An insight into Condition 8107 on the Subclass 457 Visa

When an applicant is granted a Subclass 457 visa, the visa can be subject to a range of conditions, one which is Condition 8107.

It is described in the Migration Regulations 1994 as ‘ the visa holder must not cease to be employed by the employer in relation to which the visa was granted, must continue to work in the nominated position, and must not engage in work for another person or for themselves while the holder of a subclass 457 visa‘.

In plain English, this means that the main applicant of a subclass 457 visa must only work for the nominating employer in the occupation that was nominated in the application.

An example of this is:

If the main applicant of a 457 visa was employed as an Electrician for ABC Pty Ltd, that visa holder must only work as an Electrician for ABC Pty Ltd and cannot undertake any other work for themselves or anyone else.

Exemptions

However, some occupations and situation allow for an exemption of this condition;

  • If the visa holder is employed as a General Manager or as a Medical Practitioner
  • If the visa holder works for an ‘associated entity’ of the original sponsor, such as a subsidiary, or parent company
  • If the visa holder is required to complete a ‘notice period’ with a previous employer

Ceasing Employment on a Subclass 457 Visa (as of 19 November 2016)

If a visa holder is terminated, or leaves the sponsoring employer then they must not cease employment for more than 60 days. Ceasing employment by more than 60 days will result in a breach of Condition 8107 and may result in visa cancellation.

60 Day Limitation 

If a visa holder ceases employment, the 60 days that is provided is designed to allow the visa holder to find an alternative sponsor that is willing to sponsor them in the same occupation. If a sponsor is found, the new sponsor must lodge a new 457 nomination, and have that approved before the 457 visa holder can commence work with the new sponsor. It is important that the time from leaving the previous employer, and the time it takes to have the new nomination approved, is not more than 60 days otherwise that would result in a breach of Condition 8107.

If a subclass 457 visa holder is terminated, or leaves their original sponsor and is unable the find a new sponsor the visa holder must make arrangements to depart Australia prior to the 60 day limitation, or seek to apply for an alternative visa.