

To clarify each of the consequences -

If the 820 visa application is refused, then the visa options open to you are severely limited and you would more than likely have to depart Australia. Conversely, if you still hold your 457 visa then you can reapply for another type of visa subclass.
Generally you'll need to come into the office to have your visa cancelled, you will then be granted a BVE by the compliance unit - this shouldn't result in an exclusion period. Unlike the 457 visa, you can apply for the work restriction to be removed from the BVE.
820 visa applications can take anywhere from six to twelve months. If you are intending to travel offshore during this period you would be unable to return to Australia without applying for a new visa (which more than likely wouldn't have work rights attached to it - eg a tourist visa). Your current 457 visa has an unlimited travel authority attached to it.
If gaining citizenship as soon as possible is important to you then the cancelling of his 457 visa will delay your eligibility.

Given the above information, please confirm via return email if you want your 457 visa to be cancelled."

I hope this helps people.

I have decided to stay on a 457 and seek a sponsored job, which is proving hard right now given the current climate in my sector.


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  #14 (permalink)  
Old 11-04-2013, 10:12 AM
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Interesting they warn that "you would more than likely have to depart Australia." which seems to ignore the legal right you would have to an MRT review. This is inaccurate information at best, and makes a wild presumption that whatever reason might be given for refusal would not be successful at the MRT.

Sounds like you've made the right choice for you, but this kind of incomplete/inaccurate information really frustrates me (the quote above from DIBP).

Best,

Mark Northam

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  #15 (permalink)  
Old 11-04-2013, 04:55 PM
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Mark, great information as usual. I am surprised (but glad) to read that they will just "sit" on the 457 cancellation, as I was so sure I had read multiple places that it's problematic.

So if someone on a 457 quits their job because they don't want to work for their employer anymore, after already having applied for a partner visa, there is no consequence to that? Their 457 remains valid and they can just take however long they need to to find another employer to work for? If I'm understanding you correctly, that's so great.

And you mentioned student visas - does it work the same way there as well? Someone can just stop studying, and again - there's no problem with that? They just have to continue to abide by the work restrictions of their student visa?

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Visa #1: PMV (300) through Washington, D.C
Applied: April 2013.
Visa Granted: January 2014.
Visa #2: Subclass 820 (From PMV).
Applied: End of April 2014.
Visa Granted: Early July 2014.
Visa #3: 801 (PR)
Eligibility Date: End of April 2016 (Applied a month prior).
PR Granted: Early April 2017.

  #16 (permalink)  
Old 11-25-2013, 02:16 AM
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This is interesting information. I had not heard of this happening before. I am in a similar situation in that I have applied for an 820 and I am currently on a 457. I would like to leave my job and potentially travel for a while whilst I wait for my 820 to be granted but I didn't think this would be possible as BVE wouldn't have allowed me to travel, plus I did not want to interrupt my citizenship qualification time.

Mark, in your professional opinion how 'safe' do you think it is to assume that they will allow the 457 to run in all cases. Is it more of a discretionary thing depending on the situation and officer that looks at the case?

Its a hard call to make as if I take the chance and quit my job and they don't allow the 457 to run then I have just willingly taken away my ability to stay in the country beyond 90 days.

Any advice would be appreciated.

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Old 11-25-2013, 02:36 AM
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Hi Sophey -

It's a discretionary thing, and would depend on how long is left to run on the 457 too I would think. If you're able to speak to someone in the 457 section and get their name, and they are willing to commit to letting the 457 run as long as you don't breach the visa conditions (ie, as long as you don't work for a non-sponsoring employer), you're probably reasonably safe with that. But it would require putting together a good relationship with the 457 case officer who you deal with once they are informed that you are no longer working if that's the case.

Hope this helps -

Best,

Mark Northam

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  #18 (permalink)  
Old 11-25-2013, 02:47 AM
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Hi Sophey -

It's a discretionary thing, and would depend on how long is left to run on the 457 too I would think. If you're able to speak to someone in the 457 section and get their name, and they are willing to commit to letting the 457 run as long as you don't breach the visa conditions (ie, as long as you don't work for a non-sponsoring employer), you're probably reasonably safe with that. But it would require putting together a good relationship with the 457 case officer who you deal with once they are informed that you are no longer working if that's the case.

Hope this helps -

Best,

Mark Northam
Thanks for the quick response Mark. I have 20 months remaining on my 457 visa at the moment.

I will try and get in contact with someone in the 457 department and see what they say.

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  #19 (permalink)  
Old 11-25-2013, 03:02 AM
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Originally Posted by Dayvt View Post
Thanks Mark.

Yes, on follow up, i was seeking a way to be allowed to work...i received the following (i've blanked out a few bits): -

"You have enquired about cancellation of your subclass 457 visa in order to work pending a decision being made on your Subclass 820 visa application.

Departmental records confirm that you have applied for a subclass 820 visa on XX/09/2013. A Bridging Visa A (BVA) was also granted to you on XX/09/2013. This bridging visa remains ‘out of effect’ and would not come into effect unless your current 457 visa ceases, and this is not due to occur until XX/XX/2015. The BVA retains the same ‘8107’ condition that is attached to your 457 visa. Therefore, you can only work for your former sponsor. If the 457 visa is cancelled any bridging visas granted to you will cease at the time the visa is cancelled.

The department was advised on the XX/XX/2013 that you ceased employment with your sponsor XXXXXXXXX on the XX/XX/2013. This means the grounds exist for the department to cancel your 457 visa however, as you have applied for an 820 visa, you may remain on your current 457 visa until a decision is made on your 820 visa application. You can travel offshore on your current visa and apply for other visas if you wish to do so.

As mentioned above, if your 457 visa is cancelled, the BVA will cease and you will become an unlawful non-citizen. You would be required to apply, in person, for a Bridging Visa E (BVE) to remain lawfully in Australia until a decision is made on your 820 visa application.

The BVE granted to you will have condition ‘8101’ (no work) attached. You may request work rights by completing Form 1005 (Application for a bridging Visa) to have the ‘8101’ visa condition removed from your BVE. You will need to demonstrate financial hardship and a compelling need to work. This decision will be made by a compliance officer.

IMPORTANT

Please note the following consequences of visa cancellation:

You will be unable to lodge further applications for most visas while you remain in Australia.
Your visa status will become ‘unlawful’ and you must immediately apply for a BVE. Note that there is exclusion periods applicable to unlawful non-citizens who do not rectify their visa status within a specific time.
The BVE does not contain a return-travel facility. If you wanted to leave Australia on a BVE, you would need to apply for a new visa offshore to allow return travel to Australia.
You cannot apply for Australian Citizenship for four (4) years, as the requirement of s22(1)(b) of the Australia Citizenship Act 2007 (the Citizenship Act) is that a person must not be an unlawful non-citizen at any time during the period four (4) years immediately before the date of applying for citizenship.

To clarify each of the consequences -

If the 820 visa application is refused, then the visa options open to you are severely limited and you would more than likely have to depart Australia. Conversely, if you still hold your 457 visa then you can reapply for another type of visa subclass.
Generally you'll need to come into the office to have your visa cancelled, you will then be granted a BVE by the compliance unit - this shouldn't result in an exclusion period. Unlike the 457 visa, you can apply for the work restriction to be removed from the BVE.
820 visa applications can take anywhere from six to twelve months. If you are intending to travel offshore during this period you would be unable to return to Australia without applying for a new visa (which more than likely wouldn't have work rights attached to it - eg a tourist visa). Your current 457 visa has an unlimited travel authority attached to it.
If gaining citizenship as soon as possible is important to you then the cancelling of his 457 visa will delay your eligibility.

Given the above information, please confirm via return email if you want your 457 visa to be cancelled."

I hope this helps people.

I have decided to stay on a 457 and seek a sponsored job, which is proving hard right now given the current climate in my sector.
Dayvt - Did you contact DIBP about your 457 and ask if they could make any allowances for you or did they just send you that email when they found out you had ceased employment?

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  #20 (permalink)  
Old 11-25-2013, 07:08 AM
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Dayvt - Did you contact DIBP about your 457 and ask if they could make any allowances for you or did they just send you that email when they found out you had ceased employment?
Reply below....
Your query is primarily a matter for the Partner visa section, as the relevant matter at hand is whether you are onshore for the grant of the Partner visa.
*
The 457 Cancellations Unit take a flexible approach in these matters and will usually allow a reasonable amount of time for a 457 visa holder to stay onshore until they get the Partner visa. In your case, it will not matter whether you return to Australia on a Visitor visa or the 457 visa in order to get the Partner visa granted.
*
That said, the department’s current position of being flexible in such matters remains in place, and without being able to give you an official guarantee, I would think that it is unlikely that we will be pursuing cancellation at this stage. If your visa did happened to be cancelled while you were overseas, you could simply apply for a Visitor visa online, free of charge. There is no exclusion period for having your visa cancelled under these grounds.
*

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