Skilled Visa (190) as a contractor

[jrm]

Hi,I've been on a visa 457 for one and a half year. I work for my employer as a contractor through a contractors agency (who are my sponsor). I always have 6 months work contracts that are renewed every time.Now, Since the 1st july 2013, to apply for permanent residency through ENS, you need to be a permanent employee: "After 1 July 2013 - Employees must now be employed by their sponsor in a direct 'employee-employer' relationship. This prohibits on-hire arrangements that fall outside approved Labour Agreements and prevents sponsors from engaging visa holders under arrangements that resemble independent contracting arrangements."So as I cannot apply for this, then I was thinking about going through the skilled migration program as my job is listed in the SOL and I could probably achieve 65 or 70 points.However, my question is, can I apply for permanent residency under the 190 visa considering I am a contractor and therefore I am not a "permanent employee" to my employer. I couldn't find this information on the immi website.Thanks for the help !Jezz

[Ozmaniac]

I think you probably mean a 189 rather than a 190 (you must have state sponsorship for a 190) but both are points tested visas and you must have a positive skills assessment before you can submit an EOI. The requirements of the skills assessment authority will determine if your work background as a contractor is acceptable. It probably will be, but without knowing your occupation, it's not possible to be any more precise.

[jrm]

Hi and thanks for your reply,

 

Actually I said 190 because I may be able to obtain 5 additional points if a state sponsors me, but I am not sure whether I need this or not. I would obviously prefer the "independent" one (189).

 

My job is listed on the CSOL as "ICT Security Specialist". Do you think working as a contractor is this job is acceptable for a 189/190 application?

 

Thanks,

 

J-

[Ozmaniac]

Ah, that puts a somewhat different complexion on your question.

 

ICT Security Specialist 262112 is not on the SOL so is not eligible for a 189 visa. It is only on the CSOL so is only eligible for state and employer sponsored visas

 

If you don't have employer sponsorship, you will need sponsorship by a state that has it on its state list of occupations. Currently, Victoria, SA and WA have it listed but for WA, a job offer is required, for SA it is listed as 'Special conditions apply' (can be difficult to meet) .Victoria requires you to have a minimum of 3 years experience and at least Proficient English (all 7s) in IELTS - VIC looks like your best bet unless you are already working in WA or SA.

 

You need to see if the ACS will accept your contractor experience for skills assessment purposes and if they do, there's a good chance that a state will also accept it if they have a work experience requirement. Seems to me that you should apply for skills assessment and take it from there.

[jrm]

Hi,Thanks a lot for your answer, it really helps.I can't have employer sponsorship because I am not a permanent employee to my employer (I work as a contractor).I currently live and work in Melbourne (and would like to stay there for now) so does it give me more chances to be nominated by VIC? What if another state nominates me first, would I need to change state and find a new job there?Also what happens if I leave Australia on a state-sponsored visa, does it cancel the visa?Thanks again, sorry for all the questions I really need to make sure where I am going...

[Ozmaniac]

The fact that you're currently living and working in Melbourne will help with getting state sponsorship but you'll still need 3 years experience, all 7s in IELTS, a positive skills assessment and 60 points on the points test.

 

No other state will nominate you if a) your occupation isn't on their list or b) if you don't meet their requirements (e.g. job offer or whatever) or c) if you don't apply to that state (or in the case of WA, if you don't tick the WA box on your EOI).

 

Not sure what you mean by "what happens if I leave Australia on a state-sponsored visa" - do you mean permanently or for a holiday? State sponsored visas allow you to freely enter and leave Australia until your re-entry rights expire after 5 years for a 190. You are supposed to live and work in the sponsoring state for 2 years but that is only a moral obligation and is not a condition of your visa.

[jrm]

Not sure what you mean by "what happens if I leave Australia on a state-sponsored visa" - do you mean permanently or for a holiday? State sponsored visas allow you to freely enter and leave Australia until your re-entry rights expire after 5 years for a 190. You are supposed to live and work in the sponsoring state for 2 years but that is only a moral obligation and is not a condition of your visa.

 

Hi,

 

Yes, that makes sense. So if I leave Australia after, say, 1 year, and I want to come back anytime in the future (after the 5 years), would I need a "Resident return pass" and would that be granted, or could I simply not re-enter the country?

 

Also if my partner wants to be linked to a visa 190 application does she have to undergo an IELTS and skills assessment as well? She works in marketing and her job isn't listed in any list, however, she currently live and works in Australia and has a visa 457 as my partner.

 

Thanks and regards

[Ozmaniac]

Hi,

 

Yes, that makes sense. So if I leave Australia after, say, 1 year, and I want to come back anytime in the future (after the 5 years), would I need a "Resident return pass" and would that be granted, or could I simply not re-enter the country?

 

Also if my partner wants to be linked to a visa 190 application does she have to undergo an IELTS and skills assessment as well? She works in marketing and her job isn't listed in any list, however, she currently live and works in Australia and has a visa 457 as my partner.

 

Thanks and regards

After the 5 years, you must meet certain conditions in order to get a RRV. If you have spent at least 2 out of the 5 years immediately before applying for the RRV in Australia, you will definitely get a 5 year RRV which effectively re-sets your right to enter Australia as a PR for another 5 years. If you have spent less than 2 years in Australia, there is no guarantee that you will get one and any RRV that you do get will only be for 1 year or 3 months. Read the eligibility requirements under Visa applicants > Who could get this visa:

http://www.immi.gov.au/Visas/Pages/155-157.aspx

 

If your partner is eligible to be considered your partner when you apply for the 190, she is simply included as a secondary applicant and no skills assessment is required - her occupation isn't taken into account at all. She would only need IELTS to prove that she has 'Functional English' if she is not from an English speaking country or doesn't meet one of the other non-test requirements.

http://www.immi.gov.au/FAQs/Pages/how-can-i-prove-i-have-functional-english.aspx How can I prove that I have Functional English?

[jrm]

Hi,

 

Thanks heaps for all this valuable information.

 

I'll definitely follow your advice and start with the Skills Assessment.

 

Have a great day!

[Graemsay]

You need to see if the ACS will accept your contractor experience for skills assessment purposes and if they do, there's a good chance that a state will also accept it if they have a work experience requirement. Seems to me that you should apply for skills assessment and take it from there.

 

The ACS accepted my experience as a Java contractor for their assessment. The only risk is that you might have gaps between jobs that a permanent employee wouldn't have, and that might cause problem.

[jrm]

If your partner is eligible to be considered your partner when you apply for the 190, she is simply included as a secondary applicant and no skills assessment is required - her occupation isn't taken into account at all. She would only need IELTS to prove that she has 'Functional English' if she is not from an English speaking country or doesn't meet one of the other non-test requirements.

 

Hi,

 

Sorry to bring back this topic but I need clarification on this - Does my partner need to take the IELTS?

 

Her occupation isn't on any list so we won't be getting more points here. She will simply be included as a secondary applicant. From what I understand from the immi website (http://www.immi.gov.au/Visas/Pages/checklists/190.aspx, bottom of page), she would only need to undertake the exam if she was trying to prove a skilled occupation to get more points? So in our case, she doesn't need to take the exam, is this correct?

 

Thanks and regards,

 

J-

[MaggieMay24]

To avoid paying the secondary application fee, you need to prove she's got Functional English. If she has a passport from an eligible country (UK, Canada, USA, NZ or Ireland), that's all the proof she needs. Otherwise she needs IELTS (or other approved test) or one of the other forms of proof (e.g. # of years post-secondary study, etc.)

[pieter]

The ACS accepted my experience as a Java contractor for their assessment. The only risk is that you might have gaps between jobs that a permanent employee wouldn't have, and that might cause problem.

 

Glad to hear that ACS accepted your contractor experience. I am curious to know which docs (i guess, only, client recommendation letter mentioning time period, total no. of hours OR full time developer and Bank statement) did you attach to prove this contractor experience?

 

Did DIBP or case officer also ask for the docs (if so, which docs) to prove your experience ? What is the status update on your visa process now?

 

I will appreciate you a lot if you can provide details as much as you can.

[Graemsay]

You're resurrecting an old thread here Pieter.

 

I applied for my visa in 2009, and was granted it in 2010. So my memory of what was required is a bit hazy, and the process has probably changed several times since then.

 

I think that I sent the following documents:

 

 

• A copy of the certificate of incorporation for my limited company.
  
• Bank statements.
  
• A statutory declaration that I'd been working as a contractor, and in what capacity.
  
• Letters from all clients covering the period I was contracting, as would be sent for a permanent employee.
  

 

I don't recall them asking me for further proof what I sent. I basically made sure that I'd covered off their requirements as listed on the ACS and Department of Immigration websites.

 

As I said in my old post: Make sure you track your work experience carefully. A contractor is likely to have gaps between jobs that a permanent employee doesn't, and these can bite you. They nearly got me, but I managed to get a last minute IELTS test to get the missing five points.

[pieter]

You're resurrecting an old thread here Pieter.

 

I applied for my visa in 2009, and was granted it in 2010. So my memory of what was required is a bit hazy, and the process has probably changed several times since then.

 

I think that I sent the following documents:

 

 

• A copy of the certificate of incorporation for my limited company.

• Bank statements.

• A statutory declaration that I'd been working as a contractor, and in what capacity.

• Letters from all clients covering the period I was contracting, as would be sent for a permanent employee.

 

I don't recall them asking me for further proof what I sent. I basically made sure that I'd covered off their requirements as listed on the ACS and Department of Immigration websites.

 

As I said in my old post: Make sure you track your work experience carefully. A contractor is likely to have gaps between jobs that a permanent employee doesn't, and these can bite you. They nearly got me, but I managed to get a last minute IELTS test to get the missing five points.

 

 

Thanx a lot for responding back so promptly.

Its really a great news to know you got ur VISA.

 

I am in the same boat and visa processing related to contracting work seems to be same these days too. Can you share your personal email id so i can share some more info there?

 

I am basically having exp working with IT companies and can attach all proof (like salary slips, bank stmt, exp certificate, certificate of job duties).

 

My major concern is how to show freelancer or contracting experience.

I worked from India for a USA based overseas client/company for appx 3 years.

 

Regarding proof:

A. Client is ready to write recommendation letter mentioning

 

1. Pieter worked as a freelance Software Developer during period startdate to enddate and completed appx 15000 hours.

 

OR it should be

Pieter worked as a Software Developer, full time, during period startdate to enddate.

OR it should be

Pieter worked as a freelance Software Developer during period startdate to enddate for appx 30 hours weekly.

 

Or what ?

 

What is the best statement?

 

2. Job duties

 

B. My savingBank statements

 

Questions:

Will this above freelancing or contracting experience be approved by ACS and DIBP both?

Is there any further requirement of docs can happen from DIBP or ACS?

Can DIBP ask for invoices generated? (it is a long time back story and i have no such history now).

Any self-declaration (notarized by govt official) required?

Also, freelancer and contractor are different than self-employed as per ACS.

I have this above experience without having any businesss name.

 

Also, what exactly do you mean by this "They nearly got me," ? What kind of hurdles you faced?

 

 

I will appreciate you a lot if you can shed your light on this and can send me a sample letter too (you sent)....

[Graemsay]

I put my application together in 2009, about seven years ago. I can't recall any details beyond what I put above. I really don't think that I can help you much.

[pieter]

I put my application together in 2009, about seven years ago. I can't recall any details beyond what I put above. I really don't think that I can help you much.

 

Sorry to push you on this but i am unable to find any relevant thread. You are the first person i got to know who have gone thru the same process and granted the visa too..

 

I will really appreciate you a lot if you can try to recall, check your email history etc and can give me some details on this..

 

It will really be a great help.

[Graemsay]

I think that the letters from my former clients had the format:

 

Graemsay worked as a software developer on a full-time basis between [start date] and [end date]. His duties included [iT stuff].

 

It's not complicated, all you need is a basic statement of who you worked for and how long. It's really nothing complicated, and I believe the ACS gives guidelines on their website for what they require.

 

I think that I might have sent a bank statement from the period to prove I got paid, and possibly an invoice or receipt. If you've got something that helps make a case then send it, but you don't need to prove you were paid for every month you worked there.

 

I don't think that the ACS or Department of Immigration cares how you were employed. I submitted five or six years of contracting experience, and there weren't any issues.

 

The problem I ran into was that I'd miscalculated recent experience. I'd applied during the financial crisis, and work had been a bit tight in the year or so beforehand, as in there wasn't much, so I was a month or so short of the requirements for five points that I needed for the visa class I wanted. I had an understanding CO, and a sponsorship letter from Victoria, but a last minute IELTS test meant I got "upgraded" to one that would allow me to work anywhere.

[pieter]

I think that the letters from my former clients had the format:

 

Graemsay worked as a software developer on a full-time basis between [start date] and [end date]. His duties included [iT stuff].

 

It's not complicated, all you need is a basic statement of who you worked for and how long. It's really nothing complicated, and I believe the ACS gives guidelines on their website for what they require.

 

I think that I might have sent a bank statement from the period to prove I got paid, and possibly an invoice or receipt. If you've got something that helps make a case then send it, but you don't need to prove you were paid for every month you worked there.

 

I don't think that the ACS or Department of Immigration cares how you were employed. I submitted five or six years of contracting experience, and there weren't any issues.

 

The problem I ran into was that I'd miscalculated recent experience. I'd applied during the financial crisis, and work had been a bit tight in the year or so beforehand, as in there wasn't much, so I was a month or so short of the requirements for five points that I needed for the visa class I wanted. I had an understanding CO, and a sponsorship letter from Victoria, but a last minute IELTS test meant I got "upgraded" to one that would allow me to work anywhere.

 

 

Thanx a lot for so detailed message.

So does it mean you presented yourself full time employee or contractor or freelancer ? did you mention any wording like this in any document?

I am sure my client will write me recommendation letter and i have bank statement.. But no invoices or receipt.. Will it create a problem?

Did you submit any self-declaration or affidavit to prove you worked as a contractor/freelancer or for this client?

[Graemsay]

I worked full-time (i.e. 40 hours a week), and so presented myself that way.

 

There shouldn't be a difference between being a permanent employee or a contractor as far as the assessment goes. What your case officer wants to know is that you worked full-time or part time.

 

If you don't have any bank statements or invoices then put in a statutory declaration that these have been lost.

 

Really, it's not that difficult. Look at what's written on the website, and if you have any questions then email the ACS for clarification.

[pieter]

I worked full-time (i.e. 40 hours a week), and so presented myself that way.

 

There shouldn't be a difference between being a permanent employee or a contractor as far as the assessment goes. What your case officer wants to know is that you worked full-time or part time.

 

If you don't have any bank statements or invoices then put in a statutory declaration that these have been lost.

 

Really, it's not that difficult. Look at what's written on the website, and if you have any questions then email the ACS for clarification.

 

 

Yea i appreciate you a lot for responding..

I came to know ACS approval can be rejected by DIBP at later stage.

 

This is what ACS mentions, which is bit confusing to cover no. of hours,:

 

"Freelance experience is when you are a contractor or sole trader. In this circumstance applicants will need to provide statements from clients with details and dates of the work performed. These statements should cover the entirety of the experience claimed and include hours worked. The statements should be on the company letterhead of the business that employed your services."

 

It means if i mention 'no. of hours' , then it is a freelance experience, thus can not not mention 'Fulltime'.

If i mention 'fulltime', means i am not contractor but a full time employee. and full time employee means a salaried person every month.

[Graemsay]

You're getting confused by your use of terms, and how the ACS is using them.

 

The ACS considers full-time work to be 35 or 40 hours a week of paid employment. It doesn't matter if you're a contractor, temp, freelancer or permanent employee.

 

What you're considering to be full-time is what I'd call a permanent employee.

 

If you get a statement from your previous employer / client along these lines, then you should be fine:

 

Pieter worked for 40 hours a week between [starting date] and [end date]. His duties included...

 

For assessment purposes your experience will then be treated as full-time, which is what you want.