Choice

Hi there,

Just hoping someone might be able to help me as I am struggling to get through to anyone at the Dept of Immigration. I have an employee on a 457 visa who has just discovered that his mum is seriously ill in the UK. He would like to go back to the UK to support her throughout her illness whatever path that may take, but he would like us to hold his job open if at all possible. He is anticipating being away for up to 6 months.

We are happy to hold his job for 6 months, but I am not sure if him being on unpaid leave would still meet the requirements that he is still employed by us. Also I imagine he may need to work whilst in the UK to support himself, so I'm really not sure if he can be classed as employed but on unpaid leave here, if he is also working in the UK. Anyone seen this situation before?

Thanks!

spouse of scouse

Hi, the following is from the 457 visa info booklet on the DIBP web site. Doesn't look promising, although the condition doesn't specifically mention unpaid leave.

Condition 8107
Condition 8107 requires that as a primary holder of a subclass 457 visa you must:
• work in the occupation for which you were nominated
• commence that work within 90 days of arrival in Australia
• obtain any registration or licensing necessary to perform your occupation in Australia
• work for the sponsor, or an associated entity of the sponsor, who nominated the position you are
working in, and
• not cease employment for a period of more than 90 consecutive days.
You are considered to have ceased employment when either you or your employer gives notice of intention to cease employment and the date of the notice of intention to cease employment has passed.
If more than 90 consecutive days have passed since the date in the notice of intention to cease employment, you may be in breach of Condition 8107 and may have your visa cancelled.
In the event that you abandon your employment, or are absent without leave, you may be considered to have ceased employment.

TeeTMI

From the information you have provided and the potential scenario you have a number of issues relating both to the visa conditions and your obligations as a sponsor.

Choice

Thanks for the replies. When I finally got through to the Department of Immigration, they said that so long as we were formally holding his job open for him, he was fine to go back to the UK and that he could even work while he was over there. We would be replacing him with a casual staff member, so can effectively accommodate his return as required. Obviously he has to return before his 457 expires.

Bermudashorts

Well the people answering the phones at the department are renowned for giving out incorrect information. Somebody above has posted a link that indicates the employee cannot cease employment for more than 90 days, this sounds a more likely scenario to me. I would get a second opinion, from a migration agent, not a helpline, they are not there to provide advice.

stuie83

This thread is from 2009 so may/ may not be applicable: http://britishexpats.com/forum/showthread.php?t=607695
They make reference to employers contacting the business monitoring unit to seek permission for extended leave.

The Bloke

From what I read, the person is not "ceasing" work, but taking a "leave of absence" - totally different meanings, but you are right, speaking to a qualified migration agent would be advisable

spouse of scouse

Yes, I know what the different terms mean but thanks anyway.

Pollyana

As this was posted n the thread by a registered and respected agent, I would be inclined to think that the OP needs to get professional advice about who in DIBP to speak to (not the Helpline ) and how to proceed in order to stay within the rules of their visa.

JAJ

I will add one additional factor.

It's important to consider things not only in terms of staying compliant with the terms of the existing 457 visa, but also in terms of qualifying for permanent residence (if that is the intention).

This is quite an unusual situation, and it may be possible to work within the regulations provided that everything is documented correctly. Or it may not. Either way, I'd strongly recommend advice from a migration agent who a. handles a lot of 457/employer permanent resident cases, and b. is comfortable doing research and and handling a case that's one-off in nature.

Separately, the employee should also consider how a 6 month stay back in the U.K. may impact his U.K. and/or Australian tax liabilities.