457 change of trading name affecting imminent 186 submission

[ProudmuminUK]

Hi all

This is a pretty urgent query, and I would really appreciate a prompt response.

My son-in law's 186 transition visa is almost ready to be submitted.  But before that can be sent to immigration his current 457 visa needs to be updated due to a change in trading name by his company due to a restructuring - so the sponsorship needs to be transferred to the new trading name.  Nothing has changed regarding his job or terms and conditions or even the public face of the company - and he has been on the same 457 since 2014.

In today's current climate, is this transfer of sponsorship to the new trading name affected by the new rules and regulations for the 457 visa?  The reason I'm asking is because my son in law's position is affected by the new caveats for 457 and 186 Direct entry visas (not at this moment transition 186) so will immigration use these caveats to reject this application for sponsorship transfer? Or, is the transfer based on the old rules that originally approved his 457 visa back in 2014 ...i.e a sort of grandfathering situation?

If it is affected by those new caveats, the sponsorship will almost certainly be refused, leaving my son-in-law, daughter and baby in a situation where they will have to leave Australia early next year, without any hope for applying for the 186.

If it isn't affected by those caveats the sponsorship should hopefully be a paper exercise, and then the submission for the 186 transition visa can be made (before March 2018) 

As it stands now, his company has basically told my son-in-law that it's come to the end of the road because the agent has advised the transfer of sponsorship will be rejected;  which after 5 years in the country is a pretty hard blow for a young family.  (Yes I hear all those who are shouting 'it's only a temporary visa!!!')

Their current agent is not being very clear in their advice, and tbh after over a year of delays etc, a second or even third opinion would be very welcomed indeed....  if it's clear that the advice they're being given is wrong then clearly a change of agent will need to happen pretty quickly!

Thanks for reading,

 

 

 

 

 

[LouDYorkie]

Hi all
This is a pretty urgent query, and I would really appreciate a prompt response.
My son-in law's 186 transition visa is almost ready to be submitted.  But before that can be sent to immigration his current 457 visa needs to be updated due to a change in trading name by his company due to a restructuring - so the sponsorship needs to be transferred to the new trading name.  Nothing has changed regarding his job or terms and conditions or even the public face of the company - and he has been on the same 457 since 2014.
In today's current climate, is this transfer of sponsorship to the new trading name affected by the new rules and regulations for the 457 visa?  The reason I'm asking is because my son in law's position is affected by the new caveats for 457 and 186 Direct entry visas (not at this moment transition 186) so will immigration use these caveats to reject this application for sponsorship transfer? Or, is the transfer based on the old rules that originally approved his 457 visa back in 2014 ...i.e a sort of grandfathering situation?
If it is affected by those new caveats, the sponsorship will almost certainly be refused, leaving my son-in-law, daughter and baby in a situation where they will have to leave Australia early next year, without any hope for applying for the 186.
If it isn't affected by those caveats the sponsorship should hopefully be a paper exercise, and then the submission for the 186 transition visa can be made (before March 2018) 
As it stands now, his company has basically told my son-in-law that it's come to the end of the road because the agent has advised the transfer of sponsorship will be rejected;  which after 5 years in the country is a pretty hard blow for a young family.  (Yes I hear all those who are shouting 'it's only a temporary visa!!!')
Their current agent is not being very clear in their advice, and tbh after over a year of delays etc, a second or even third opinion would be very welcomed indeed....  if it's clear that the advice they're being given is wrong then clearly a change of agent will need to happen pretty quickly!
Thanks for reading,
 
 
 
 
 

I don't know whether the recent changes have any effect unfortunately but we did go through the same process and it sounds, on the surface at least, under similar circumstances. I saw it as an admin task really that took a couple of months to be approved before we submitted the 186 application. I can't see why that would change everything unless the name they are changing to does not now meet the training benchmark for example?

Hopefully an MA on here can give you some positive news!

[Raul Senise]

9 hours ago, ProudmuminUK said:

Hi all

This is a pretty urgent query, and I would really appreciate a prompt response.

My son-in law's 186 transition visa is almost ready to be submitted.  But before that can be sent to immigration his current 457 visa needs to be updated due to a change in trading name by his company due to a restructuring - so the sponsorship needs to be transferred to the new trading name.  Nothing has changed regarding his job or terms and conditions or even the public face of the company - and he has been on the same 457 since 2014.

If only the "trading name" has changed, this is not a big issue and is only a notifiable event. If however, the business entity has changed, i.e. change of ABN, then this will be an issue as it will require an 457 nomination transfer and 186 under the new entity.

9 hours ago, ProudmuminUK said:

In today's current climate, is this transfer of sponsorship to the new trading name affected by the new rules and regulations for the 457 visa?  The reason I'm asking is because my son in law's position is affected by the new caveats for 457 and 186 Direct entry visas (not at this moment transition 186) so will immigration use these caveats to reject this application for sponsorship transfer? Or, is the transfer based on the old rules that originally approved his 457 visa back in 2014 ...i.e a sort of grandfathering situation?

If a 457 nomination is required, it will be assessed under the current Regulations, including the caveats. No "grandfathering" arrangements will apply.

9 hours ago, ProudmuminUK said:

If it is affected by those new caveats, the sponsorship will almost certainly be refused, leaving my son-in-law, daughter and baby in a situation where they will have to leave Australia early next year, without any hope for applying for the 186.

If it isn't affected by those caveats the sponsorship should hopefully be a paper exercise, and then the submission for the 186 transition visa can be made (before March 2018) 

As it stands now, his company has basically told my son-in-law that it's come to the end of the road because the agent has advised the transfer of sponsorship will be rejected;  which after 5 years in the country is a pretty hard blow for a young family.  (Yes I hear all those who are shouting 'it's only a temporary visa!!!')

Their current agent is not being very clear in their advice, and tbh after over a year of delays etc, a second or even third opinion would be very welcomed indeed....  if it's clear that the advice they're being given is wrong then clearly a change of agent will need to happen pretty quickly!

I believe that you will only confuse the situation by trying to obtain a solution to a potentially complex issue on a public forum. There is simply not enough information in your post to offer any worthwhile advice.

If they are not clear or confident with the information they are receiving from their employer's Agent, they should seek an independent assessment of their situation. 

[ProudmuminUK]

Thank you for your responses Lou and  Raul...

Checking the email that was sent to my son in law from the agent it seems they have submitted a 'nomination transfer application' which suggests - I think - that it is more than a simple name change (I could be wrong?!).  It further states that they were clear in the application that is was only being submitted due to a company restructure.   The email doesn't state that they have been specifically asked for confirmation regarding the new caveats, but it looks like they are pre-empting that request...  unfortunately as I mentioned earlier, my son in law falls foul of one of the caveats.  

What seems unfair on the face of this, is that due to a business change outside of his control he may be penalised by the recent changes for the remaining 6 months he has left on his 457 visa - affecting his steps towards PR.  If that business change hadn't happened, his 186 application would be based on the transition criteria (ie without the caveats in place) currently in place until March 2018.

Raul - I totally understand this is complex, and believe me has been going on for a month of Sundays due to a lack of focus from the HR and Migration teams and 'waiting to see what the changes would be'   I will mention you to my son in law, he may well want to seek an independent assessment.

 

Many thanks

 

[Raul Senise]

27 minutes ago, ProudmuminUK said:

What seems unfair on the face of this, is that due to a business change outside of his control he may be penalised by the recent changes for the remaining 6 months he has left on his 457 visa - affecting his steps towards PR.  If that business change hadn't happened, his 186 application would be based on the transition criteria (ie without the caveats in place) currently in place until March 2018.

 

If the company has restructured, he can potentially still apply under the Transitional pathway of the subclass 186 without being affected by caveats. The issue will be the 457 transfer which will most likely be required.

Unfortunately, at the moment, fairness does not seem to be a consideration of the migration program.

[ProudmuminUK]

Raul, do immigration agents ever get to speak to the case officers to explain the situation / context so that pragmatism can be applied or is it purely a black and white decision?

 

 

Many thanks

 

[Raul Senise]

It has become vary rare to speak with case officers as Immigration has adopted a no contact policy, with case officers not providing their full name or any contact details in most cases.

The reality is however, that you need to meet the Regulations, there is no discretion. Sometimes however , there are grey areas which need to be argued with a well researched and presented written submission.

[ProudmuminUK]

Thanks again Raul - it's 3am where I am now, and I can't sleep as my brain is buzzing!  Regarding your 'well researched and presented written submission' for any grey areas...I've been thinking about a comparable scenario, and I found that in the last few years Immigration had amended the 'stop the clock' scenario; ie the visa holder would no longer lose the years already accrued which would enable an employee to progress to the 186 transition visa without having to build up 2 years again.  See below an extract from a web article.  So my thoughts are; if immigration had already amended a 'grey area' that affected a 457 visa holder due to business restructuring it could be argued that the current 'grey area' also penalises the existing 457 visa holder for the exact same reason ie because of the business restructuring the existing visa holder is penalised - this time due to new caveats that weren't in place at the time of original approval. It could also be further argued that the visa holder (with sufficient years) could reasonably expect to submit an application for a 186 transition visa which is currently exempted from those same caveats - presumably exempted as it's recognised that existing 457 holders may not meet the caveat criteria.  

I'm really sorry to harp on about this, but my brain will not stop working on this, so apologies if the above doesn't read well...but does it sort of make sense?!!

I did email my son in law with your details, but I haven't heard from him today/yesterday, so not sure whether he's read it.

Thanks again for your responses.... and sorry if I'm asking too much, it's just the way I am when I think there's a problem to address, I don't give up fact finding!

Extract from website:

In a rare piece of good news, 457 visa holders caught in a transfer of business scenario can be comforted in the knowledge that the Department of Immigration and Border Protection (DIBP) has changed its transfer of business policy for the better.

From mid last year, where the sponsor employer has restructured the business or sold the business or created a new legal entity, AND the 457 worker has continued to work in exactly the same position, performing the same duties in the same location, with the same working conditions, and/or the same management and/or the same business name under a new legal entity, the two years will continue to accrue and not be interrupted.

In other words you no longer have to reset the clock to zero.

[Roza]

Hi,

would really like to know What was the outcome for your family. Seems like I am in similar situation