visa dilemma, endless sleepless nights. looking for a hope

My husband current holds a subclass 457 visa as a painting trades worker since May 2014. I hold a 457 visa as his dependent.

Unfortunately, his sponsoring company went into liquidation in Dec 2015. Late in Dec, another company submitted a nomination for him.

The department has requested further information about the application from the company in July 2016 and he signed a revised contract. In mid Sep 2016, the company informed him the application has been refused.

We have been told if the IMMI department intends to cancel your visa while you are in AU, they have to inform you. Till now we haven’t receive any notice from the department and current visa status still shows “in-effect” on VEVO.

Meanwhile we are still looking for a company to take over 457 but it’s getting more and more difficult due to the economic slows down.

(1) My Husband, 32 year old, English, work experience as a painter in Ireland and the UK. 4 years painting experience in AU (First 2 years worked on ABN and without tax record.) He doesn’t have any formal qualification from home. In March 2014, he gained his AQF Cert III via RPL. Now he wants to apply for 189 visa or NSW 190 visa but an agent told him that he won’t be able to pass skill assessment because he only has 2 years tax paid record from Ireland and the UK. (Is that true?)

(2) Me, 36 year old, French, occupation: cook, 2 year and 2 months work experience as a cook in AU (Post-qualified exp is 1 year 10 months.) I gained a AQF Cert III through studying. After 2 months, I will be eligible for 187 visa.

(3) My question is that if I apply 187 visa, will IMMI department take action to cancel my 457? Shall I apply for a student visa to avoid a visa cancellation?

Are there any other options for me and my husband?

Please advice. Thanks.

Aderlina

You really need to go and see an agent. Tomorrow. I think you must be very close to being illegal, if you are not already, anagent can clarify your status and help you with a strategy. The reason I would be concerned is that you are in breach of the 457 if you go more than 90 days without u retaking employment on behalf of the sponsoring employer. Forget what VEVO says, it's is wrong half the time. According to VEVO my OH never had a visa at all.

So to your husband, yes people that don't pay tax will find it comes back to bite them when it comes to visas as this employment won't count in any skills assessment or work experience points.

Sounds like you might be the best bet. Can your current employer not apply for a 457 for you? What is the relevance of two months before you think you would be eligible for a 187? I don't think this is the best route anyway because it takes a long time and you are groing to be visaless very soon if not already. I think a 457 with your employer might be best and quickest option.

The other thing that your probably need to start to come to terms with, is that your time in Australia might be coming to an end.

Bungo beat me to it! Talk to an agent tomorrow - on the face of it you are probably an illegal overstayer at the moment so you need to get something sorted because you wouldn't want to face a 3 year ban for that.

Actually we have spoken to more than three migration agents and one lawyer in the past 10 months. Interestingly, we received different answers.

The migration lawyer said it's employer's obligation to inform the department in 28 days once the employment is terminated. Not 457 holder's obligation.

while you are still in AU. The immi must inform visa holder's if they intend to cancel your visa (if you are outside AU, they can cancel your visa without any notice). But when you apply for another visa, they will take action to cancel your 457.

I'm not sure which one is true as I heard too many versions.

Two more months to go because I still work as a cook and hubby has been out of work nearly a year! I need 2 more months work exp then I will have 2 year post-qualification experience which is one of the requirement of 187 visa.

I haven't have a good sleep for nearly a year...457 is a nightmare

Actually we have spoken to more than three migration agents and one lawyer in the past 10 months. Interestingly, we received different answers.

 

The migration lawyer said it's employer's obligation to inform the department in 28 days once the employment is terminated. Not 457 holder's obligation.

while you are still in AU. The immi must inform visa holder's if they intend to cancel your visa (if you are outside AU, they can cancel your visa without any notice). But when you apply for another visa, they will take action to cancel your 457.

 

I'm not sure which one is true as I heard too many versions.

 

Two more months to go because I still work as a cook and hubby has been out of work nearly a year! I need 2 more months work exp then I will have 2 year post-qualification experience which is one of the requirement of 187 visa.

 

I haven't have a good sleep for nearly a year...457 is a nightmare

Maybe go and see a new agent. The ones that post on here all have good reputations, why not try @wrussell.

You have a duty to act within the terms of your visa. You have a duty not to breach it. That your husband has not worked for a year, well then you are almost certainly in breach of it. I would have been having sleepless night for the last year in your position too! Your visa position is very, very serious.

I have no idea where you have heard "when you apply for another visa they will take action to cancel the 457" or in what context you mean this in. But I am pretty sure it is not true and does not help the situation.

You really need to go and see an agent. Tomorrow. I think you must be very close to being illegal, if you are not already, anagent can clarify your status and help you with a strategy. The reason I would be concerned is that you are in breach of the 457 if you go more than 90 days without u retaking employment on behalf of the sponsoring employer. Forget what VEVO says, it's is wrong half the time. According to VEVO my OH never had a visa at all.

 

So to your husband, yes people that don't pay tax will find it comes back to bite them when it comes to visas as this employment won't count in any skills assessment or work experience points.

 

Sounds like you might be the best bet. Can your current employer not apply for a 457 for you? What is the relevance of two months before you think you would be eligible for a 187? I don't think this is the best route anyway because it takes a long time and you are groing to be visaless very soon if not already. I think a 457 with your employer might be best and quickest option.

 

The other thing that your probably need to start to come to terms with, is that your time in Australia might be coming to an end.

Is it not 60 days now?

Is it not 60 days now?

It is. Changed to 60 days last week from 90.

AFAIK, it's changed to 60 days for NEW visa applications. For people who already have a 457, it's still 90 days.

DIBP should contact you to advise you of their intention to cancel your 457 visa. If they haven't cancelled it yet, then you are not in Australia illegally. I agree with the suggestions to meet with a migration agent regarding the best strategy forward. If a 187 visa is a possibility, perhaps you can get that lodged and then if/when DIBP contacts you about the 457 you may be able to convince them to leave the 457 in effect until a decision is made on the 187.

AFAIK, it's changed to 60 days for NEW visa applications. For people who already have a 457, it's still 90 days.

 

DIBP should contact you to advise you of their intention to cancel your 457 visa. If they haven't cancelled it yet, then you are not in Australia illegally. I agree with the suggestions to meet with a migration agent regarding the best strategy forward. If a 187 visa is a possibility, perhaps you can get that lodged and then if/when DIBP contacts you about the 457 you may be able to convince them to leave the 457 in effect until a decision is made on the 187.

You may be right that some people still have 90 days, if so I apologise for duff info, I just went by what was on the page on the Immigration site - I had to check there as I wasn't sure it had been brought in yet, but seems it has. http://www.border.gov.au/Trav/Visa-1/457-

Hello, I feel for you we are on a 457 visa and my husband was made redundant twice last year, he did not work for 5 months in 2015. Luckily he was out of work for less than 90 days each time. My husband is a fully quilified car mechanic.

Have you looked into moving to another state? That's what we ended up doing, we were in Adelaide but have moved to Melbourne a lot more work available here.

Good luck with everything I hope it all works out.

AFAIK, it's changed to 60 days for NEW visa applications. For people who already have a 457, it's still 90 days.

 

DIBP should contact you to advise you of their intention to cancel your 457 visa. If they haven't cancelled it yet, then you are not in Australia illegally. I agree with the suggestions to meet with a migration agent regarding the best strategy forward. If a 187 visa is a possibility, perhaps you can get that lodged and then if/when DIBP contacts you about the 457 you may be able to convince them to leave the 457 in effect until a decision is made on the 187.

It is a condition of the 457 visa that they do not cease work for 60 (or 90) consecutive days. I therefore re cannot share your optimism that they are not flouting any imigration rules, if that is what you are saying. They certainly are.

Seek a reputable agent. Your husband hasn't worked for almost a year? There is a 90 day requirement for him to find a new job willing to sponsor him otherwise the visa will be cancelled. Perhaps it has been already?! You said in July they told you it's been refused, why are you only looking into this now??

As my understanding, 457 visa is based on an employment contract,

Visa holders have duty to act the terms of 457 visa, so does sponsoring empolyer.

By law, the employer has to pay the flights to send us home, and also money for redundancy...etc.

So I guess the employer breach their obligation first...(above is purely my assumption...)

Once you submit another permanent visa other than 457, immigration officer will look into your current 457 employment status...

I'm not 100% sure...maybe there are subtle differences between immigration laws and immigration law practices.

If any one knows the truth, please share. Million thanks.

AFAIK, it's changed to 60 days for NEW visa applications. For people who already have a 457, it's still 90 days.

DIBP should contact you to advise you of their intention to cancel your 457 visa. If they haven't cancelled it yet, then you are not in Australia illegally. I agree with the suggestions to meet with a migration agent regarding the best strategy forward. If a 187 visa is a possibility, perhaps you can get that lodged and then if/when DIBP contacts you about the 457 you may be able to convince them to leave the 457 in effect until a decision is made on the 187.

That's one of migration agents suggests me to do...Thanks

Hi Disney,

We are planing to move interstate at moment. It isn't an easy decision.

The new place need to be beneficial to two of us.

Construction work- around big cities

Cook RSMS- remote area

Does any one have any good ideas? Please advice. Million thanks.

As my understanding, 457 visa is based on an employment contract,

 

Visa holders have duty to act the terms of 457 visa, so does sponsoring empolyer.

 

By law, the employer has to pay the flights to send us home, and also money for redundancy...etc.

 

So I guess the employer breach their obligation first...(above is purely my assumption...)

 

Once you submit another permanent visa other than 457, immigration officer will look into your current 457 employment status...

 

I'm not 100% sure...maybe there are subtle differences between immigration laws and immigration law practices.

 

If any one knows the truth, please share. Million thanks.

You said the employer went into liquidation, a year ago, so they probably do not even exist any more. That they have broken the rules "first" does not mean it is ok for you to breach your visa.

What do you mean by "once you submit another permanent visa other than 457, immigration officer will look into your current 457 employment status"? This sentence makes no sense and whatever you think it means it doesnt change the fact that you are in breach of your visa.

Hi Disney,

 

We are planing to move interstate at moment. It isn't an easy decision.

The new place need to be beneficial to two of us.

Construction work- around big cities

Cook RSMS- remote area

 

Does any one have any good ideas? Please advice. Million thanks.

You need to stop burying your head in the sand. You have a serious visa problem and you need to attend to this not be looking for suggestions for an interstate move.

You have a fairly major problem. From what you have posted you are currently illegal and working illegal. This is generally considered pretty serious by immi and if you apply for a new visa, will result in them being aware of this.

At best, you are facing deportation and a ban from applying for further visas for 3 years. The fact the company didn't notify immi is irrelevant.

I would strongly recomwnd you seek professional advice asap from a good registered migration agent.

As my understanding, 457 visa is based on an employment contract,

 

Visa holders have duty to act the terms of 457 visa, so does sponsoring empolyer.

 

By law, the employer has to pay the flights to send us home, and also money for redundancy...etc.

 

So I guess the employer breach their obligation first...(above is purely my assumption...)

 

Once you submit another permanent visa other than 457, immigration officer will look into your current 457 employment status...

 

I'm not 100% sure...maybe there are subtle differences between immigration laws and immigration law practices.

 

If any one knows the truth, please share. Million thanks.

My understanding is that an employer has to pay for flights home of their choice when you have submitted in writing a request for them within a certain timeframe ( not sure what that is )

My understanding is that an employer has to pay for flights home of their choice when you have submitted in writing a request for them within a certain timeframe ( not sure what that is )[/QUOTe]

If the employer is in liquidation they can't pay for flights. And even if they could, the fact that they hhaven't will not be accepted by DIBP as an excuse for overstaying.

If an employer is in Liquidation then I suppose you'd not be able to force the issue as they have no money and larger creditors would come first I suppose anyway. Sorry I was trying to be general, I wasn't excusing the overstaying or even addressing it but was trying to give information about the flights home and people just assuming they'll get it without applying for it. Sorry if I've confused things.

Some Notes:

To qualify for repatriation, notice must be served on the employer, before a 457 is cancelled.

From what has been posted, it is not clear that there is a way forward.

To preserve some future prospects with immigration it might be best to contact compliance, put the cards on the table and seek permission to work on a bridging visa E; or it might not be.

It might be worthwhile checking whether superannuation amounts have been paid and/or taxation refund is due.