457 to Permanent Residency

You’re almost there! Permanent residency for you and the family is on the horizon and you would like to know the process and anything you should be aware of to get your residency granted. Never fear, as Migration Lawyers, Migration Agents and Migration Consultants in Brisbane, we are routinely discussing with clients the transition process from a Subclass 457 Visa to their permanent residency. So for this week’s blog, we hope to outline the main points and answer some common questions we receive on this particular issue:

How do I qualify for Permanent Residency?

Unfortunately, obtaining permanent residency is not an automatic process and you must physically apply for a visa which grants you permanent residency. Accordingly, having been with your employer for two years on a 457 visa (without any periods of unpaid leave) means that you are eligible to apply for either the Regional Sponsored Migration Scheme (Subclass 187) (for those in a regional area), or the Employer Nomination Scheme (Subclass 186) (for those not in regional areas).

Similarly to your Subclass 457 visa, both the RSMS and ENS can be broken into your part, “the Visa”, and the employer’s part, “the Nomination”. Importantly, in order to have your permanent residency granted, both stages must be approved.

Please note, the date you will become eligible to apply will be two years from when you commenced working with your employer after the grant of your 457 visa. Unfortunately, any time spent working before the 457 visa was granted (say for example on a Working Holiday or Bridging Visa) will not count towards the 2 years calculation.

What Are The Employer Requirements?

As part of their side of side of the application, employers will need to satisfy the following:

1.     Nominate the same, or similar, occupation you have been sponsored under your 457;

2.     They must certify that your position will be available for a further two years following the grant of your permanent residency;

3.     The terms and conditions of your employment are within market rate standards;

4.     They have continued to meet their sponsorship obligations, including legislated training benchmarks, for each year they have been an approved sponsor.

What Are My Requirements?

As part of your application, you will need to be able to evidence that you have worked for two years with your employer on your 457 visa. This is often evidenced by providing samples of your payslip’s as well as Tax Group Certificates and a signed Work Reference from your employer. You and your family will also need to meet Health and Character requirements by completing Visa Medicals and providing Police Clearances for each country you have lived in for 12 month or more in the last 10 years.

Things to Watch Out For

As Migration Consultants in Brisbane, some technical points that we assist clients with are as follows:

1.     The legal entity that nominates you for your permanent residency needs to be the same entity that sponsored you under the 457. Often, in large corporations where there are multiple associated entities, employees may be sponsored by one company but physically employed (paid) by another associated business. This is not an issue for the purposes of your 457 visa conditions, however for the purposes of meeting the permanent residency Nomination requirements, it is essential that the same entity used to sponsor you under the 457 is again used to sponsor you for your residency. In some instances, it may be advisable for applicants to transfer their 457’s to a different entity before submitting the permanent residency Nomination.

 

2.     As mentioned above, your sponsoring employer must be able to demonstrate that they have adhered to their 457 sponsorship obligations for each year they were an approved 457 sponsor. Namely, the employer will need to evidence that they have spent either 1% of their payroll in training Australian staff members, or 2% of their payroll into a recognized training fund. If the business has not satisfied these training benchmarks, or other sponsorship obligations, then there is a real risk that their Nomination, and in turn your Visa, will be refused. For that reason, it is critical that the correct figures be used in calculating the training expenditure of the business for the previous years.

If you need Migration Advice about transitioning from a 457 to permanent residency, then speak to a Migration Lawyer in Brisbane by giving us a call on 1300 MIGR8TE (644 788) or send your questions to enquiry@salvomigration.com.au.