Company restructure, including being taken over, merged, acquired, or ceased to operate. This, from a migration law perspective, might have significant impact on the company employees who are holding visa subclass 482/457, and also on the eligibility to nominate them for a permanent visa subclass 186 – Temporary Residence Transition stream.
Company Restructure’s impact on TSS/ 457 visa holders
The TSS/ 457 visa holders must only work for the employers who are listed in the most recent nomination approved and linked to their visas.
Where there are changes to the business arrangements of the sponsor, it is possible that the visa holder may find themselves working for a new employer, and therefore, they may be found breaching condition 8607 of their visa.
If a sponsor changes its business name or structure but retains its original ABN, this may not be regarded as a change of sponsor because the legal entity of the sponsor has potentially remained the same. As a result, a subclass 482 holder could continue to work for the business and not breach 8607.
The situation may, however, be different if a sponsor:
- is taken over by another business and registers under a different ABN; or
- is amalgamated into a business and:
- adopts the subsuming business’ ABN; or
- retains the existing ABN.
The relevant consideration here is whether the legal entity that the TSS visa holder is working for has changed.
In summary, if the company restructure that leads to an establishment of a new legal entity, that new legal entity, should they wish to retain the employees who are TSS/ 457 visa holders, must lodge a new nomination for these employees. The employees may need to suspense their work until the new nomination is approved.
Company Restructure’s impact on visa 186 – Temporary Residence Transition stream (TRT)
One of the requirements for a nomination for visa 186 TRT is that the nominees for a 186 nomination have been employed in the position in relation to which they hold the subclass 457/TSS visa for a total period of at least three years the 4 year period immediately before the nomination application was made.
In assessing whether the nominees meet this requirement, the Department of Home Affairs takes into account relevant factors, including the employer, location of the position, salary, position description and duties. In practice, nominators will usually have been the employer for the entirety of the required period.
In case the company is restructured during the required period, which then nominates the visa holder, and where the visa holder continues to work in the same position (e.g. same duties, working conditions and/or management structures, albeit the legal name of their employer has changed) in the business. In that scenario, the criterion is met if the nominee has worked in the position for the required period, regardless of the fact that the employer has changed.
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