If you are an approved 457 standard business sponsor, you are legally required to notify the Australian Department of Immigration and Border Protection (“DIBP”) within 10 working days from when a 457 visa holder ceases employment with you. Failure to do so may result in an administrative sanction by the DIBP.
While this is one of the legal obligations of an approved sponsor, a notification of cessation of employment does not automatically or immediately cancel the 457 visa held by the individual. This is because 457 visas have a visa condition which allows visa holders to be unemployed for a period of up to 90 days.
The responsibilities of the employee
Within the 90 days following cessation of employment, the individual has to either depart Australia, obtain a visa to remain in Australia, or be employed by another approved 457 sponsor.
Where the individual departs Australia, they may wish to have their 457 visa cancelled as soon as possible for the following reasons:
1. To make a departing Australia superannuation payment claim with the Australian Tax
Office or their superannuation fund, or
2. To return to Australia as a business visitor or tourist on an ETA (Electronic Travel Authority visa). The option to apply for an ETA is only open to individuals who hold eligible passports, which include those from the US, Singapore or Japan.
After the individual departs Australia, the DIBP can cancel their 457 visa if they are satisfied that the individual has either requested cancellation of their visa in writing or has breached the visa condition of being employed by the sponsor.
In practical terms, unless the visa holder requests cancellation of their 457 visa, the DIBP usually takes several months, and in some instances more than a year, to cancel the visa as the DIBP has to consider the circumstances of each and every visa holder before deciding to cancel the visa.
Issues arising from non-cancellation
From time to time individuals who believe that their 457 visas have been cancelled are confronted by the fact that their 457 visa is still valid when they apply for an ETA to visit Australia, for example, for business reasons. In this instance they are unable to apply for an ETA as the DIBP system is not able to process ETA applications while a 457 visa is valid.
Similarly, an individual may not be able to access their superannuation after departure from Australia because their 457 visa has not been cancelled.
This can be frustrating to the individuals who wish to access their superannuation payments or to the Australian employer who may need the individual back in Australia on an ETA as soon as possible.
Sponsor advised to inform the employee
With this in mind, 457 sponsors may wish to advise the 457 visa holder at the time of cessation of employment that it is the employee’s responsibility to ask DIBP to cancel their 457 visa after they depart Australia.