ENS: small gap in 457
Jul 20th 2009, 2:12 pm
#1
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Joined: Jul 2009
Posts: 5
ENS: small gap in 457
Hi,
As I'm new on the forum, I'd like to say hello to everyone before I write my post and hope you can answer my question by sharing your experience.
Here it goes, I'll do it short: I lived in Australia for the last 4 years under a 457 and got my current employer to nominate me for an ens 856 after 1 year working for them.
The thing is that between my current and previous job I had a 2 months period of unemployment where I had to leave after 28 days to comply with Oz immigration regulations and return to Australia with a tourist visa to pursue my job search.
Now my question is: does this necessarily mean that the statement:
"have worked full-time in Australia in the nominated occupation on a Subclass 418, 421, 422, 428, 444, 457 or 461 temporary residence visa for the last two years prior to the visa application being made (including at least the last 12 months with the nominating employer)"
is void and I have for only option to take a skill assessment?
This is killing me because my diploma doesn't correspond to the work I'm doing now (+10 years experience in that field though)
Can't the extended period where I lived and worked in Australia be taken into account?
Has anyone been in that case and successfully granted a 856?
Cheers,
George
As I'm new on the forum, I'd like to say hello to everyone before I write my post and hope you can answer my question by sharing your experience.
Here it goes, I'll do it short: I lived in Australia for the last 4 years under a 457 and got my current employer to nominate me for an ens 856 after 1 year working for them.
The thing is that between my current and previous job I had a 2 months period of unemployment where I had to leave after 28 days to comply with Oz immigration regulations and return to Australia with a tourist visa to pursue my job search.
Now my question is: does this necessarily mean that the statement:
"have worked full-time in Australia in the nominated occupation on a Subclass 418, 421, 422, 428, 444, 457 or 461 temporary residence visa for the last two years prior to the visa application being made (including at least the last 12 months with the nominating employer)"
is void and I have for only option to take a skill assessment?
This is killing me because my diploma doesn't correspond to the work I'm doing now (+10 years experience in that field though)
Can't the extended period where I lived and worked in Australia be taken into account?
Has anyone been in that case and successfully granted a 856?
Cheers,
George
Jul 21st 2009, 1:13 pm
#2
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Joined: Jul 2009
Posts: 5
Re: ENS: small gap between two 457
no one here has had a similar experience?
cheers, G.
cheers, G.
Jul 22nd 2009, 2:14 am
#4
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Joined: Dec 2006
Location: North Rocky
Posts: 447
Re: ENS: small gap between two 457
Sorry George can’t help you with that one but it would be good if you could keep us updated on this if no-one else can help. It might be that you have to wait for another year. I know it can be quite a b*mmer the way experience seems to count for very little in some instances.
good luck
Mx
good luck
Mx
Jul 22nd 2009, 3:59 am
#5
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Joined: Feb 2009
Location: Sydney
Posts: 114
Re: ENS: small gap in 457
HI There,
The requirement is not that you have worked continuously for the past 2 years, it is that you have been working for 2 years in Australia.
So if you have 2 months off between jobs, you cant apply until you have been in Australia for 2 years and 2 months.
Cheers
The requirement is not that you have worked continuously for the past 2 years, it is that you have been working for 2 years in Australia.
So if you have 2 months off between jobs, you cant apply until you have been in Australia for 2 years and 2 months.
Cheers
Jul 22nd 2009, 5:02 am
#6
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Re: ENS: small gap in 457
Hi,
Thanks for your replies.
CrystalBall, I'm glad you're a migration agent, because it's my migration agent who's telling me that the wording of this clause is such that there can't be any gap (ie. my ETA between my two 457 resets the two year mandatory period from the start of the new one). I'm lost.
I've always understood this clause like you do but not her.
Have you had to deal with such a case before, is there anything I can refer to? Thanks in advance.
Regards,
George
Thanks for your replies.
CrystalBall, I'm glad you're a migration agent, because it's my migration agent who's telling me that the wording of this clause is such that there can't be any gap (ie. my ETA between my two 457 resets the two year mandatory period from the start of the new one). I'm lost.
I've always understood this clause like you do but not her.
Have you had to deal with such a case before, is there anything I can refer to? Thanks in advance.
Regards,
George
Last edited by _geo_; Jul 22nd 2009 at 5:13 am.
Jul 22nd 2009, 7:04 am
#7
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Joined: Feb 2009
Location: Sydney
Posts: 114
Re: ENS: small gap in 457
Well if they are registered, I assume they have access to Legend (the professional library subscription from the Immigration Department) and the PAM (Policy Advice Manual) clearly states what I have said above. There is a specific paragraph on accounting for leave of absense.
I looked it up for you before responding so go ahead and apply.
cheers
I looked it up for you before responding so go ahead and apply.
cheers
Jul 22nd 2009, 8:01 am
#8
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Joined: Jul 2009
Posts: 5
Re: ENS: small gap in 457
Hi,
Yeah, she sent me an a copy of the paragraph in the legend/PAM where it's described, but she still read it as she said, and to me it's as clear as mud.
I've contacted the dept of immigration, the lady told me this is unusual but should be fine. She advised me to send my question through their web site, which I did. I'm waiting for their reply and will let you know.
Thanks for your support.
Regards,
George
Yeah, she sent me an a copy of the paragraph in the legend/PAM where it's described, but she still read it as she said, and to me it's as clear as mud.
I've contacted the dept of immigration, the lady told me this is unusual but should be fine. She advised me to send my question through their web site, which I did. I'm waiting for their reply and will let you know.
Thanks for your support.
Regards,
George
Jul 23rd 2009, 12:10 am
#9
Retired
Joined: Apr 2004
Posts: 34,649
Re: ENS: small gap in 457
Hi,
Yeah, she sent me an a copy of the paragraph in the legend/PAM where it's described, but she still read it as she said, and to me it's as clear as mud.
I've contacted the dept of immigration, the lady told me this is unusual but should be fine. She advised me to send my question through their web site, which I did. I'm waiting for their reply and will let you know.
Thanks for your support.
Yeah, she sent me an a copy of the paragraph in the legend/PAM where it's described, but she still read it as she said, and to me it's as clear as mud.
I've contacted the dept of immigration, the lady told me this is unusual but should be fine. She advised me to send my question through their web site, which I did. I'm waiting for their reply and will let you know.
Thanks for your support.
Jul 23rd 2009, 3:27 pm
#10
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Joined: Nov 2003
Location: Cork, Ireland
Posts: 2,887
Re: ENS: small gap in 457
Hi George
Defnitely get another opinion although I am more inclined to agree with your own Agent. The legislation is quite clear on this - it states you must be employed full-time in the same occupation to that of the nomination, for the whole 2 year period ending immediately prior to the visa application - and at least the last year for the sponsor in the sponsored position.
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The refernce should be to 856.213(b)(iii)(B)
In any event the policy advice is not helping with your predicament in that it is saying that breaks like yours are not generally accepted and implies only paid leave breaks would be OK.
So it is up to the Processing Office's policy on whether to enforce the criterion strictly or cut you some slack - so only they can give the green light but I suspect you may have to wait until you have done 2 years with your current employer because of this period of unemployment.
Regards
Defnitely get another opinion although I am more inclined to agree with your own Agent. The legislation is quite clear on this - it states you must be employed full-time in the same occupation to that of the nomination, for the whole 2 year period ending immediately prior to the visa application - and at least the last year for the sponsor in the sponsored position.
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The refernce should be to 856.213(b)(iii)(B)
In any event the policy advice is not helping with your predicament in that it is saying that breaks like yours are not generally accepted and implies only paid leave breaks would be OK.
So it is up to the Processing Office's policy on whether to enforce the criterion strictly or cut you some slack - so only they can give the green light but I suspect you may have to wait until you have done 2 years with your current employer because of this period of unemployment.
Regards
Jul 24th 2009, 5:14 am
#11
Forum Regular
Joined: Jan 2008
Posts: 131
Re: ENS: small gap in 457
Hi George
Defnitely get another opinion although I am more inclined to agree with your own Agent. The legislation is quite clear on this - it states you must be employed full-time in the same occupation to that of the nomination, for the whole 2 year period ending immediately prior to the visa application - and at least the last year for the sponsor in the sponsored position.
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The refernce should be to 856.213(b)(iii)(B)
In any event the policy advice is not helping with your predicament in that it is saying that breaks like yours are not generally accepted and implies only paid leave breaks would be OK.
So it is up to the Processing Office's policy on whether to enforce the criterion strictly or cut you some slack - so only they can give the green light but I suspect you may have to wait until you have done 2 years with your current employer because of this period of unemployment.
Regards
Defnitely get another opinion although I am more inclined to agree with your own Agent. The legislation is quite clear on this - it states you must be employed full-time in the same occupation to that of the nomination, for the whole 2 year period ending immediately prior to the visa application - and at least the last year for the sponsor in the sponsored position.
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The refernce should be to 856.213(b)(iii)(B)
In any event the policy advice is not helping with your predicament in that it is saying that breaks like yours are not generally accepted and implies only paid leave breaks would be OK.
So it is up to the Processing Office's policy on whether to enforce the criterion strictly or cut you some slack - so only they can give the green light but I suspect you may have to wait until you have done 2 years with your current employer because of this period of unemployment.
Regards
Have any female applicants ever challenged the 'no career breaks' clause on sex discrimination grounds? (as maternity leave would obviously be unpaid leave no matter how short a time)
Jul 25th 2009, 10:50 am
#12
Just Joined
Thread Starter
Joined: Jul 2009
Posts: 5
Re: ENS: small gap in 457
Hi George
...
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The reference should be to 856.213(b)(iii)(B)
...
...
PAM is misleading on this as it references a part of the legislation that does not apply:
Unpaid leave
To satisfy clause 856.213(b)(i)(B), the applicant must have been employed and actively performing the duties for their occupation for at least the two years immediately prior to making the visa 856 application.
Career breaks, periods of unemployment, or unpaid leave cannot generally be counted as part of the two year period.
The reference should be to 856.213(b)(iii)(B)
...
Thanks
George
