457/482/494 visas: 180 days with work rights to find a new employer from 1 July 2024

While more restrictions are imposed on student visas, the opposite is occurring for employer-sponsored temporary visas.

In a news article posted yesterday, from 1 July 2024 sponsored workers will have more time to find a new sponsor and can work in other occupations after their employment ceases with their current sponsor.

This change relates to the “Approved Work Only” visa condition, which is a condition only attached to the visa of a primary sponsored worker. This is visa condition 8107 for anyone still holding the repealed subclass 457 - Temporary Work (Skilled) visa, visa condition 8607 for subclass 482 – Temporary Skill Shortage visa holders, and visa condition 8608 for subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa holders.

These visa conditions all operate similarly, and require the visa holder to:

• commence employment with their sponsor within 90 days of visa grant if they are in Australia or within 90 days of first entering Australia if their visa is granted while outside Australia,

• work only for their sponsor, or in some cases for an associated entity,

• work only in their approved occupation,

• hold any relevant licence, registration or membership within a certain time if it is mandatory to perform the occupation nominated and notify Immigration if that licence is refused or cancelled, and

• not cease working with their employer for more than 60 consecutive days.

Most of these visas are cancelled because the sponsored worker has ceased their employment, however, breaching any of the above will see Immigration take steps to cancel their visa, not their sponsoring employer as some people may believe.

Sponsors have an important obligation relating to cessation of employment, which is to notify Immigration within 28 calendar days of the sponsored worker’s last day of employment. This is so Immigration will know when the “clock” starts ticking and when that person will be breaching their visa condition.

There are several other aspects to ceasing employment that a commonly misunderstood.

The first is that reasonable unpaid leave is not considered ceasing employment.

The second is that there is no automatic cancellation after the 60 days have elapsed since cessation of employment. This should not be confused with section 128 of the Migration Act 1958 (Cth) (“the Act”) which allows a visa to be cancelled without giving notice if the visa holder is outside Australia. It is therefore critical for those wanting to remain in Australia to not be outside Australia after the 60-day period has ended as they then would receive a Notice of Intent to Consider Cancellation (“NOICC”) and therefore buy more time to consider their options.

The third is that Immigration generally does not send a NOICC exactly after the 60 days have expired.

The fourth is that Immigration is agnostic about how an employment relationship ceases. Whether the worker resigns, their employment is terminated, or the position is made redundant does not change the effect this has on their visa and potential cancellation. This is why having a visa cancelled for non-compliance with this visa condition does not attract public interest criterion (PIC) 4013, which imposes a 3-year bar for visa cancellations with exceptions for those with compassionate or compelling circumstances. Otherwise, it would be unjust for someone to be subject to PIC 4013 after their position was made redundant as this was likely out of their control.

From 1 July 2024, and in line with the government’s migration strategy, the number of days a sponsored worker will have after they cease employment before they are considered in breach of their approved work visa condition will increase dramatically from 60 days to 180 days, which is practically six months. There is, however, a maximum total amount of 365 days across the entire visa grant period that will be allowed.

Furthermore, and perhaps just as important, is that during this period they will be able to work in any occupation within reason and will not be in breach of this visa condition for not working in their last approved occupation. The rationale is that moonlighting in a different occupation, even in an unskilled one, will allow them to support themselves while finding a suitable sponsor. They still, however, cannot do anything inconsistent with any licensing requirements that may be imposed.

This major change will not only benefit the visa holder but also potential new sponsors. The reason is that as it stands primary sponsored workers cannot commence with any new employer until at least a new nomination in the same occupation is approved. Otherwise, the visa holder is in breach of working for someone other than their current sponsor, and the employer is breaching section 245AC of the Act by allowing a lawful non-citizen to work in breach of a work-related condition.

This allows employers to “try before they buy” by employing a visa holder for a time to see if they are a good fit for the organisation and before they take the onerous step of sponsoring. It will also allow the worker to commence or continue to work for their new employer while the relevant applications are processing, which would benefit both parties.

After the sponsorship has transferred, it is assumed that the sponsored worker must then only work for their sponsor and in their nominated occupation.

This change will see delays in processing times become insignificant in these situations and should contribute to productivity and labour mobility will increase.