There is no enforceable provision that stops you from leaving your employer if you are on a Subclass 186 visa.
If you applied through the Regional Sponsored Migration Scheme (Subclass 187), the answer would be different.
Please note: Keystone Visa and Migration Services are a Migration Agency and this has been written by our Registered Migration Agent. We are not employment Lawyers or Employment Specialists and do not proport to be. We have written this blog as a means to explain the requirements and obligations of employers and employees for the subclass 186 visa with respect to the Migration Act and Regulations.
When you lodged your subclass 186 ENS application, you need to have demonstrated an employment contract signed by yourself and your sponsor. Further, it is required to be a minimum two-year duration on offer. That contract is a civil agreement between yourself and the employer.
It is important to note that the Department of Home Affairs has nothing do with any oversight of that contract. In addition, they have no control over whether the contract was honoured or dishonoured after the visa was granted.
The contract serves no purpose other than to demonstrate to the Department of Home Affairs that the employer has the intention to offer the employment for two years, and that the visa applicant intends to remain employed by the sponsor for two years.
At times, the employer or employee’s intentions changes, resulting in the contract being terminated, or the employee resigning. The Department has no control over this change of circumstances.
The most important thing is that the contract is between the two parties, and the sponsored employee has the right to terminate that agreement under the usual Fair Work Australia standards at any time.
In addition, the employer has no right to make demands that you remain working for them for the two-year period under the contract. It can only be a request.
Further, the employer has no requirement to keep you employed for that two years, as all employment contracts fall under the oversight of Fair Work Australia.
In essence, there is no condition on a 186 visa that says you must remain with your employer for 2 years. Similarly, there’s no condition that your employer must keep you for 2 years either.
To be safe, you must adhere to the following:
• You must commence employment with your employer within 6 months of being granted the visa; and
• Once you have commenced employment, and before considering to leave the job before 2 years, have made a genuine attempt to stay in the position with your employer.
It is important to check your employment contract to adhere to any termination clause in relation to the period of notice required if the working relationship is to end.
It is also important to be aware that if you applied for the 186 without a legitimate intent to work for your employer for the full 2-year period, and it can be proven that the application was made with fraudulent or misleading assertions, then you can potentially have your visa cancelled.
Nevertheless, if the application was made with legitimate reasons, but the employee/employer relationship has ended, then your 186 will continue without any problems. As long as your employer and you are agreeable if things end, then this will be fine.
Once your subclass 186 visa is granted, you have full permanent residency rights. There is no enforceable requirement that prevents you from changing your employer or your role, however the Department can cancel if they believe you provided false or misleading information on your application.
In conclusion, unless you have provided false or misleading information, the Department is unlikely to cancel your visa if you change employers after a given time employed by your Nominating employer.
Please note: If you would like further information regarding leaving your employer whilst on a Subclass 186 visa, with respect to your own particular circumstances, consultation fees may apply.
Note due to many enquiries we have added this section:
We often have clients contact us to see if they can leave their employer after a very short period of time having held the subclass 186 visa. We would advise that this may seriously be seen as a visa application that was lodged on fraudulent or misleading information, and either the employee had no intention of working for the two years, or the company was complicit in applying for a visa to secure a permanent resident outcome only. Be aware that both the employer and employee sign on the Nomination and Application a commitment that they will offer the employee at least 2 years employment with no restrictions from this being extended, and the employee commits that they intend to work for 2 years with the employer, and this is the basis upon which the visa was determined. We would not recommend leaving your employer shortly after receiving your visa.