Book Now One of the most common pathways to PR is via the transitional stream of the Employer Nominated Visa (ENS) (Subclass 186) or the Regional Sponsored Migration Scheme (RSMS),(Subclass 187).
This pathway involves working for the same employer on a Subclass 457 Visa for two years and having this employer nominate you for permanent residence. One of the huge advantages of this pathway is that you don't have to submit to a skills assessment in your nominated occupation (which would be required for direct entry ENS and RSMS). This is particularly advantageous for those of you with lots of experience in your chosen occupation, but no formal qualifications.
Transitional ENS and RSMS visas also provide a health waiver option if any of the applicants have medical issues, whereas the Direct Entry ENS and RSMS do not have the waiver, meaning that if you or any of your family members are likely to incur more than $40,000.00 of medical expenses during your time on the visa (calculated as a lifetime expense), your application will be refused. The waiver doesn't necessarily mean any significant medical condition will be overlooked, but it gives you a much better chance (and we advise you seek out professional help if you're faced with having to ask for a health waiver)
Another advantage is if you have dependents on your 457 visa, they can be added as dependents on your transitional visa, even if they are no longer dependent on you (think eg, children who have left school and are working), which means that you can keep the family together.
We often find that clients shoot themselves in the foot and wreck their chances of being successful in the transitional stream because they have not complied with their 457 visa conditions. If you don't comply with your visa conditions, you may miss out on the wonderful opportunity of the Transitional Stream to PR. DIBP shows little mercy to individuals who have done the wrong thing on their 457 visas, so be warned!
Subclass 457 visas have several critical conditions attached as well as some other interesting quirks. Here are 10 biggies (but note, it's not an exhaustive list):-
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If you are in Australia you must commence work with your employer within 90 days of your visa grant. If you're outside Australia you must commence employment within 90 days of arrival.
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You must only work in your nominated occupation. This means that if you are nominated as a carpenter, you may not work as a bricklayer, or if you're nominated as a Registered Nurse you can't be working as a Medical Receptionist to give you but two examples.
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You must only work for your nominating employer. You cannot not have a second job or moonlight after hours unless you have an exempt occupation (certain Medical Practitioners, General Managers and CEO's). And yes this includes those of you who have your own companies and have "self sponsorship" – you must only be employed by your company and be paid by your company.
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If you work for an Australian company, you may also perform work or be seconded to an associated entity of the Australian Company (associated entity is defined by the Corporations Act), but you must still perform duties consistent with your nominated occupation. If you work for an overseas company, you must be directly employed by that company (i.e. not an associated entity).
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If you want to change employers you must wait until your new employer's nomination has been approved before you can start work with your new employer.
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If you change employers because you have a new nomination approved, your visa does not begin again. It has the same expiry date as before.
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If you leave your nominating employer's employment, you must find a new nominating employer within 90 days of leaving your old employer, and as discussed above, you cannot commence with your new employer until your new nomination is approved.
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Leave without pay (LWOP) is permitted whilst you're on a 457 visa for up to a year, where agreed to by the employer and documented. You may not however work for another employer during any period of LWOP.
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The FairWork maternity and paternity leave provisions apply to 457 visa holders. Where the 457 visa holder is entitled to such leave under the Act (as well as with sick leave and annual leave), employment will be deemed to be continuous, which is helpful if you're thinking of a transitional Employer Nominated permanent residence visa and have a baby.
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You can add a partner to your 457 visa after your visa has been granted, provided you can prove you've been in a de facto relationship for at least six months. Your partner's visa is not subject to any conditions (except to remain your partner).
Please ensure you're across all the 457 visa conditions if you think this is the path for you. Don't forget that if you want to go transitional, you must have worked for the same employer for at least two years out of the last 3 and they must be your latest nominating employer. There are some exceptions and we have written an earlier blog post about this.
