RSMS 119 & Employer Nightmare

[Meadows73]

Does anyone know of someone who could offer me advice about my visa and problems with my employer? I only started work yesterday and it is a nightmare already,

 

I was brought out to work as Medical Administrator and there is no job for that and my employer would not let me start for 8 weeks despite insisting I get here ASAP, I am now working as Assistant in Nursing instead, which is pretty heavy going.

My MIA just says suck it up as I got my visa with an age exemption, and that I should stick out my 2 years, they tell me the pay will be the same, not yet had any pay yet, only just started the job. Is there anything I can do? I am desperate!

[Guest siamsusie]

Oh Meadows,

 

I am so so sorry you are experiencing these problems.:hug:.

 

I cant answer your question but hopefully someone will see this and come up with an answer for you.

 

Best wishes

 

Susie x

[Guest Fabian]

Well, its a catch 22.

You can report it to DIAC but they might cancel your visa as well even though , as far as I know, nobody here in this forum reported anything like that. Not sure though but sounds like the company was providing fraudaulent documents to DIAC as the position obivously doesn't exist. They are using you for a position that was not agreed...breach of contract from the employer side. On the other hand I find it a bit strange...cant you give us more information about your situation ? Have you worked for this employer before you came to Australia ?

[Meadows73]

Hi

Thanks for your interest.

 

My Migration agent found me the job through a recruitment agency associated with them (his wifes). No - I have never worked for them before. I am terrified I am caught up in some legal scam, and although I have e-mailed 2 migration lawyers in Australia- nobody has got back to me yet. I do not want to return to the UK but I can see the only loser in this situation would be me and my family. As I got my job with an age exemption, my Migration agent tells me the employer is doing me a favour by employing me and just to stick it out.

The welcome package from the employer does not amount to anything other than charging a large rent for a dilapidated sparsely furnished house which has been condemned for demolition, which he wants me out of as soon as possible.

I am freaking out and in a very nervous state.

[Meadows73]

Hi there

 

I am rapidly reaching the point of no return here in Queensland. I am here on 119 visa, for which the job I have a contract for, does not exist, and I working for the employer as an Assistant in Nursing, although my contract says Medical Administrator.

I am supposed to work 38 hours per week, my first full week's pay was 28 hours only, as these are my allocated working shifts that I have been given.

My next 2 weeks shifts once again does not give me more than 30 hours work per week.

The employers welcome package amounts to living in condemned accommodation for which I am expected to pay $350 per week out of $556 wages, but they want me out as soon as possible.

 

I only arrived 24 May but I am sick to to my stomach going to work every day, my RMA tells me to just to stick with it, and implys that my employer will have my visa revoked if I complain. I only have a pay as you go mobile phone, so I have e-mailed 2 migration lawyers who have not answered my e-mails.

 

What can I do?

[thewebweazel]

Some information provided on the 1054 Employer nomination RSMS

 

Change in circumstances

Details of any changes in the nominating business or nominated

position including ownership, change in duties, remuneration

or withdrawal of your support must be provided to the Centre

of Excellence processing the applications without delay.

 

I would think that you employer is breaking the law by no following the above instruction

Visa cancellation

There are powers under the Migration Act 1958 (the Act) to

cancel RSMS visas. These provide for the cancellation of an

RSMS visa where the employee has not commenced

employment with the employer within 6 months of arriving in

Australia or after visa grant if in Australia. The Act also provides

powers to cancel an RSMS visa if the employee leaves the

position within 2 years of commencement of employment for

reasons within their control. Visa cancellation does not occur

where the employee made a genuine effort to complete the

2 year contract with the employer.

 

Surely not earning enough to survive would be considered legal grounds to challenge your visa being canceled?

 

I honestly think you need to phone the Migration lawyer and make an appointment, I would not think that they would get back to you by email until you have made the initial contact!

[Guest cowboy]

Some information provided on the 1054 Employer nomination RSMS

 

Change in circumstances

Details of any changes in the nominating business or nominated

position including ownership, change in duties, remuneration

or withdrawal of your support must be provided to the Centre

of Excellence processing the applications without delay.

 

I would think that you employer is breaking the law by no following the above instruction

 

Visa cancellation

There are powers under the Migration Act 1958 (the Act) to

cancel RSMS visas. These provide for the cancellation of an

RSMS visa where the employee has not commenced

employment with the employer within 6 months of arriving in

Australia or after visa grant if in Australia. The Act also provides

powers to cancel an RSMS visa if the employee leaves the

position within 2 years of commencement of employment for

reasons within their control. Visa cancellation does not occur

where the employee made a genuine effort to complete the

2 year contract with the employer.

 

Surely not earning enough to survive would be considered legal grounds to challenge your visa being canceled?

 

I honestly think you need to phone the Migration lawyer and make an appointment, I would not think that they would get back to you by email until you have made the initial contact!

 

I would not consider your visa to b cancelled ..as u hv made genuine effort to work for your employer..and u are already a parmanent resident so u can go and find full time jobs elsewhere..jus speak to diac directly and say about ur situation and ask them what step should you take...whether to leave or stay?if Diac let u go then u are free as per my knowledge they cannot cancel your visa easily untill and unless u hv done something wrong..and in ur case u seems to b genuine..so go ahead and talk to diac directly..

im nearly on the same situation so m thinking about same as well..

jus keep posted what u up to mate..

all the best..

 

all the best..

[Guest cowboy]

I would not consider your visa to b cancelled ..as u hv made genuine effort to work for your employer..and u are already a parmanent resident so u can go and find full time jobs elsewhere..jus speak to diac directly and say about ur situation and ask them what step should you take...whether to leave or stay?if Diac let u go then u are free as per my knowledge they cannot cancel your visa easily untill and unless u hv done something wrong..and in ur case u seems to b genuine..so go ahead and talk to diac directly..

im nearly on the same situation so m thinking about same as well..

jus keep posted what u up to mate..

all the best..

 

all the best..

[Meadows73]

Hi there

 

Thank you for your reply. I am still terrified of having my visa revoked, and I do not know what to do for the best. I am working shifts, so I will try to phone the Migration lawyer as soon as I can.

[Guest Mongobear]

Hi there

 

Thank you for your reply. I am still terrified of having my visa revoked, and I do not know what to do for the best. I am working shifts, so I will try to phone the Migration lawyer as soon as I can.

 

Hi Meadows,

 

there has been a discussion about the same topic about 1 year ago here on PIO and the one and only conclusion was that it has never ever happened that a RSMS visa has been cancelled. RMAs were also involved in that discussion. Sorry, but I cannot find the link any more.

Your situation is crystal clear since you're trying to do your job but the employer is clearly breaking the conditions. So just quit that nightmare and go ahead with your life. I wouldn't want to spend another day there with my family if I were you.

 

Cheers

Uli

[thewebweazel]

Your situation is crystal clear since you're trying to do your job but the employer is clearly breaking the conditions. So just quit that nightmare and go ahead with your life. I wouldn't want to spend another day there with my family if I were you.

 

 

Although your advice to Meadows may be correct, I feel I need to play Devil Advocate here.

 

Meadows I do not think that quitting would be a wise move considering the following extract from the 1054 Employer nomination RSMS form

 

"The Act also provides powers to cancel an RSMS visa if the employee leaves the position within 2 years of commencement of employment for

reasons within their control."

If this is a scam I would think that the employer would use this clause to get out of their contractual obligations (to ensure there is no grounds for legal action), namely 2 years guaranteed employment.

 

At this point the best move I would think (apart from seeing a Migration Lawyer) would be to gather evidence that you has fulfilled the obligations of the visa and that the employer is at fault. So any correspondence regarding offer of employment and stated position, as well as the correspondence regarding the urgency the the position needed to be filled ASAP. A diary of the events that have happened so far as well as any further events would be helpful in proving that you have done all you can to resolve the matter.

 

I would at this stage in writing request an explanation why the position offered is not available now, just so you can get the employer to admit in writing that the position no longer exists.

 

Is it not possible that your Partner goes and sees the Migration lawyer on you behalf? Just to get the Ball rolling

[KD79UK]

Hi sorry to highjack Meadows and I really hope you get sorted stay in there mate!!

 

My plight on the 857 is as follows:

 

I'm on an 857 sponsored under legal nec (no longer on skills list), and I have been with my employer for almost 3 years (2.5 on a 457, recieved the 857 in January this year).

 

I am having a real issue with the employer and pay, I have complained I do not think my rate is high enough but they will not yield. I desperately want to leave and have a job offer from a company in the City (I am currently working for them now for my company), the position is legal. I have had a lot of arguments with them today, which has resulted in me refusing to work anywhere but their own office in the regional area (a move that will actually cost them money, but they seem to want to cut off their noses despite their face). I feel that the working relationships have broken down and that I will no longer be able to work with those in the office (management) and they will not be able to work with me.

 

I would like to leave them does anyone know if providing DIAC with another job offer and stating that the work relationship with my company has broken down (maybe showing some of the emails where we have argued about pay) would be sufficient?

 

I have the added problem that I have actually been working in another professsioin (one that is on the MODL) for my time with the company and not in legal.....and the new job will be in the City rather than a regional area (currently where I am seconded to when I shouldnt be anyway!)

 

Any info you can provide would be deeply appreciated or recommend a decent immigration lawyer on here who I can trust? I really would be grateful, thank you for taking the time to read this, the whole situation is making me feel quite ill!:arghh:

 

K

[Cal2]

just a thought to anyone having problems, and you are probably doing this already, keep a diary of all and every little details, as I'm sure this will help in the furture, sorry I dont have any other advice but I dont know the legal side at all

[KD79UK]

Anyone have an opinion, if I can get the employer to agree to write to DIAC and say that both parties are unable to continue working together due to differences of opinion and wage disputes, and the fact I have been with the employer for nearly 3 years (shows I have genuinely tried surely!), are DIAC likely to go for cancellation of the visa? seen things about S137Q but dont know heaps about it!!!

 

All help appreciated just looking for some answers hopefully!!!

[Guest cowboy]

Anyone have an opinion, if I can get the employer to agree to write to DIAC and say that both parties are unable to continue working together due to differences of opinion and wage disputes, and the fact I have been with the employer for nearly 3 years (shows I have genuinely tried surely!), are DIAC likely to go for cancellation of the visa? seen things about S137Q but dont know heaps about it!!!

 

All help appreciated just looking for some answers hopefully!!!

 

 

mate, why dont u ring diac and let them know about your current situation but donot provide any details about yours..Ask them if you leave your current employer with the above reason you have mentioned what are the consiquence..

its dosent hurt to ask them.. if u are lucky they might let u go..

:idea:

[KD79UK]

Tried to ring DIAC today, gave up first time, second time waited 45mins and was told that if I left the visa "may" be cancelled! Was provided with an email addy but that came back that they would not respond unless it was a question actually about a current visa application....I dont hold much hope from DIAC unless some kind person has an email address or phone number specifically for the unit dealing with them?

[KD79UK]

I'll also add I spoke to an immigration lawyer who said if I could request a pay rise based on current market base rates and continually got knocked back I should be able to argue that I had a good reason to leave. He also stated that he had never known them to actually cancel a visa and if they do you can always appeal! He stated that the onus was for them to show they had a good reason to cancel the visa....so if you can succinctly prove you are doing the right thing Meadows, but you were misslead or they were not providing you with the job you were supposed to have then I think you should have a shot...have you thougth about mediation? it would record all your greivences and if they do not provide you with satisfactory responses I think you would probably have a good case to hand in your notice...ps dont trust the agent who got you the job they probably have a commission!!!!!

[thewebweazel]

Meadows was your Agent MARA registered ??

[Guest elvaretta]

Hi guys, could somebody give me a feedback please?

More less I have same circumstance as well. I'm Registered Nurse who was work in Sydney with 457 visa for more than 3 years. I got over from employer to work in other state with RSMS visa sponsor. I thought it was a good idea, coz no need to get fussy by applying GSM visa point. Briefly, all done smoothly, started work at new place.

After work for two weeks, there was issue that this facility will take over by another organisation. Well, during that time, there was payment issue, late payment then penalty unpaid. Currently, all management was take over by new management but my payment is remain with previous employer till end of financial year.

The gossip is my employement status will continue with new organisation, on the other hand, I were not really comfort anymore to keep stay on. In this state I just make decision on plan that soon new owner completely take over, which is mean the employer who employed me was broke my contract. the visa granted was on last february, and I commit to resign soon after all management and payroll take over bynew employer.

 

So guys, could you give me opinion with my post? Do you think I am safe, to do so?

NOTE:

-I've been searching any evidence or statement about visa cancellation, but couldnt find at all.

-Immigration officer been contacted and unable to say "YES" visa will cancel if 2 years contract hasnt fulfill (need to spend 50 bucks to wait and transfered to 4 immigration officer)

 

So, Meadows...dont get hesistate mate...just get your life as what you expect, we should be fine. If you feel not sure, let me prove it first. I have 3 job over at NT, WA and Queensland. Will move on ASAP, I can be the first evidence if my Permanent Resident will cancel in this circumstance. Will let you know trough this thread soon, cheers

[Guest elvaretta]

omg...I did some mistake to write some words...kuku..lol

[Guest elvaretta]

"In addition, just because an RSMS visa is granted does not mean that the migrant will stay with the employer or in a regional area. Whilst an RSMS visa can be cancelled if the sponsored employee does not stay with the employer for two years, RSMS visas are not monitored by the Department of Immigration after grant and there is little evidence that this power is actually being exercised by the Department of Immigration. The RSMS visa is a permanent visa with now work restrictions, so there is a strong temptation for visa holders to move back to the big city after grant."

quote from http://australiablog.y-axis.com/?p=585

 

One thing that I'm pretty sure...Australian Immigration is very humanistic to deal with immigration issue for people even though the visa requirement is really strict one.

[Guest cowboy]

"In addition, just because an RSMS visa is granted does not mean that the migrant will stay with the employer or in a regional area. Whilst an RSMS visa can be cancelled if the sponsored employee does not stay with the employer for two years, RSMS visas are not monitored by the Department of Immigration after grant and there is little evidence that this power is actually being exercised by the Department of Immigration. The RSMS visa is a permanent visa with now work restrictions, so there is a strong temptation for visa holders to move back to the big city after grant."

quote from http://australiablog.y-axis.com/?p=585

 

One thing that I'm pretty sure...Australian Immigration is very humanistic to deal with immigration issue for people even though the visa requirement is really strict one.[/QUOT

 

thanks for the infomation. yes it is true that department dosent monitor rsms visa holders but if employers complains about the visa holders who leaves the position then then case b more complicated..

the other side..if we think that..its states visa may b cancelled....it dosent states visa will b cancelled if rsms holders leaves their current employer..

its 50-50 chance ..and no one wants to take a chance and dont want to b the first person whose visa is cancelled by the depatment...

if u find any new thing plz post in future..

cheers

[KD79UK]

Been offered a job for double the salary!!! Also managed to find job adverts for my work for around 50K more than I am being paid!!! Have numerously requested a salary increase and been knocked back, will be giving them one more chance and then handing in my notice. The immigration lawyer I spoke to said this should be a sufficient reason to be able to put to DIAC should they investigate.....fingers crossed will post how I get on!!!

[KD79UK]

Also found this on a website by a migration agent...although it is quite a few years old!

 

 

The obligation in s.137Q is phrased in terms of your staying with the employer, or at least making a "genuine effort" to do so. The following extract from a DIAC internal instruction might help:

 

3.4 Genuine effort

 

 

 

3.4.1 For cancellation to occur, the Minister must be satisfied that the visa holder did not make a genuine effort to commence employment or to complete the required two-year period of employment contract.

 

 

 

3.4.2 For policy guidance on these issues, please contact the Business Employment Section, National Office. In assessing, however, whether the visa holder made a genuine effort the compliance decision maker must consider:

 

• the visa holder’s reasons and/or circumstances under which the visa holder failed to commence work or to complete the two-year contract (A serious family or personal consideration may be a factor under these circumstances);

 

• the possibility that the employee, in collusion with the employer, does not commence work within the 6 month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia using Subclass 119 or 857 visas;

 

• in the case of termination, the period of the visa holder’s employment with the nominating employer prior to termination of the contract (Generally, periods of more than 12 months may be considered as a genuine effort.);

 

• any other matter which is relevant to commencement or termination of the nominated employment.

 

 

 

3.4.3 If terminating the employment on reasonable grounds, a visa holder would be expected to give their nominating employer appropriate notice, including the opportunity to make a counter offer in circumstances where a more attractive employment opportunity exists in the regional area.

 

 

 

3.4.4 A situation created by the visa holder that results in termination of their employment would not be considered a genuine effort.

 

 

 

3.4.5 It is not expected that a visa holder would be assessed as failing to have made a genuine effort where the visa holder failed to commence, or remain in the nominated employment because of a situation out of the visa holder’s control, for example.

 

• the position was not filled or did not remain viable due to a serious downturn in business activity; or

 

• financial loss, bankruptcy or closure of the business.

 

 

 

3.4.6 Officers are also expected to consider any hardship that the visa holder or the visa holder’s family may suffer if their visa is cancelled.

[KD79UK]

I'm on a bit of a role now! Also posting this which was sent to me today, regarding leaving an employer when they are paying you below the level of other people in similar occupations in similar regions."(response from DIAC)

 

"...If an 857 visa holder does not complete 2 years employment with the sponsor we can consider cancellation of the visa. The main considerations are the effort the visa holder has made to remain employed, that the employment has been for at least one year and that future employment is obtained in a regional area.

 

seeking fair remuneration for your occupation with your employer is considered as being a genuine effort to remain employed. One of the criteria that should be applied when an employer is approved for the regional scheme is that the salary they are offering is reflective of the award with regional variations. If your company will not pay you a fair wage for your occupation and skills and another regional employer will then it is unlikely that your visa would be cancelled as long as you have given your current employer a reasonable chance to match the salary...