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FAQ: Subclass 457 visa holders affected by the economic downturn

Australia's temporary skilled migration program aims to fill skill shortages within the Australian economy that cannot be filled from the local labour market. Due to the current economic climate, the number of skilled positions within the Australian labour market is decreasing. · I have a Subclass 457 visa and I have lost my job. What happens now? What are my options? Your Subclass 457 visa has been approved on the basis of sponsorship by your former employer. If you have lost your job the basis for the grant of your 457 visa no longer exists. If this occurs there are 3 options available to you: o The first option is that you find another employer who is willing to sponsor you and apply for another Subclass 457 visa to work for that new employer. o The second option is that you apply for another type of substantive visa that you may be eligible for. For example, if you wished to study, a student visa, or if you wanted to have a holiday before returning home, a visitor visa. o The third option is that you leave Australia. If you choose this option, you must depart Australia within 28 days, unless your visa expires before that time, in which case you and your dependants must leave Australia prior to the expiry of your visas. If your circumstances prevent you from taking one of these options within 28 days, you should contact DIAC by phone on 131 881 or go to your nearest DIAC office as soon as possible and an officer will discuss the situation with you. · Is there any chance of extending the 28 days? (kids are in school... have exams in April, was laid off in February) In general you must, within 28 days of your employer terminating your employment, do one of the following: o find another employer who is willing to sponsor you and apply for another Subclass 457 visa; o apply for another type of substantive visa; o leave Australia. If your circumstances prevent you from taking one of these options within 28 days, you should contact DIAC by phone on 131 881 or go to your nearest DIAC office as soon as possible and an officer will discuss the situation with you. · How long do I have to depart? If you choose to depart Australia you should do so within 28 days from the date that your employer informs DIAC that your employment has ceased. If your circumstances prevent you from departing Australia within 28 days, you should contact DIAC by phone on 131 881 or go to your nearest DIAC office as soon as possible and an officer will discuss the situation with you. · I heard my employer has to pay for my ticket back to my country. Is that true? How about my spouse and children? Your employer is responsible for ensuring that the cost of return travel to your home country for you (and accompanying family member/s) is met. The question of who ultimately bears responsibility for this cost would depend on the contractual arrangements between you and your employer.

If this matter is not specified in your employment contract and your employer has not agreed to pay your travel costs from Australia, you should contact DIAC on 131 881 and ask to speak with the Business Monitoring Unit. · What about paying for my possessions to be moved? This would depend on the contractual arrangements between you and your employer. DIAC does not require that employers pay for the shipping of personal possessions. Information on the employer's obligations under the Subclass 457 program can be found on the DIAC website at: http://www.immi.gov.au/skilled/skilled-workers/sbs/obligations-employer.htm · My employer said he will cancel my visa 28 days after I leave the job and I have to leave the country. Is that true? No, your employer cannot `cancel' your visa. If you cease to work for them they must inform DIAC of this. When you cease employment with your sponsor, you have the three options specified above. Generally, DIAC will issue a Notice of Intention to Consider Cancellation (NOICC) regarding your Subclass 457 visa towards the end of the 28-day period unless you have already applied for a new visa. The NOICC will allow 5 working days for you to provide a response. Following receipt of the response, a case officer will then make a decision whether or not to cancel your visa, taking into consideration the information provided in your response. · I heard my employer has to pay me for 28 days after I leave the job. Is that true? No. There is no requirement for an employer to pay a worker for 28 days after termination. Federal workplace law sets out specific rules and protections relating to the termination of an employment relationship. These rules relate to the entitlements a worker may be owed at the conclusion of their employment, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument in the case of redundancy. Whether an employer is complying with the Minimum Salary Level (MSL) requirements can be a complex matter, particularly when assessing this around termination of employment. It is important to note, however, that both termination payments and annual leave payouts count towards the MSL assessment. If you believe you have been underpaid your salary or you have outstanding entitlements, you should contact DIAC on 131 881 and ask to speak with the Business Monitoring Unit. You should also contact the Workplace Ombudsman Help line on 1300 724 200. Further information can be found at the website: http://www.wo.gov.au/asp/index.asp?sid=7407&page=right-rules · My Subclass 457 visa does not expire for another 2 years. Why do I have to leave the country if I lose my job? Your Subclass 457 visa has been approved on the basis of sponsorship by your former employer and your Subclass 457 visa is subject to the following conditions: o You must not stop working for the employer who sponsored you (that is, become unemployed or change employer) o You must not work in a different position other than the position that was nominated in the visa application

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You must not work for another person, or for yourself, while working for the sponsor.

Therefore, if you lose your job you cannot remain on your Subclass 457 visa and it will become subject to cancellation. This does not however stop you looking for a new employer to sponsor you. · Does my employer need to give me 28 days' notice before sacking me? How much notice must he give me? The employer needs to comply with all relevant laws relating to workplace relations and any relevant workplace agreements that are in place for your workplace. For information on employment conditions you should contact the workplace infoline by phone on 1300 363 264 or visit the Workplace Authority website at: http://www.workplaceauthority.gov.au/ · I tried but cannot get a new job so I understand that I have to leave Australia. How do I get my superannuation payments paid to me? Information on your eligibility and procedures for lodging a claim for superannuation benefits is available from: http://www.immi.gov.au/allforms/superannuation/ and http://www.ato.gov.au/super/ If you wish to discuss your superannuation, you can contact the ATO by phone on 13 28 61. ·

How do I lodge a tax return? For information on lodging an Australian tax return, you should contact the Australian Taxation Office (ATO) by phone on 13 28 61 or refer to the ATO website at: http://www.ato.gov.au/individuals

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My spouse is also here on my visa as a dependant. Can he/she work after I lose my job? Yes. Your dependent spouse can work until such time as your Subclass 457 visa is cancelled or a new visa subclass is issued. You may or may not have work rights on any new visa subclass that is granted.

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My spouse has qualifications. Can he/she look for a sponsor and get a Subclass 457 visa? Yes. He/she must however meet all Subclass 457 visa criteria to make a successful application.

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If I don't find another job can I stay here under a different visa, such as a working holiday visa or a tourist visa.? This will depend on the type of visa you apply for. You may need to be outside Australia to apply for certain types of visas. You will need to meet all the necessary criteria for the visa type for the application to be successful.

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I only arrived on my 457 visa two months ago and now I am sacked because my boss says the economy is not good. That is not fair. I left my home and family to come here. What can Immigration do for me about being sacked so quickly?

The Subclass 457 visa is a demand-driven program targeted to meet the specific needs of the Australian workforce for skilled workers. While demand for skilled overseas workers has been high in the past, due to the current economic climate, the number of vacant skilled

positions within the Australian labour market will decrease. This will impact on the ability of overseas workers to secure a sponsor or retain their current Australian employment. Federal workplace law sets out specific rules and protections relating to the termination of an employment relationship. These rules relate to the entitlements a worker may be owed at the conclusion of their employment, whether the termination of the employment was unfair or unlawful, and for the enforcement of entitlements due under an industrial instrument in the case of redundancy. If you believe the termination of your employment was unlawful you should contact the Workplace Ombudsman Help line on 1300 724 200. Further information can be found at the website: http://www.wo.gov.au/asp/index.asp?sid=7407&page=right-rules

· What if my employer buys my airfare and I get a student visa before I depart, what do I do about the ticket?

This is a matter between you and the employer.

· I know that I cannot claim my superannuation until my visa is cancelled. I am leaving next week, can you cancel my visa now so I can claim my super?

Information on your eligibility and procedures for lodging a claim for superannuation benefits is available from: http://www.immi.gov.au/allforms/superannuation/ and http://www.ato.gov.au/super/ You can only submit your application after you have left Australia and your visa has expired or been cancelled. If you wish to discuss your superannuation, you can contact the ATO by phone on 13 28 61.

· I don't think my employer has paid me all the money he owes me. What can I do?

If you believe you have been underpaid salary or have outstanding entitlements you should contact DIAC on 131 881 and ask to speak with the Business Monitoring Unit. You can also contact the Workplace Ombudsman Help line on 1300 724 200. Further information can be found at the website: www.wo.gov.au

· My employer refuses to pay me for a ticket back home. What can I do?

Your employer is responsible for ensuring that the cost of return travel to your home country for you (and accompanying family member/s) is met. The question of who ultimately bears responsibility for this cost would depend on the contractual arrangements between you and your employer. If this matter is not specified in your employment contract and your employer has not agreed to pay your travel costs from Australia, you should contact DIAC on 131 881 and ask to speak with the Business Monitoring Unit.

· What happens if I don't leave?

Generally DIAC will issue a Notice of Intention to Consider Cancellation (NOICC) regarding your Subclass 457 visa towards the end of the 28-day period unless you have already applied for a new visa. The NOICC will allow 5 working days for you to provide a response. Following receipt of the response, a case officer will then make a decision whether or not to cancel your visa, taking into consideration the information provided in your response. If your Subclass 457 visa is cancelled you will become an unlawful non-citizen and may be detained and removed from Australia.

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