What to do when you have a 457 Visa, are trying to move to a Partner Visa and your work circumstance is changing

We have increasing come across the same situation: a person holding a subclass 457 visa, is in a relationship with an Australian citizen or permanent resident. Either they have lodged a subclass 820 partner visa, or are thinking of doing so in the near future. It is at this point where it all becomes a bit unclear.

Perhaps the 457 visa holder has been made redundant or has a better work opportunity presents itself.

All subclass 457 visa holders are subject to a condition 8107 which requires the visa holders to:

• only work in the occupation approved in the most recent nomination application;
• only work for the nominating employer or if the business is operating in Australia, for the associated entity of the employer;
• not cease employment for the period longer than 90 days …

If a subclass 457 visa holder undertakes work for another company (not associated with the sponsoring employer) or in a position that does not correspond to an occupation approved in the most recent nomination, he or she would be in breach of the visa condition and could be subject to visa cancellation.

The biggest misunderstanding that we see is that the 457 visa holder thinks that they are on a “Bridging Visa A” (or will get the bridging visa by lodging a partner visa). This is not the case. Your 457 visa is still effective. A bridging visa is only in existence once your substantive visa expires. Therefore, you must comply with your 457 visa and the conditions.

So what can you do if you leave your employer?

Option 1. Continue on the subclass 457 visa with a new sponsor

This would mean that the new employer must be an approved business sponsor. They must be willing to transfer your 457 visa to their business. You cannot begin working for your new employer until the nomination is granted. Current processing time is between 1-12 weeks.

Option 2. Apply for a partner visa (whilst holding the subclass 457 and then cancelling your 457 visa)

This option would exist if you applied for the subclass 820 Partner+ visa whilst still holding a 457 visa and then looking at cancelling the 457 visa.

When you apply for a 820 visa, a Bridging Visa A (BVA) is also granted at the same time. However, this bridging visa remains ‘out of effect’ and would not come into effect unless your current 457 visa ceases, and this is not due to occur until sometime in the future.  The BVA retains the same ‘8107’ condition that is attached to your 457 visa.  Therefore, you can only work for your current/former sponsor.  If the 457 visa is cancelled any bridging visas granted to you will cease at the time the visa is cancelled.

If your 457 visa is cancelled, the BVA will cease and you will become an unlawful non-citizen.  You would be required to apply, in person, for a Bridging Visa E (BVE) to remain lawfully in Australia until a decision is made on your 820 visa application.

The BVE granted to you will have condition ‘8101’ (no work) attached.  You may request work rights by completing Form 1005 (Application for a bridging Visa) to have the ‘8101’ visa condition removed from your BVE. You will need to demonstrate financial hardship and a compelling need to work.  This decision will be made by a compliance officer.

IMPORTANT: Please note the following consequences of visa cancellation:

• You will be unable to lodge further applications for most visas while you remain in Australia.
• Your visa status will become ‘unlawful’ and you must immediately apply for a BVE.  Note that there is exclusion periods applicable to unlawful non-citizens who do not rectify their visa status within a specific time.
• The BVE does not contain a return-travel facility.  If you wanted to leave Australia on a BVE, you would need to apply for a new visa offshore to allow return travel to Australia.
• You cannot apply for Australian Citizenship for four (4) years, as the requirement of s22(1)(b) of the Australia Citizenship Act 2007 (the Citizenship Act) is that a person must not be an unlawful non-citizen at any time during the period four (4) years immediately before the date of applying for citizenship.

Option 3. Apply for another visa (student visa)

You must be eligible for any other visa that you would like to apply for. A student visa will enable you to remain in Australia and study. Conditions of the student include:

1. Work is only permitted for 20 hours per week
2. Satisfactory course completion
3. Must maintain student health insurance