FAQ - Subclass 457 Visa Holders Affected by the Economic Downturn

Australia's temporary skilled migration program aims to fill skill shortages within the Australian economy that cannot be filled from the local labour market. Due to the current economic climate, the number of skilled positions within the Australian labour market is decreasing.

I have a Subclass 457 visa and I have lost my job. What happens now? What are my options?

Your subclass 457 visa has been granted to you on the basis of your being sponsored by your former employer. If you have lost your job, your subclass 457 visa may be liable to be cancelled under paragraph 116(1)(b) of the Migration Act 1958 for breach of condition 8107. Condition 8107 relevantly provides that the holder must not cease to be employed by the employer in relation to which the visa was granted. If you have lost your job, there are three options available to you:

• Find another employer who is willing to sponsor you and apply for another subclass 457 visa to work for that new employer
• Apply for another type of substantive visa that you may be eligible for.
  Example: if you want to study, a student visa, or if you want to have a holiday before returning home, a visitor visa
• Leave Australia.

If your circumstances prevent you from taking one of these options within 28 days of your ceasing employment, you should contact the department by telephone or go to your nearest departmental office as soon as possible and an officer will discuss the situation with you.
Telephone: 131 881

Is there any chance of extending my stay beyond 28 days after ceasing employment? (kids are in school, have exams in April, was laid off in February).

You should, within 28 days of your employer terminating your employment, do one of the following:

• find another employer who is willing to sponsor you and apply for another subclass 457 visa
• apply for another type of substantive visa
• leave Australia.

If your circumstances prevent you from taking one of these options within 28 days of your ceasing employment, you should contact the department by telephone or go to your nearest departmental office as soon as possible and an officer will discuss the situation with you.
Telephone: 131 881

How long do I have to depart Australia?

If you choose to depart Australia you should do so within 28 days of ceasing employment.

If your circumstances prevent you from departing Australia within 28 days of ceasing employment, you should contact the department by telephone or go to your nearest departmental office as soon as possible and an officer will discuss the situation with you.
Telephone: 131 881

I heard my employer has to pay for my ticket back to my country. Is that true? How about my partner and children?

Your employer is responsible for ensuring that the cost of return travel to your home country for you (and accompanying family member/s) is met. Existing contractual arrangements between you and your employer may indicate whether you or your employer agreed to meeting these costs.

If this matter is not specified in your employment contract and your employer has not agreed to pay your travel costs from Australia, you should contact the department by telephone and ask to speak with the Business Monitoring Unit.
Telephone: 131 881

What about paying for my possessions to be moved?

This would depend on the contractual arrangements between you and your employer. The migration legislation does not require that employers pay for the shipping of personal possessions.

Information on the employer’s obligations under the subclass 457 visa program can be found on the departmental website.
See: Employer Obligations

My employer said he will cancel my visa 28 days after I leave the job and I have to leave the country. Is that true?

No, your employer cannot ‘cancel’ your visa. If you cease to work for them they must inform the department of this. When you cease employment with your sponsor, you have the three options specified above.

Generally, the department will issue a Notice of Intention to Consider Cancellation (NOICC) regarding your subclass 457 visa towards the end of the 28-day period unless you have already applied for a new visa. You will then have five working days after you are notified of the proposed cancellation to respond to the NOICC. After you respond to the NOICC (or tell the Minister/delegate that you do not wish to respond or the time for responding to the NOICC passes), a case officer will then make a decision whether or not to cancel your visa, taking into consideration the information provided in your response.

I heard my employer has to pay me for 28 days after I leave the job. Is that true?

There is no requirement in the migration legislation for an employer to pay a worker for 28 days after termination of the worker’s employment.

Workplace relations laws set out specific rules and protections relating to the termination of an employment relationship. These rules relate to the entitlements a worker may be owed at the conclusion of their employment, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument in the case of redundancy.

Whether an employer is complying with the Minimum Salary Level (MSL) requirements can be a complex matter, particularly when assessing this around termination of employment. It is important to note, however, that both termination payments and annual leave payouts count towards the MSL assessment.

If you believe you have been underpaid salary or have outstanding entitlements, you should contact the department by telephone and ask to speak with the Business Monitoring Unit.
Telephone: 131 881

You should also contact the Fair Work Ombudsman.
See: Fair Work Ombudsman
Telephone: 1300 724 200

My subclass 457 visa does not expire for another 2 years. Why do I have to leave the country if I lose my job?

Your subclass 457 visa has been granted to you on the basis of your being sponsored by your former employer and your subclass 457 visa is subject to condition 8107. Condition 8107 in effect provides that the visa holder must not:

• cease to be employed by the employer who sponsored you for the subclass 457 visa (that is, become unemployed or change employer); or
• work in a position or occupation inconsistent with the position or occupation in relation to which the visa was granted; or
• engage in work for another person, or for themselves, while working for the sponsor.

Therefore, if you lose your job, your subclass 457 visa may be liable to be cancelled for breach of condition 8107. This does not however stop you looking for a new employer to sponsor you.

Does my employer need to give me 28 days notice before ceasing my employment? How much notice must he give me?

The employer needs to comply with all relevant laws relating to workplace relations and any relevant workplace agreements that are in place for your workplace. For information on employment conditions you should contact the workplace Infoline.
Telephone: 1300 363 264.

I tried but cannot get a new job so I understand that I have to leave Australia. How do I get my superannuation payments paid to me?

Information on your eligibility and procedures for lodging a claim for superannuation benefits is available from the department and Australian Taxation Office (ATO.
You can contact the ATO by telephone or refer to the ATO website.
Telephone: 13 28 61
See: Australian Taxation Office > Superannuation

How do I lodge a tax return?

For information on lodging an Australian tax return, you should contact the Australian Taxation Office (ATO) by telephone or refer to the ATO website.
Telephone: 13 28 61
See: Australian Taxation Office > Individuals

My partner is also here on my visa as a dependant. Can they work after I lose my job?

Your partner can work while he/she is the holder of the subclass 457 visa.
Note: if you lose your job and your subclass 457 visa is cancelled for breach of condition 8107, and your partner holds a subclass 457 visa on the basis of being a member of your family unit, your partner’s subclass 457 visa will be automatically cancelled.

If your partner’s subclass 457 visa is cancelled, he/she could apply for another visa. If your partner is granted a visa, whether he/she can work will depend on the conditions attached to that visa.

My partner has qualifications. Can they look for a sponsor and get a subclass 457 visa?

Yes. They must however meet the requirements for making a valid application for a subclass 457 visa, and meet the criteria for the grant of that visa.

If I don't find another job can I stay here under a different visa, such as a working holiday visa or a tourist visa?

This will depend on the type of visa you apply for, and whether you are able to make a valid application for that visa. You may need to be outside Australia to make a valid application for certain types of visas. You will also need to meet all of the criteria for the grant of the visa.

I only arrived on my subclass 457 visa two months ago and now I have lost my job because my boss says the economy is not good.  I left my home and family to come here. What can Immigration do for me about losing my job so quickly?

The subclass 457 visa program is a demand-driven program targeted to meet the specific needs of the Australian workforce for skilled workers. While demand for skilled overseas workers has been high in the past, due to the current economic climate, the number of vacant skilled positions within the Australian labour market will decrease. This will impact on the ability of overseas workers to secure a sponsor or retain their current Australian employment.

Workplace Relations laws set out specific rules and protections relating to the termination of an employment relationship.

These rules relate to the entitlements a worker may be owed at the conclusion of their employment, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument.

If you need more information about what is unlawful or unfair termination under Australian workplace relations laws, you can contact the Workplace Infoline.
Telephone: 1300 363 264

What if my employer buys my airfare and I get a student visa before I depart, what do I do about the ticket?

This is a matter between you and the employer.

I know that I cannot claim my superannuation until my visa is cancelled. I am leaving next week, can you cancel my visa now so I can claim my super?

Information on your eligibility and procedures for lodging a claim for superannuation benefits is available from the departmental and Australian Taxation Office (ATO) website.
See:
Accessing Superannuation Benefits
Australian Taxation Office > Superannuation

You can only submit your application after you have left Australia and your visa has ceased or been cancelled. If you wish to discuss your superannuation, you can contact the ATO.
Telephone: 13 28 61

I don't think my employer has paid me all the money he owes me. What can I do?

If you believe you have been underpaid salary or have outstanding entitlements you should contact the department and ask to speak with the Business Monitoring Unit.
Telephone: 131 881

You can also contact the Fair Work Info Line. Further information can also be found on the Fair Work Ombudsman website.
Telephone: 1300 724 200
See: Fair Work Ombudsman

What happens if I don't leave Australia?

Generally, the department will issue a Notice of Intention to Consider Cancellation (NOICC) regarding your subclass 457 visa towards the end of the 28-day period unless you have already applied for a new visa. The NOICC will allow five working days for you to provide a response. Following receipt of the response, a case officer will then make a decision whether or not to cancel your visa, taking into consideration the information provided in your response. If your subclass 457 visa is cancelled you will become an unlawful non-citizen and may be detained and removed from Australia.