Business Restructures for 457 and 482 Visa Holders

 
@markuswinkler

@markuswinkler

Is your company going through a business restructure? Do you sponsor 457 or TSS 482 visa holders to work for the business? If you answered ‘yes’ to both, then it’s important to seek advice from a Registered Migration Agent on how to minimise the effects these developments could have on the company’s business sponsorship approval as well as its sponsored employees.

Let's start from the beginning before taking a further look at the implications.

Business Sponsorship – 457 or TSS 482 Visa Holders

Primary 457/TSS 482 visa holders are sponsored by an approved Business Sponsor to work for them, or its associated entities, to fill a skill-shortage within their sector.

When taking on a sponsorship, a 457 visa or TSS 482 visa, both the business and the visa holder need to be aware of their respective obligations and visa conditions which can be impacted by a business restructure.

Business Sponsorship Obligations and Visa Conditions

Often, these developments are finalised without anyone realising the impact they can have on Business Sponsors and their sponsored employees:

Business Sponsorship Obligation

The Business Sponsor has a range of obligations it must comply with. One of them includes the requirement to notify the Department of Home Affairs (Immigration) of certain changes to its business structure, change in directorship, and even change of address.

The notification must be made to Immigration within 28 days of the event taking place and failure to comply may result in severe penalties that include fines, sponsorship bars, or even cancellations.

Visa Conditions

One of the visa conditions requires sponsored 457 visa and TSS 482 visa holders to work for their Business Sponsor or its associated entity. They are not permitted to work for any other employer without first having an application to transfer their visa submitted and approved by Immigration.

Furthermore, their sponsoring entity must be lawfully operating.

Business Restructures

Restructuring a company of any size is quite a common process and would include situations where the approved Business Sponsor:

  • Moves into liquidation, or ceases to operate

  • Is sold, acquired by, or merged with another company

  • Moves from a Trust to a Company or Partnership, or vice versa

  • Changes directors

These changes can start to impact the obligations and conditions outlined above.

Common Scenarios and Risks

Current 457 visa and TSS 482 visa holders

Where a Business Sponsor has:

  • Ceased to operate - the sponsored 457/TSS 482 employee has no lawfully operating sponsor and their visa becomes subject to cancellation

  • Been acquired by another business – depending on the structure of the original Business Sponsor, the sponsored 457/TSS 482 employee may be able to continue working in their current arrangement and may not be impacted by future prospects for employer sponsored permanent residence

In these instances, the employee needs to either do a 457 visa transfer or TSS 482 visa transfer to an approved Business Sponsor (i.e. the new business owner if there is one, or a completely new business), apply for a different type of visa, or depart Australia. If the TSS 482 is changing position, they may also need to apply for a new visa.

In some cases, the sponsored 457 visa or TSS 482 visa holder may be required to stop working until an application to transfer their visa is approved.

Seeking permanent Residence through the Employer Nomination Scheme (ENS)

There are two commonly used pathways to ENS permanent residence (PR):

  • Temporary Residence Transition (TRT) stream - typically, applicants must have held their 457/TSS 482 visas with their nominating employer for at least 3 years (full-time) before they can qualify. Until 18 March 2022, applicants covered by the Grandfathered provisions may qualify once they have been with the sponsoring employer, on their 457 visa, for at least 2 years (full-time).

    Applicants must be nominated for the TRT stream by their current Business Sponsor. If the original sponsor was sold and then ceased to operate, the applicant would be required to transfer their 457/TSS 482 visa across to the new business before they could apply for the TRT stream. Depending on the situation of the business closure and sale, they may need to restart the time spent with the new sponsor before qualifying for the TRT stream.

    Applicants are also required to have a direct employer-employee relationship with the business nominating them for TRT.

    There are some intricacies to a direct employer-employee relationship and whether the time spent on a sponsorship visa needs to restart so we strongly recommend contacting us for expert and relevant advice.

  • Direct Entry stream - applicants are not required to hold a 457/TSS 482 visa however, they must demonstrate at least 3 years’ relevant experience and, in most instances, a positive skills assessment (there are some exemptions).

    Applicants must also be nominated by an entity with whom they have a direct employer-employee relationship. 

A prospective ENS PR applicant could be prevented from lodging their application, or worse, have a lodged application refused, if the immigration piece surrounding the restructure of their original Business Sponsor isn’t managed carefully.

The refusal of an ENS PR application would result in forfeiting the paid government application fees, including the Skilling Australians Fund (SAF) levy. It could also affect the PR applicant’s immigration status and ability to re-lodge while in Australia.

Some Frequently Asked Questions

Some of the commonly asked questions by sponsored employees in relation to these scenarios include:

  • Wil I still be able to go from a 457 visa or TSS 482 visa to PR?

  • Can I start a business on a 482 Visa?

  • Can I start a business on a 457 Visa?

  • Can I sponsor myself for a 482 Visa?

  • Can a student visa holder start a business in Australia?

The short answer is “possibly” and given the strict conditions associated with these visas, we strongly recommend getting advice on your specific situation from a trusted Registered Migration Agent to ensure your ongoing compliance, and to reduce the risk of visa cancellation and ramifications on future visa applications.

We have extensive experience in this area so, contact us to discuss further.

Conclusion

This article discusses some of the common pitfalls that can be faced and does not constitute immigration advice relevant to your specific needs.

Whatever your situation, contact Astra Australia Immigration for recommendations relevant to your business restructure.

 

 
Josie Marr