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I’ve left my employer, what does this mean for my TSS visa?

By January 26, 2020October 10th, 202126 Comments

australian resident visa

There are a number of reasons for employees to leave their employers, both voluntarily and non-voluntarily. For individuals on Temporary Skill Shortage (TSS) Subclass 482 visas, there is an additional layer of complexity due to certain visa conditions applicable.

In the backdrop of German retailer Kaufland’s withdrawal from Australia, we discuss the general implications of a TSS visa holder leaving their employment, and what options may be available to them.

What visa conditions are applicable to me?

All TSS visa holders are subject to condition 8607 which, amongst other things, requires the visa holder to:

  • not cease employment for over 60 consecutive days;
  • work only in a position in the nominating employer’s business (or an associated entity) – unless one of limited exempt occupations.

What happens when I leave my employer?

Once a TSS visa holder ceases employment with their sponsoring employer, the sponsoring employer has an obligation to notify the Department of Home Affairs (Department) of that individual’s cessation.

After the 60-day period, the visa holder would be in breach of condition 8607.

What happens if I breach my visa conditions?

In circumstances where an individual is in breach of their visa conditions, their visa is liable to cancellation.

Typically, when the visa holder is in Australia, the Department would first contact the individual to advise them that they are considering cancelling their visa. Where an individual is outside Australia, the Department may cancel their visa without notice.

Does this mean that I should leave Australia within 60 days of ceasing employment?

Not necessarily.

Where a TSS visa holder can find another employer that is willing to sponsor them, the new employer is able to lodge a TSS “nomination transfer” to transfer the sponsorship of their visa to their business. This would enable the visa holder to not be in breach of their visa conditions.

Where a TSS visa holder is unable to find another employer that is willing to sponsor them, they would need to either:

  • depart Australia;
  • apply for another visa; or
  • risk breaching their visa conditions (and having their TSS visa liable for cancellation).

Although the Department do not necessarily always contact an individual immediately after the 60 days permitted by the TSS visa to arrange for cancellation, a failure to comply with visa conditions may be considered as part of future visa applications.

What other visas can I apply for?

This depends on your personal circumstances and your options can vary greatly.  We recommend that you speak to a professional to assess what options may be most suitable for you.

In the first instance, feel free to review our services page to read more about the available options.

Next Steps

Hannan Tew Lawyers have advised both businesses and individuals in relation to the cessation of employment of TSS visa holders.

Hannan Tew have advised businesses who have had to let staff/employees go by way of poor performance, or in situations where overseas businesses have closed their entire Australian operations and made staff redundant.  Hannan Tew have also advised countless individuals who have left their former employers on visa pathways and planning.

The most suitable pathway is individual and circumstance specific and you should consult with a professional about what may be the best options for you.

If you’re an individual who has recently left their employer, please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 for a discussion.

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

Author Jordan Tew

Jordan is one of less than 50 lawyers who are Accredited Specialists in Immigration Law by the Law Institute of Victoria, and less than 100 nationally. Accredited Specialists undergo a vigorous assessment process, and make up about 1% of all registered migration agents.

More posts by Jordan Tew

Join the discussion 26 Comments

  • ronilo villsarosa says:

    my visa is Tss 482 midstream , im 49year old , I have 24months working to my previous Company in Perth now Im leaving here in Melbourne Victoria , my wife is 44yrs old, my daughter is 7 and 3 . I want to apply for PR , what option would you recommend to me or any visa for me .

    thanks.

    • admin says:

      Hi Ronilo,
      Your age is a challenge but the easiest way to PR might be for you to find a new sponsor and work with them for 3 years at above the FWHIT.
      Feel free to contact us at [email protected] to discuss your situation in more detail.
      Kind regards,
      Hannan Tew

  • Sonali Vaidya says:

    I am on the verge of changing employer, I have got a new sponsor but they are in the process of labour market testing. What happens if I resign and sit home until the transfer of nomination comes through? Will that be a breach?

    • admin says:

      Hi Sonali,
      Once you have ceased work you ordinarily have 60 days in which to find a new sponsor. You can stay home during this time, but you can’t work for any other employer.
      Ideally your new nomination is approved before that 60 day period, and once it does, you can commence work with your new employer. If it doesn’t, you would technically be in breach, but pragmatically the Department is unlikely to take steps to cancel your visa if they can see a nomination transfer is being processed.
      Let us know if you require our assistance, otherwise good luck!
      Hannan Tew

  • Jay says:

    Hello I need to go back to my county so I resign my job and I was 482 visa holder just yesterday company canceled the visa. I was chef role in 482 visa and head chef undetstand my current situation. However he needs to me work 2 more weeks. My visa has been canceled and I received email that I can stay in Australia for 60 days. Within 60 days can I still legally work?

    • admin says:

      Hi Jay,
      If your visa was cancelled you’d usually be on a Bridging Visa E without work rights.
      If its just a case that your employer has notified the Department of a cessation date, the situation might be different (your employer could write to the Department to advise that the situation is a different date).
      Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

  • Elizabeth says:

    Hi. I am currently on a 482 visa and have my husband as a dependent. I would like to cancel my current visa, if I do so what other visa me and my husband can apply for without leaving the country? And Just to make sure that all the cost that we spend on my 482 visa will not be refunded is that correct?

    • admin says:

      Hi Elizabeth,
      There are many visas you can apply for onshore depending on your particular circumstances (see here).
      If you seek to stay for a short time, the most likely ones are the Visitor or Subclass 408 (COVID-pandemic stream) visas.
      The cost you spent on your 482 visa is also unlikely to be refunded.
      Feel free to contact one of our lawyers at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

  • Paula says:

    Hi, I have the 482 visa medium term (4 years), If I change employer, does the 03-year period to apply for the PR start again from 0 or continue from where it was?

    • admin says:

      Hi Paula,
      Thanks for reaching out.
      If you move to a new employer, your 3 year eligibility under the Temporary Residence Transition Stream restarts. However, you can still apply for PR directly through Direct Entry (if you have a skills assessment and an overall 3 years of experience).
      Feel free to contact us at [email protected] if you’d like our assistance.
      Kind regards,
      Hannan Tew

  • Sam says:

    Dear Hannan

    Thank you for a very insightful post. I’m hoping you would be able to give guidance on my current situation.

    I’m on a TSS 482 which will expire 8 January 2022. My Australian de factor partner and I will submit an application for the 820/801 partner visa within a few weeks.
    I really want to leave my current employer due to workplace issues. I’m considering handing in my resignation on Friday 15 October 2020. With 30 days notice for my resignation + 60 days period by the Department (total of 90 days) this will then take me to the 13 January 2022 and past when my 482 would naturally expire.

    My question is therefore: do you see any issues with me resigning before my tss expires? My concern is whether there is a bridging visa I will be granted until the 820 is processed – and whether this bridging visa would make me in breach of the original work requirements of the TSS to remain working for my sponsored employer?

    Thank you in advance for your reply.

    All the best,
    Sam

    • admin says:

      Hi Sam,
      Thanks for reaching out. Assuming you lodge your Partner visa prior to your visa expiry, those dates check out.
      The main thing to look out for is that you don’t cease work for more than 60 days whilst holding a TSS visa. On 9 January you’ll move onto the BVA which will have unrestricted work rights.
      Feel free to email us at [email protected] if you have any other questions.
      Kind regards,
      Hannan Tew

  • Anupama says:

    Dear Hannan,

    Thank you for the useful post.

    I am currently on a 482 visa (Medium Term) which expires in July 2022. I wanted to change the employer due to better career opportunities with another new employer. Furthermore, I was offered a new post with a new employer, and they had lodged a nomination for a different post. As I was advised that it will just be a nomination transfer, I had resigned from my previous employer to join the new employer. However, I got to know that I have to apply for a whole new visa, as it is for a different post after resigning. I have already submitted my new visa application, and it has been about 45 days since I have left my previous nominating employer. Given the current situation of COVID restrictions, I cannot arrange visa health assessment immediately. Due to this, it is highly unlikely that my new visa application will get finalised within the given 60-day period. I was granted a bridging visa, which will become active only after July 2022.

    If my visa application does not get processed within 60 days of me ceasing employment with my previous nominating employer, does this mean I have breached condition 8607?

    I would appreciate if you could advise me to regard this. Thank you.

    • admin says:

      Hi Anupama,
      Yes, technically if you don’t get your new visa approved within the 60 day period you will have breached the “must not cease work” condition.
      However, the standard practice is that before any cancellation the Department would write to you without a “Notice of Intention to Consider Cancellation” where you could provide an explanation as to why your visa should not be cancelled (including that you have found a new employer and delays are due to the visa process).
      Feel free to email us at [email protected] if you would require specific advice.
      Kind regards,
      Hannan Tew

  • Dylan says:

    Hi i want to resign from the company and go home to my country i havent taken leave for two years.Will they pay me my leave and more if i resign.Thank u.

    • admin says:

      Hi Dylan,
      Your leave entitlements depend on your contract so you should check that.
      From an immigration point of view, once you cease working your employer will notify the Department and they will take steps to cancel your visa.
      Feel free to contact us at [email protected] if you have specific questions.
      Kind regards,
      Hannan Tew

  • Carlos says:

    after 11 months of waiting Grant my visa last january 9, 2019 while offshore but my employer suddenly change mind saying my spot has been replaced so they can no longer hire me until now im still here i my country then i found a new employer after almost three years past do you think i can still use my visa i still have 13 months on my visa left..if ever they lodge my new nomination is there gonna be a conflict on that? Thanks

    • admin says:

      Hi Carlos,
      It’s likely that your old visa from 2019 was cancelled by now (you should do a VEVO check to determine).
      If not, you may be able to lodge a new nomination if you have found a new employer since you never commenced work with your last employer.
      Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

  • Mercy sims says:

    Hi, I hold a DAMA VISA 482 under labour agreement as a childcare worker. I am not happy with my current employer and want to transfer to another employer that just got their 482 labour agreement approved. How is the processing done? Do I need to apply for another visa or I just need to do the nomination? Kindly advise
    Reply

  • Paige says:

    Hi, looking for an answer re: travelling overseas while a visa is being transferred from one employer to another. I’m on a 482 and the border just opened so hoping to go home for Christmas. However, the earliest my new employer could apply for the transfer would be after labour market testing on 17 December (and I’d finish up at my current employer on that same day – planning to fly out on the 18th). Is it okay to be away while the visa is under review? I know I have 60 days to find a new employer once I resign, but can I be overseas in that time? I started on a 457 in 2017, then to a 482 in 2019 and have just renewed the 482 in October this year. Thanks!

    • admin says:

      Hi Paige,
      It is okay for you to be overseas during the nomination transfer application but risky.
      This is because if there are delays to processing and you are overseas, the Department could technically cancel your visa after the 60 day period.
      Kind regards,
      Hannan Tew

  • Maurice says:

    Hey,

    I’m on a 482 visa but unfortunately I was sponsored under a different profession to my qualifications / experience and I can’t get PR as soon as I’d like because my experience doesn’t count under my nominated profession.

    I also wish to change employer.

    What is the easiest way to get PR as quickly as possible while changing employer?

    Also, is there an interim visa (maybe a student visa or something) that I could get to give myself more time than the 60 days?

    Thanks,

    Maurice

  • Chen says:

    Hi,

    I’m an Australian Citizen, my partner is currently on 482 Visa, He wants to resign to his current Job due to irregular schedule, work location, and job description issue. We would like to know if we can apply for a partner visa 820/801 and if He will resign to his current job considering still having a 482 visa which will be expired on march 2023, . Whats the best option we can do. if He resign to his current job, and if he’ll hold a BVA visa (partner visa) and current 482 as above expiration. Can he find another job? while on this situation.

    • admin says:

      Hi Chen,
      Thanks for reaching out.
      Even if your partner lodges a Partner visa they will still be holding a 482 which means that they should continue working with their former employer (until the BVA comes into effect in 2023).
      The best option might be to find a new employer and undertake a nomination transfer first.
      Feel free to contact us at [email protected] if you’d like to discuss further.
      Kind regards,
      Hannan Tew

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