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Visability: Beware of job description

July 26, 2015 • Opinion, Visability,

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues.

Co Antrim native and registered migration agent John McQuaid provides a uniquely Irish perspective on current visa and migration issues.

Dear John,
I will soon complete two years on a sponsored 457 visa with the same employer so I am looking for my boss to nominate me for permanent residency on the 186 visa, temporary transition stream.
The immigration website says you must be in the same occupation for two years to be eligible.
The job title that was on my contract when my 457 visa was approved was changed slightly in the last year.   
It is the same role except I now work on longer-term projects. My nominated occupation per the immigration consolidated skilled list is life scientist and this hasn’t changed.
Does my job title changing cause any problems at the 186 permanent visa stage?
Regards
LF

 

Dear LF,

The Employer Nomination Scheme (ENS) allows Australian employers to nominate employees for permanent residence.

The two main ENS streams are Temporary Residence Transition and Direct Entry. Each stream has its own set of regulations or rules to meet.
ENS Temporary Residence Transition is a two-stage process that needs a nomination application by the employer and a 186 visa application for the employee.

And, yes, the visa applicant needs to have been on a 457 visa for at least two years.

But then it gets a bit more complicated.

The Immigration website tries to simplify the lengthy legal rules and in doing so can still be confusing and possibly misleading.

In this case the Department of Immigration and Border Protection website talks about the need to have “worked for two years … In the same occupation with their nominating employer” but the migration law says “been employed in the position in respect of which the person holds the 457 visa … “

It is the law that will be applied to the application so it is best to be sure of your ground.

A change of job title would likely raise questions about whether the position is the same. Proving that the role hasn’t changed then becomes critical.

It is worth noting that the first test of the “two years in the position” is at the employer nomination stage, before the visa application is even assessed.

In short, during the two-year work period, a change of position or duties can potentially cause eligibility issues.

Anyone who thinks they may be affected by a change in position should really consider seeking professional migration assistance and advice before proceeding with an ENS application. Find a migration agent at http://mia.org.au/

Where there is a significant change of job role or duties, 457 employers are supposed to apply to immigration for a change of the nominated occupation.

This would trigger a reassessment of the persons skills to meet the new occupation.
Dear John,
As I am a permanent resident, and my wife an Australian citizen, can we sponsor someone into the country?
Regards
J Mc C
Permanent residents or citizens can sponsor through the family visa stream.
The most common are partner and parent visas. There are also child, carer, and remaining relative visas, each with its own set of rules and often very long waiting lists. See https://www.immi.gov.au/migrants/family/family-visas-all.htm
Through skilled migration, it is possible to sponsor a family member to work in your business on 457 or 186 ,187 visa.
Expect scrutiny by the Department of Immigratiion and Border Protection on the genuineness of the position that is being offered.
Another alternative is the 489 skilled sponsored visa, a points- tested option allowing family in Australia to sponsor, thus giving a critical 10 points towards an application.

See http://www.immi.gov.au/Visas/Pages/489.aspx

Find a migration agent at http://mia.org.au/

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