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457 / TSS visa holders in the time of COVID: A visa holder’s (rough) primer

By March 30, 2020April 6th, 2020No Comments

In response to the COVID outbreak, governments all around the world have clamped down on borders in order to stem the transmission of the virus. Australia is no exemption. Having a well-developed immigration program means that failure to comply with obligations (for both visa holder and visa sponsors) can have significant ramifications. Despite a shifting immigration landscape, this article attempts to provide some clarity on what can and cannot be done (noting that this article is current as at 30 March 2020).

For organisations and employees who are using 457 / TSS visas, it is important to be aware of the various visa conditions and sponsorship obligations designed to ensure continuity as well as a balanced fairness between the employee, the sponsor and the Australian labour force.

This article focuses on the visa holder side, but we’ve also written a corresponding article for employers (see here).

1. What are the considerations?

Generally speaking, a 457 / TSS visa holder must be aware of three things:

  1. the expiry date of their visa
  2. that they must work only in the occupation (the nominated occupation) nominated by the sponsor and
  3. that they must not cease employment for more than 60 days

2. What does it mean to cease work?

A 457 / TSS visa holder is considered to have ceased employment if the employer, or employee, gives written notice that employment will cease and that date has passed. That is clear enough. But in the time of COVID-19 where shut downs and restrictions wreak havoc with business operations, a sponsor may seek to renegotiate terms of employment. With respect to 457 / TSS visa holders, it is worth considering whether or not visa holders would be in breach of their visa conditions by agreeing to work part-time or seek leave without pay (LWOP).

LWOP

Part time work

TSS visa holders on unpaid leave (e.g. study or sabbatical leave, recreational or holiday leave without pay, sick leave without pay, maternity and/or paternity leave and / or  parental/carer/personal leave), are not considered to be in breach of condition 8607 solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be employed by the sponsor (although not working or receiving a salary). Under policy, this period generally should not exceed 3 months unless:

  1. the sponsor is obliged to provide the leave under Australian workplace laws (e.g. in connection with maternity leave) or
  2. exceptional circumstances apply

For further information, it is crucial you review the sponsorship obligations in the corresponding employer page.

While a TSS visa holder is not considered to have ceased work if they commence part-time work arrangements, sponsors must ensure that they are meeting their sponsorship obligations where part-time arrangements are put in place.

For further information, see sponsorship obligations in the corresponding employer page.

 

3. What are the considerations if you are currently overseas?

From 9pm AEDT 20 March 2020, only Australian citizens, permanent residents and New Zealand Citizens who are usually resident in Australia are permitted to travel to Australia. Immediate family members of the aforementioned and temporary visa holders can only enter if they obtain an exemption prior to travel. You can find more information in relation to travel restrictions here.

In summary, the Commissioner of the Australian Border Force (ABF) may consider an additional exemption in relation to the travel restrictions currently in place for:

  1. foreign nationals travelling at the invitation of the Australian Commonwealth Government for the purpose of assisting in the COVID-19 response or whose entry would be in the national interest
  2. critical medical services, including air ambulance and delivery of supplies, that regularly arrive into Australia from international ports
  3. persons with critical skills (for example, medical specialists, engineers, marine pilots and crews) by exception
  4. diplomats accredited to Australia and currently resident in Australia, and their immediate family
  5. case-by-case exceptions may also be granted for humanitarian or compassionate reasons

If you think you meet one of the exemptions, you can apply through here.

The following table then sets out the impact of various situations that could occur whilst you are offshore:

Retain employment

Cease employment

Visa expires

As long as you maintain your employment, your visa will remain valid until expiry and you can return to Australia once the travel restriction are lifted (or if you meet an exemption).

If whilst holding your visa your employer ceases your employment, you will have 60 days in which to find a new sponsor (or your visa is liable to cancellation and you will require a further visa to travel to Australia).

 

If you are outside of Australia and your visa expires, you would need to obtain a further visa to enter Australia. This can include:

  1. a TSS visa (see here)
  2. general skilled migration visas (see here)
  3. Partner visas (see here)
  4. Student visas (see here)
  5. Investor visas (see here)

If you need to return to Australia temporarily once travel restrictions are relaxed (for example to collect your belongings), you may consider applying for a Visitor (Subclass 600) visa. Generally speaking, you would need to demonstrate that:

  1. you genuinely intend to stay in Australia temporarily and
  2. you have adequate means to financially support yourself.

4. What are the considerations if you are currently in Australia?

Due to the current state of affairs, many businesses are shifting to remote working or even shutting down. Although working remotely is permissible on a 457/TSS visa the following table sets out the impact of various circumstances that could occur whilst you are onshore:

Retain employment

Cease employment

Visa expires

As long as you are in Australia and you can maintain your employment, you may remain in Australia for the duration of your current employer sponsored visa.

If whilst holding your visa your employer ceases your employment, you will have 60 days in which to find a new sponsor (or your visa would be liable to cancellation) or obtain a further visa.

 

If you are in Australia and your visa is about to expire, you need to ensure you obtain a further visa to remain onshore. In most cases, this might be as simple as a further TSS visa. However, this may not be possible if your employer chooses not to sponsor you.

In these circumstances, you can consider a number of visas which can include:

  1. general skilled migration visas (see here)
  2. Partner visas (see here)
  3. Student visas (see here)
  4. Investor visas (see here)

If you need to remain in Australia temporarily until travel restrictions are relaxed, you may also consider applying for a Visitor (Subclass 600) visa. Broadly speaking, you would need to demonstrate that:

  1. you genuinely intend to stay in Australia temporarily and
  2. you have adequate means to financially support yourself

The Department’s current temporary position is to apply the onshore Visitor visa policy expansively during the COVID crisis. It should be noted however, that Visitor visas do not have work rights.

Please note that whether any of the above can be considered will vary significantly depending on the specifics of the situation. Please speak to your Hannan Tew adviser prior to undertaking any of the above.

Next steps

Due to the fluidity of the situation regarding COVID-19 and Australia’s borders, the above should be seen as a guide only. We strongly recommend you speak to your Hannan Tew adviser if any of the above applies to you. Feel free to contact us by email at [email protected] or phone +61 3 9016 0484 for a confidential discussion.

THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION.

 

Mihan Hannan

Author Mihan Hannan

Formerly a Senior Associate in one of Australia’s most reputable immigration litigation and review practices, Mihan is solutions focused and well versed in all aspects of Australian immigration law. Mihan also has a subscription addiction, being obsessed with tools to improve the immigration work flow.

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