186 Application - Help - unsure if I'm eligible

[Montys Beard]

Hi all,

 

Apologies if this post isn't in the correct area, I'm a newbie.

 

I've been in touch with a Migration agent today to get the ball rolling on my 186 application, I transferred to Australia to start my companies office here on 20th November 2013, so I've completed more than my two years.

 

The new agent (highly recommender by a friend) advised If I could send through my contract etc, I got in touch with the agent my company used to send me over and they sent me back my contract but advised the following:

 

"Happy New Year, .

 

As Christine is still on leave, I reply to your email on her behalf.

 

I have enclosed your employment contract with *Employer* Ltd dated 3 August 2013. Would you remember when you arrived in Australia after being granted your current subclass 457 visa?

 

You were the first overseas employee of Employer in Australia, before Employer Au Pty Ltd commenced its business operations. This is why we used Employer Ltd to sponsor you for a subclass 457 temporary work visa.

 

For your permanent residence application (ie visa subclass 186), we will have to use Employer Au Pty Ltd because only Australian businesses can nominate an overseas person for a subclass 186 visa. Please advise if you are the best person within Employer Au Pty Ltd we can liaise with in relation to your PR application.

 

Thanks"

 

This all seemed quite simple, that I was sent out by my UK company before the Australian arm was established, she said it would not be a problem as it was the same entity.

 

However when I took this back to the new agent I was dealing with she informed me (and gave me the legislation) and said that this was not in fact the case:

 

"Further on from our telephone discussion.

 

To confirm you advised me you are currently sponsored by the overseas entity (UK) – so you are sponsored by an overseas business sponsor (OBS) – not an Australian entity.

 

An approved overseas business sponsor (OBS) cannot sponsor for permanent residency see below – only an Australian entity can sponsor for permanent residency – see below:

 

[h=4]The nominator is actively and lawfully operating in Australia[/h]Regulation 5.19(3)(b)(ii) requires the nominator to be actively and lawfully operating a business in Australia. An overseas business may be approved as a standard business sponsor for the purposes of sponsoring an overseas worker to fulfil a contractual obligation in Australia or to establish a business operation in Australia with overseas connections. Although such businesses may have a UC-457 visa holder working for them who would otherwise qualify for the Temporary Residence Transition stream, the nomination cannot be approved because the nominator does not operate a business in Australia. If an overseas business sponsor establishes a business operation in Australia and wants the UC-457 visa holder to remain in Australia, the Australian business should apply to be a standard business sponsor and have a nomination approved to transfer the UC-457 visa holder to their business. The Australian business can then nominate the UC-457 visa holder under the Temporary Residence Transition stream. For related policy refer to Nominator's business is actively and lawfully operating in Australia.

Regulation 5.19(3)(b)(iii) requires the nominator, in their approval as a standard business sponsor, not to have met regulation 2.59(h), regulation 2.68(i) or regulation 1.20DA in their most recent approval as a standard business sponsor. A nominator who met these specific provisions in their approval for standard business sponsorship is considered to be a business that is lawfully operating outside Australia, but not lawfully operating in Australia.

 

 

In order to meet the requirement for the temporary residence transition stream we need to evidence you have worked full time in your nominated occupation for the sponsoring employer, for a period of 2 years as the holder of a 457 visa.

 

Your current sponsor is the overseas entity, your sponsor for permanent residency has to be the Australian entity – therefore in the first instance the Australian entity would need to be approved as a standard business sponsor, transfer your visa over and then the Australian entity would need to sponsor you for permanent residency but we still need to evidence 2 years of full time employment in the occupation in the last 3 years as the holder of a 457 visa. I have highlighted where it specifically states that time spent employed by an overseas business sponsor cannot be used towards the 2 yhears employment – see below:

[h=4]Employment for 2 years in the 3 years immediately before the nomination[/h][h=5]OverviewRegulation 5.19(3)©(i)(A)(ii) requires the UC-457 visa holder to have been employed in the position in relation to which they hold the UC-457 visa for a total period of at least 2 years (not including unpaid leave) in the 3 year period immediately before the lodging of the nomination. The position is linked to aparticular role with a particular employer in a specified location. For more information, refer to:[/h]· Employment in the same role

· Employment with the same employer and

· Employment in the same location.

Regulation 5.19(3)©(i)(B) requires the 2 years of employment to have been full-time and to have been undertaken in Australia.

The requirement to have been employed for a total of at least 2 years with the nominator does not require the nominee to have held the same UC-457 visa throughout that period. It is possible that the nominee:

· previously held a UC-457 visa (under the sponsorship of the nominator) that ceased within the 2 year period and

· would therefore have applied for and been granted a new UC-457 visa under the same sponsorship.

In this scenario, the eligible period spent on both UC-457 visas and the time (if any) spent in between on a bridging visa would be counted towards meeting the 2 year requirement.

Time spent working with an overseas business sponsor (OBS) cannot count towards the 2 year requirement. This is because an OBS that does not have a registered entity lawfully and actively operating in Australia cannot qualify as a SBS for the purpose of the UC-457 visa program.

Time spent working for the contracting company under an on-hire arrangement cannot count towards the 2 year requirement when the contracting company becomes a SBS in their own right. The TRT pathway stream requires the nominator to be the SBS that last identified the holder of the UC-457 visa in an approved nomination. On-hire entities are prevented (refer to Impact on on-hire entities) from participating in the program under the Temporary Residence Transition stream.

 

 

So I'm now confused, one agent is saying I can apply through the Australian arm of the company (which I thought I worked for up until today!) and the other is saying I can't. Can anybody clarify what the go is? To be honest I'm pretty gutted, I've been aiminf for PR for two years and don't know if I can start again.

 

Monty

[wrussell]

Which entity has been paying you?

What is your occupation?

[Montys Beard]

Australian I believe mate as it goes through the company that we use in AU.

 

I work in client services for an adtech firm. So technically I work in digital advertising.

[wrussell]

Australian I believe mate as it goes through the company that we use in AU.

 

I work in client services for an adtech firm. So technically I work in digital advertising.

 

You have not identified a recognised skilled occupation.

 

The identity of the entity paying you is a matter of fact, not belief.

 

Best of luck with whatever you decide to do.

[Montys Beard]

Ok, let's try this again then as I didn't get the full implications of my answers.

 

I am paid by the Australian company despite my contract still being linked to the UK company.

 

I am a Client services manager. That is what my contract says.

 

I hope this helps.

Edited January 4, 2016 by Monty
Accidental submission