Pollyana

Looking for advice for a colleague please guys!

Here on a temp spouse visa but the relationship is floundering and won't last the time needed for PR. He has a good job, and the company has no problem sponsoring him on a 457; then after 6 months they will sponsor for PR on an ENS visa. They won't sponsor for PR at once, that question has already been asked, and its not company policy.
The sponsorship side of the paperwork is all sorted and the application is ready to go but the problem is that he has discovered he can't apply onshore for a 457 whilst holding a Temp Spouse visa. One suggestion thats been made is that he goes offshore (probably NZ) and applies for a Business ETA, comes back on that and applies for his 457 as soon as he is back in Aus.

I've heard of at least one poster who has done this a couple of years back. Does anyone know if it will work still? Or is there an easier way of doing it without leaving Australia? Comments and suggestions welcome!

Susan Wareham McGrath

Hi Pollyana

Under Regulation 457.221 a person in Australia can apply for a 457 visa unless he/she holds a transit visa, or holds a visa that has Condition 8503 (No Further Stay) on it.

The temporary spouse visa (Subclass 820) never has that condition on it, so based on the info you've provided above, your colleague does not need to go offshore to apply.

As you'd be aware, many 457 criteria relating to the sponsorship / nomination / visa application changed on 14 September, so your colleague would need to make sure they are aware of those changes to ensure that the applications are prepared correctly.

For clarification, I should note that I'm assuming your colleague has a "skilled occupation" as defined by DIAC.

I hope the info above is useful.

Best regards
Susan

Pollyana

Well, what you've said agrees with what I thought originally. However when he tried to fill in the online 457 application, it came back with the response that his visa class (820) is not a substantive visa from which he can apply for a 457 - hence the problem. He can't continue with the online application as it simply won't let him....hence the confusion.......

............is it possible that it has to be a paper application and he just can't apply online? He's definitely eligible - skilled occupation etc, even after all the changes this week.

CrystalBall

He cant apply for a 457 because the 820 he is on is classed as a permanent visa. Once you have PR (even provisional) you cant get another visa as the department doesn't recognise that you would need one.

I think that if he makes a paper application, goes into the department, tells them that his relationship has died and he needs to apply onshore immediately so he can keep his existing work rights.

They might not even cancel his visa immediately, as its the sponsor who needs to withdraw the sponsorship. There are no conditions on an 820 so he cant be in breach of his visa conditions.

If he goes offshore and comes back on a visa with no work rights, his bridging visa wont allow him to work until the 457 is processed..... hope this helps

George Lombard

Hi Polly,

The provisional spouse visa wasn't a qualifying visa for the purposes of the 457 visa criteria in Schedule 2 of the Regulations until the changes on Monday, so yes your colleague was given correct information but now Susan's advice is correct.

This is a welcome change, the punitive treatment of people in poor relationships often created great hardship.

Cheers,

George Lombard

Pollyana

Thats fantastic news - and explains why last night I couldn'r find the list I found last week with all the substantive visas listed on it! Thanks guys, makes life a lot easier!

JAJ

If he is planning to go for ENS, he should make sure he has his skill assessment.

Is a state-sponsored 176 visa a fall back possibility if the employer reneges on ENS?

Pollyana

Skills assessment coming up shortly. I think it needs to be ENS due to age, but if this employer lets him down he has a couple of other job offers to fall back on. The only real problem was how to tide him over from the 820 to the ENS - 457 seemed straightforward to we tried to do the online application last week. Now I know why that wouldn't work we'll have another go.
Sods law really, I was trying to get the 457 done before the changes in case they adversely affected him - now I find out they've actually made it easier

JAJ

It isn't going to help here, but other people on a 309/820 can get to ENS or RSMS directly - without needing to switch onto a 457 - if they apply for the offshore ENS/RSMS (121/119).

Those with a skilled occupation should not plan to remain on a 309/820 visa for a moment longer than necessary.

Pollyana

Yep, thats becoming increasingly clear with the number of marriages that are collapsing leaving Temp Spouse/PMV holders stranded. Wouldn't help everyone - for instance I could never qualify for skilled migration - but for those that do its worth the extra time, skills assessment etc in the first place.