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Employer cant afford me on 457 anymore


lucy xxxx

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Hi there,

 

need urgent advice please on what to do.

my employer has informed me that he cant afford my wages anymore on my current 457 visa and that he is thinking to terminate my employment for that reason. However, he would still like to sponsor me on the 187 visa, which is the permanent one, but this one lets him pay me a lower wage compared to the 457.

Looking at the situation, i could lodge my 187 application now, but until it is approved i would be still on the 457 visa which means my employer would have to still pay me the 457 requested wage ... and that could take at least 6 months or more until the 187 gets decided on.

I really do not want to leave australia and wanted to continue through to permanent residency with my current employer.

 

Any suggestions what would be the best to do?

If my 457 gets cancelled, the n i have 90 days to find a new sponsor.

 

Any tips and advice is appreciated!

 

Thank u

Edited by lucy xxxx
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If you really want to stay in Aus i personally would accept a lower rate until i can find another sponsor or get the other visa. I would be approaching every company i could find in my line of work to see if they would be interested in sponsorship, The White Pages on line will help you with finding places.

Hope you sort something

Cal x

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If you really want to stay I would accept the lower rate that the employer offers, even if the visa situation doesn't get resolved and start looking for another job/sponsor.

 

I wonder whether the subtext to this is that the new rate would be below the minimum threshold for the 457 visa, and hence could not be lowered until the OP has another visa category? Otherwise the advice is sound - put up with it pro tem but find someone prepared to pay better. Advice from a good agent and/or recruitment consultant would appear to be essential.

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Check the going rate at other firms , bottom threshold on 457 is not a high wage , there is a simple way I think he just pays you as you are now on the 457 then deduct the amount after tax for the difference to the rate that he wants to pay while the other visa goes thro .

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Just to clarify some of the above - If your guaranteed earnings are going to drop below the original stated amount, your employer would have to lodge a new 457 nomination or they would no longer be meeting their obligations. The new amount would still have to be above the TSMIT and equal to or greater than the market rate of salary.

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As it stands he's obliged to pay your repatriation costs (usually) so if you go with the other visa but it all goes pear shaped, in what seems a bit of a dodgy process to me, you could still find yourself needing to move back but he will say he isn't paying your fare. Talk to an agent!

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Proceed with caution and obtain appropriate professional advice.

 

The potential issue that I see is that the company would have provided documentation to prove what the Market Rate for your current position is, as part of the 457 application. This market rate would have had to be above TSMIT ($53,900).

 

It is true that there is no TSMIT for the 187, however, you still have to provide evidence to justify the market rate. From the sound of it, this evidence will contradict the market rate evidence provided for the 457.

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Proceed with caution and obtain appropriate professional advice.

 

The potential issue that I see is that the company would have provided documentation to prove what the Market Rate for your current position is, as part of the 457 application. This market rate would have had to be above TSMIT ($53,900).

 

It is true that there is no TSMIT for the 187, however, you still have to provide evidence to justify the market rate. From the sound of it, this evidence will contradict the market rate evidence provided for the 457.

Totally agree. When we applied for the rsms the one thing they questioned was the wages. They have to be at the going rate for that job, even if that is much higher than the TSMIT. You can't just pick and choose a wage. I can't imagine for a second they are going to accept a pay drop.

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Thank you all for the replies and suggestions.

I have just had another meeting with my employer; he said that he wants to keep me working for him, but again stated that he cant afford my wage anymore... I am on 51400$AUS which is the minimum TSMIT for my position on the 457 as restaurant manager. He thinks that it is possible to terminate my employment, in which case we both have to inform immigration i believe, then my visa gets cancelled and i get 90 days to sort something out.

Does anyone know if I could still work in those 90 days? Is it a Bridging visa you get granted from the time of 457 cancellation? Can i apply for work rights due to "financial hardship" etc?

My employer believes that indeed within those 90 days i can then apply for the 187 permanent visa with him and until that visa is then granted, i will remain on the bridging visa and can still work for him under the conditions of the bridging visa. then when the 187 gets approved, he then has to comply with the regulations of the 187.

 

I see restaurant manager positions advertised on employment sites for 40k per year earnings, so does this mean, my employer could pay me 40k per year on the 187 instead the 51400 under the 457 arrangement?

 

any advice is much appreciated.

 

Thank you.

 

Lucy

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Thank you all for the replies and suggestions.

I have just had another meeting with my employer; he said that he wants to keep me working for him, but again stated that he cant afford my wage anymore... I am on 51400$AUS which is the minimum TSMIT for my position on the 457 as restaurant manager. He thinks that it is possible to terminate my employment, in which case we both have to inform immigration i believe, then my visa gets cancelled and i get 90 days to sort something out.

Does anyone know if I could still work in those 90 days? Is it a Bridging visa you get granted from the time of 457 cancellation? Can i apply for work rights due to "financial hardship" etc?

My employer believes that indeed within those 90 days i can then apply for the 187 permanent visa with him and until that visa is then granted, i will remain on the bridging visa and can still work for him under the conditions of the bridging visa. then when the 187 gets approved, he then has to comply with the regulations of the 187.

 

I see restaurant manager positions advertised on employment sites for 40k per year earnings, so does this mean, my employer could pay me 40k per year on the 187 instead the 51400 under the 457 arrangement?

 

any advice is much appreciated.

 

Thank you.

 

Lucy

 

You really need to get some professional advice on this. Get this wrong and apart from anything else, you could fall seriously foul of the immigration authorities.

 

The 90 day clock does not start ticking when you are given notice, but only when you are no longer employed in that capacity on your 457 visa. For example, if you are given notice, but then work, or are given pay in lieu, for say 60 days, the clock does not start until that 60 days ends. Your visa situation and options at that point I am not qualified to comment on - but if you only have a 457, you can't legally work during that period. 457s don't have any recourse to arguments of hardship.

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Just thought I'd add, you can't just stay working on your 457 for less money than agreed. Immigration and the tax office got together last year to check up on 457 holders to make sure they are being paid the agreed rates. You will be breaking your visa conditions if you accept less pay which could affect your applying for future visas.

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Thank you all for the replies and suggestions.

I have just had another meeting with my employer; he said that he wants to keep me working for him, but again stated that he cant afford my wage anymore... I am on 51400$AUS which is the minimum TSMIT for my position on the 457 as restaurant manager. He thinks that it is possible to terminate my employment, in which case we both have to inform immigration i believe, then my visa gets cancelled and i get 90 days to sort something out.

Does anyone know if I could still work in those 90 days? Is it a Bridging visa you get granted from the time of 457 cancellation? Can i apply for work rights due to "financial hardship" etc?”

During this period you are still the holder of a 457 visa and continue to have the same work restrictions. The 90 days is time to find another sponsor to take over your 457 or depart the country. If you use the 90 days to apply for a different visa, it can cause issues if the 457 still has a long time to run.

 

My employer believes that indeed within those 90 days i can then apply for the 187 permanent visa with him and until that visa is then granted, i will remain on the bridging visa and can still work for him under the conditions of the bridging visa. then when the 187 gets approved, he then has to comply with the regulations of the 187.

But you will not be on a bridging visa, you will still hold a subclass 457.

 

I see restaurant manager positions advertised on employment sites for 40k per year earnings, so does this mean, my employer could pay me 40k per year on the 187 instead the 51400 under the 457 arrangement?

Potentially yes, however, as it is the same employer that sponsored your 457, they will have to contradict their previous application which stated that the Market Rate for the position was $51,400.

 

How are they going to make a convincing argument that when they sponsored you for the subclass 457 the Market Rate for the position was $51,400 yet in a short period it has dropped to $40,000?

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