# 186 TRANSITION STREAM: 1 year 457 primary and 1 year 457 secondary?



## JohnnyBlue (Sep 26, 2012)

Hi,
I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.

Following case:
- currently on a 457 primary since 1 year
-prior, on a subclass 457 as secondary

- worked in the same nominatED position with the nominatING employer for more than 2 years

Does it satisfy the two years requirement?
Immigration agents and the same 131881 provided me with different answers.

I would be happy to have opinions, but most of all, I would like to know the following:
- is there anything on IMMI website and Legislation that specify that a condition has not been met?
- has anyone been in a similar situation?
- in case of doubt the Case Officer "must" approve or decline the application?


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## bhushan8805 (Jan 5, 2013)

JohnnyBlue said:


> Hi,
> I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.
> 
> Following case:
> ...


hi jonny, thanks for posting this thread, I am also facing the same issue here. I worked for my employer for 2 years and right now I am on 457 since last 6 months. I am not sure whether I satisfy the two year criteria. Can you please post any update if you get more information about it. Thanks in advance.


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## MarkNortham (Dec 19, 2012)

JohnnyBlue said:


> Hi,
> I have posted a similar post in another thread, but I thought that this case would deserve a separate thread.
> 
> Following case:
> ...


Hi Johnny -

Would like to help - just wanted to confirm that the only difference between the two years of employer was that one of the years (the most recent year) you were on your own 457 visa, and for the prior year you were a secondary applicant on someone else's 457. But other than that, same position, same employer, same overall work responsibilities, same location, etc?

Sorry if this seems repetitive, but the law in this area is very specific, especially after DIAC tightened up the 2-year requirements language on 24 Nov 2012.

Thanks for any clarification - as you've seen, there's lots of opinions in this business, but the only ones that matter are the ones that can be 100% confirmed by the language migration law and regulations. The immi website is not considered law or regulations, or even policy, so that's not information you can absolutely depend on, especially you depend on that information and DIAC rules otherwise. Same goes for phone info from DIAC.

Please advise above and I can help further.

Bhushan - to address your query- you mentioned "6 months" - is your situation identical? Ie, only difference in work before 6 months ago was that you were a secondary on someone else's 457 visa?

Please advise - thanks.


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## bhushan8805 (Jan 5, 2013)

Hi Mark,
Thank you so much for the detailed information.
My situation is slightly different because I am single. I am working in the same company since last 2.5 years. First 2 years, i was on student visa and then I got sponsored before 6 months and hence now i am on 457. Just wanted to know whether I can file 186 by considering my total working experience.
Thanks man.


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## MarkNortham (Dec 19, 2012)

Hi Bhushan -

Thanks for the note. For the ENS (subclass 186) visa Temporary Resident Transitional Stream where it refers to 2 years on a 457 visa, the entire 2 years must be on a 457 for the same nominating employer and the same position, so only the 6 months under the 457 visa would count towards this. Additionally, the work must be full-time, and if you tried to claim full time work under a student visa, you'd be inviting problems as a student visa only allows 40 hours of work per fortnight (previously, 20 hours per week).

Sorry I don't have better news! But the good news is that in 18 months you should be able to apply for the Transitional stream 186 ENS PR visa if you meet the other requirements.


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## bhushan8805 (Jan 5, 2013)

No worries Mark. Really appreciate your prompt response and guidelines. Everything is now clear and does make sense. 
Have great day ahead mate.


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## jasp91 (Feb 25, 2013)

*186 Visa*

My situation is this I came to OZ in 09 and worked for the same employer until Jan 2012. I left on a Tuesday and started work the following day with a new employer and have now been there over a year.
Therefore I have had nearly four years of continuous employment on two different 457 visas.
I have contacted the migration agent our company uses and she is adamant that even without a skills assessment I can now apply for a 186 visa through the transition scheme.
Is this correct? I have been with my new company for 13 months.
She is a lawyer so I trust she may know something I am missing


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## Ausstart National (Aug 22, 2012)

@ Johnnyblue,

Might have been answered already, but don't thinkk you will be eligible. 
While, you have had thr 457 for 2 years, that is only 1 requirement. Another requirement is that you have been employed on the basis of your 457, for 2 years.

Your original 457 was provided on the basis of someone else's skills and occupation. On the basis of you current 457, then I would assume the occupation, and skills, and assessment was based on your personal skills and experience. I would imagine that's the case.

Hopefully, that can be understood.


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## Ausstart National (Aug 22, 2012)

jasp91 said:


> My situation is this I came to OZ in 09 and worked for the same employer until Jan 2012. I left on a Tuesday and started work the following day with a new employer and have now been there over a year.
> Therefore I have had nearly four years of continuous employment on two different 457 visas.
> I have contacted the migration agent our company uses and she is adamant that even without a skills assessment I can now apply for a 186 visa through the transition scheme.
> Is this correct? I have been with my new company for 13 months.
> She is a lawyer so I trust she may know something I am missing


Your agent isn't correct.


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## MarkNortham (Dec 19, 2012)

HI Jasp91 -

The company's agent is wrong (no offense!). There was a loophole that allowed this, but it was closed on 24 Nov 2012 with the regulation changes. The 2 years must be in the position (ie, with the current nominating employer) that you have the current 457 on.

Here's the updated reg 5.19(c)(3):

_(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a)(ii) has:
(I) held one or more Subclass 457 visas for a total period of at least 2 years; and
(II) been employed in the position in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave);_

A careful read reveals that the language "position in respect of which the person holds the Subclass 457..." is current tense - position referring to your current position with your current employer. It does not refer back to other positions held with other employers in any way. the language in (I) allows for 1 or more 457 visas during the 2 years, so the 2 years could be spread among multiple 457 visas for the current employer that add up to 2 years, over a period of 3 years.

The previous regs were not as clear on this, which opened up a bit of a loophole that some people got through. But DIAC figured this out and closed the loophole back in November with the above updated legislation.

Best,

Mark Northam


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## jasp91 (Feb 25, 2013)

*Unreal*

This is plainly ridiculous Mark, I changed jobs because my new employer recognised my skills and wanted me who cares if I haven't worked for two years. I have been in skilled work for nearly four years now and laughably they sold these changes as fast tracking to PR. 
surely with such a shortage of engineers somebody would look and say ok give it to him?


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## MarkNortham (Dec 19, 2012)

Hi Jasp91 -

I agree! If the point of the transitional stream is to provide opportunities to people who are "tested in the Australian job market" (which is what DIAC refers to in regards to this stream), then how is a person any more "tested" if he worked for one employer or 2 or 3 during their time here? If anything a person is MORE "tested" if he's worked for multiple employers at successively higher paid and higher profile positions, in my opinion.

I fear the recent "457 crackdown" by the new Minister (of course, with no details attached as of yet) is only the beginning of a wave of Union pandering anti-immigration stunts we'll see this year leading up to the election in September as the Labor government desperately tries to squeeze votes out at any cost. Our message to clients: get your applications in quickly before it gets any worse. 

Wish I had better news - but again, I agree with you 100%.

Best,

Mark Northam


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## jasp91 (Feb 25, 2013)

Thanks Mark.
So if a case fails because of this fact do you have to pay again at the later date or would they hold all your details and issue at the 2 year point?


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## MarkNortham (Dec 19, 2012)

Hi Jasp91 -

If the application is refused, you'll have to pay again at whatever later date you relodge a new application. No refunds, no holds, etc...

Wish I had better news! 

Best,

Mark Northam


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## jasp91 (Feb 25, 2013)

*That great then!*

Gets even worse then don't really know why I am giving my skills to Australia to be honest. All I want is to get long term stability for my family by commiting to stay in Australia and all they seem to do is reject people who are trying to drive the economy forward.


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## MarkNortham (Dec 19, 2012)

Just a though - if you have an employer who is ready and able to sponsor you for an ENS PR visa (186), have you investigated the Direct Entry route? Basic requirements are positive skills assessment, IELTS 6 or better in all bands, 3 years work experience (but doesn't have to be for nominating employer or even in Australia)...?


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## jasp91 (Feb 25, 2013)

*Yes*

Thats my biggest problem Mark I don't have a degree. In the UK I went down the professional route and not the degree route. I have a degree equivalent qualification not recognised by that hopeless Vetassess, therefore that is not an option.
Can a case officer have any common sense and look at cases individually or is it purely black and white?


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## MarkNortham (Dec 19, 2012)

Hi Jasp91 -

Can you email me your resume/CV at [email protected] - I'm just wondering if there's any alternative way to get the skills assessment visa RPL or another method that looks exclusively at your work experience, and not your degree(s). Would also need to know which ANZSCO occupation code you'd be applying under.

Best,

Mark Northam


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## geo_85 (Apr 16, 2013)

*Another scenario*

Hi all,

I have a similar type query.  By June, I'll have worked 2 years for the same employer in the same position. When I started, I was de facto on my partner's 457, and the company sponsored me for my own 457 in November 2011. I am trying to attain whether I'm eligible for the Transition stream in June, given that I will have held the same position with the same employer for 2 years (albeit on 2 different 457's). Can anyone provide an answer for this?

Any help would be extremely appreciated.


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## MarkNortham (Dec 19, 2012)

Hi Geo -

Can't say conclusively since I have not seen your documents and information, however employment time split over 2 different 457's, assuming same employer, same position should not be a problem. It is not a requirement that all of the 2 years must be on the same, single 457 visa.

Please advise if I can assist further -

Best,

Mark Northam


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## geo_85 (Apr 16, 2013)

Thanks Mark - just very cautious, as I don't want to be declined on a technicality. As I wasn't the primary holder on the first a subclass 457, I thought it may pose an issue, but the wording I find on the DIAC website states: "The Temporary Residence Transition stream is for subclass 457 visa holders 
who have worked with an Australian employer for at least the last 2 years in 
the nominated occupation and their employer wants to offer them a permanent 
position in the same occupation." - From this, I would say that I qualify, as there's been no gaps in my employment, and no change to my role; the only difference is that I went from being a secondary 457 holder to a first....


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## MarkNortham (Dec 19, 2012)

Hi Geo -

Your situation is a bit unusual as you were the secondary applicant on the 457(s) that were qualifying. 

Here's a question - when you were working for the employer that will sponsor you for the ENS, did that employer have a valid SBS "nomination" for your position? Or were you employed directly, without a nomination? 

Thanks,

Mark Northam


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## geo_85 (Apr 16, 2013)

Hi Mark,

I'm still working for the same employer in the same position, and I was hired directly by them in June 2011 for the position with no sponsorship arrangement in place (as it wasn't required, given my status as a secondary 457 holder).

It is one of those situations that's difficulty to obtain clarity on... and the DIAC aren't much help either.


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## JohnnyBlue (Sep 26, 2012)

MarkNortham said:


> Hi Johnny -
> 
> Would like to help - just wanted to confirm that the only difference between the two years of employer was that one of the years (the most recent year) you were on your own 457 visa, and for the prior year you were a secondary applicant on someone else's 457. But other than that, same position, same employer, same overall work responsibilities, same location, etc?
> 
> ...


Hi Mark,

bad news 

CO told me at 2pm that on his computer it shows that I have been on a 457 on this position for less than two years, and therefore my nomination will be rejected (together with my application). He told me he will give me 7 days of time to withdraw them as I can still get a "clean" record.

My understandng is that my alternatives are the Migration Tribunal ($+1500 + Migration Agent costs) or withdral my application so that my nomination fee ($540) will be refunded but I will still lose the $3050 from the application.

I do not think I can get a refund for the application: I could try to convince them that I lodged it incorrectly, and I wanted to use the "direct stream entry" but I am not sure that would work. I have only an email from Diac 2 days after I lodged the application (4 Oct 2012) with a link to the form 1023. On the phone they were suggesting me to use the correction form 1023 or to speak with the CO in regard to my concerns over the VISA.
But this is not possible anymore.


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## miky (Jul 5, 2013)

geo_85 said:


> Hi Mark,
> 
> I'm still working for the same employer in the same position, and I was hired directly by them in June 2011 for the position with no sponsorship arrangement in place (as it wasn't required, given my status as a secondary 457 holder).
> 
> It is one of those situations that's difficulty to obtain clarity on... and the DIAC aren't much help either.


Hi I am in the same situation! I worked for the same company under a 457 as secondary applicant for 2 years then my company sponsored me so now I am the main applicant of a 457.

According to the regulation (comlaw.gov.au/Details/F2013C00428/Html/Volume_3#_Toc360432122 )
I have to have been on a 457 for 2 years (checked)
I have to be the main applicant of a 457 at the time of the application (checked)
I have to have worked in the nominated occupation for 2 years (checked)
I have to have worked for my company for 2 years in the last 3 years (checked)

However I have been told that I have to have been the MAIN applicant of the 457 for 2 years prior the application.
Because English is not my first language, can you please tell me in the regulation where it states that?

MIGRATION REGULATIONS 1994 - REG 5.19
Approval of nominated positions (employer nomination)

(1) A person (a nominator ) (including a partnership or unincorporated association) may apply to the Minister for approval of the nomination of a position in Australia.

(2) The application must:

(a) be made in accordance with approved form 1395; and

(b) be accompanied by the fee mentioned in regulation 5.37.

Temporary Residence Transition nomination

(3) The Minister must, in writing, approve a nomination if:

(a) the application for approval:

(i) is made in accordance with subregulation (2); and

(ii) identifies a person who holds a Subclass 457 (Business (Long Stay)) visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

(iii) identifies an occupation, in relation to the position, that:

(A) is listed in ANZSCO; and

(B) has the same 4-digit occupation unit group code as the occupation carried out by the holder of the Subclass 457 (Business (Long Stay)) visa; and

(b) the nominator:

(i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 (Business (Long Stay)) visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

(ii) is actively and lawfully operating a business in Australia; and

(c) either:

(i) both of the following apply:

(A) in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 (Business (Long Stay)) visa identified in subparagraph (a) (ii) has:

(I) held one or more Subclass 457 visas for a total period of at least 2 years; and

(II) been employed in the position in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa for a total period of at least 2 years (not including any period of unpaid leave);

(B) the employment in the position has been full-time, and undertaken in Australia; or

(ii) all of the following apply:

(A) the person holds the Subclass 457 (Business (Long Stay)) visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72 (10) (d) (iii) (B) or sub-subparagraph 2.72 (10) (e) (iii) (B);

(B) the nominator nominated the occupation;

(C) the person has been employed, in the occupation in respect of which the person holds the Subclass 457 (Business (Long Stay)) visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

(d) for a person to whom subparagraph (c) (i) applies:

(i) the person will be employed on a full-time basis in the position for at least 2 years; and

(ii) the terms and conditions of the person's employment will not include an express exclusion of the possibility of extending the period of employment; and

(e) the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

(i) are provided; or

(ii) would be provided;

to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

(f) the nominator has met the training requirements that the nominator was required to meet under:

(i) paragraph 2.59 (d) or (e); or

(ii) paragraph 1.20D (2) (c);

for the purpose of approval as a standard business sponsor; and

Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that day.

(g) either:

(i) there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

(ii) it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

(h) the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.


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## jasp91 (Feb 25, 2013)

*Question on PR*

Can anyone answer a question please. I have a friend who has been in Australia for 4 years and has recently renewed his 457 visa.

However the new visa has a different occupation than the first one, will this cause a problem when applying for PR in October? He will have been with his current employer for 2 years at that point (Oct).


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## MarkNortham (Dec 19, 2012)

Hi Jasp91 -

Unless he has been working for 2 years with the current employer for the same position (and that position is the same as on the 457 visa he's been working under during this time), would strongly suggest he consult a migration agent on this one - the progression of his employment and details of his position(s) will need to be looked at carefully to see if the case can be made that he meets the regulations.

Best,

Mark Northam


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## pawandhir (Aug 12, 2013)

geo_85 said:


> Thanks Mark - just very cautious, as I don't want to be declined on a technicality. As I wasn't the primary holder on the first a subclass 457, I thought it may pose an issue, but the wording I find on the DIAC website states: "The Temporary Residence Transition stream is for subclass 457 visa holders
> who have worked with an Australian employer for at least the last 2 years in
> the nominated occupation and their employer wants to offer them a permanent
> position in the same occupation." - From this, I would say that I qualify, as there's been no gaps in my employment, and no change to my role; the only difference is that I went from being a secondary 457 holder to a first....


hii mate
i am in same story like you. 
Hii
I am on 457 visa from 10 dec 2011 on pre press trade person. But now on 1 June 2013 my employer is bankrupt. Court sell all machines by auction. So 1 other company who buy some machines from there sponsor me for same role. So now my question is " am i eligible for 186 visa in dec 2013? My new employer is ready for sponsor me for 186 visa.
whats the posstion on ur ENS 186? is you lodge your file?
waiting for rep.
Regards


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## MarkNortham (Dec 19, 2012)

Hi Pawandhir -

Assuming the new employer did not take over the old business and ABN of your previous sponsor, the time you put in working for the old sponsor would not count towards the 2 year requirement for the temporary residence transitional pathway for the ENS visa. Your new employer could look at sponsoring you for the Direct Entry pathway for the ENS visa if you qualified for this - primary requirements on the applicant side are 3 years work experience in the nominated occupation (for any employer), IELTS 6 or better on all bands of the test, and a positive skills assessment.

Please advise if I can assist any further with this -

Best,

Mark Northam


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## pawandhir (Aug 12, 2013)

MarkNortham said:


> Hi Pawandhir -
> 
> Assuming the new employer did not take over the old business and ABN of your previous sponsor, the time you put in working for the old sponsor would not count towards the 2 year requirement for the temporary residence transitional pathway for the ENS visa. Your new employer could look at sponsoring you for the Direct Entry pathway for the ENS visa if you qualified for this - primary requirements on the applicant side are 3 years work experience in the nominated occupation (for any employer), IELTS 6 or better on all bands of the test, and a positive skills assessment.
> 
> ...


Thanx Mark
Is any good news coming after election? I m also trying to get 6 each in IELTS. My 3 years also complete on 14 dec 2013 and same day 2 years complete under 457 visa. Is any other way for get PR without 6 each? Like pay something to immigration or through MRT??


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## MarkNortham (Dec 19, 2012)

Hi Pawandhir -

Hard to say what's coming after the election. The recent trend has been to toughen, not relax the migration regulations, so I'm not hopeful at this point of any easier requirements for the 186 or any other visas. English is a time of application requirement for the 186 visa, so it's not generally curable at the MRT. There are 2 classes of people exempt from the English requirement under 186 Direct Entry:

Class 1
Ministers of Religion (ANZSCO 272211) who have applied for a visa under the Regulations to occupy a position as nominated by a religious institution.

Class 2
Persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate.
(note: this would be $180,001 per year and over)

Hope this helps -

Best,

Mark Northam


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## pawandhir (Aug 12, 2013)

MarkNortham said:


> Hi Pawandhir -
> 
> Hard to say what's coming after the election. The recent trend has been to toughen, not relax the migration regulations, so I'm not hopeful at this point of any easier requirements for the 186 or any other visas. English is a time of application requirement for the 186 visa, so it's not generally curable at the MRT. There are 2 classes of people exempt from the English requirement under 186 Direct Entry:
> 
> ...


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## pawandhir (Aug 12, 2013)

Hi mark. I think Libral can give some relex in my case. So if i m aligible for PR can u follow my case from there? I am in Melbourne but i can visit Sydney. I wanna keep my eyes on coming rules. 
Regards


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## pawandhir (Aug 12, 2013)

My case is
I am on 457 visa from 10 dec 2011 on pre press trade person. But now on 1 June 2013 my employer is bankrupt. Court sell all machines by auction. So 1 other company who buy some machines from there sponsor me for same role. So now my question is ” am i eligible for 186 visa in dec 2013? My new employer is ready for sponsor me for 186 visa.


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## MarkNortham (Dec 19, 2012)

Hi Pawandhir -

Thanks for the note - . In your case, just purchasing machines would not allow you to credit your 2 years towards an ENS visa - the only way this could work is if the new company purchased the old company and retained the ABN number of the old company - essentially it would be the old company operating under new management/ownership. Other than that, for the temporary residence transition pathway for the ENS your 2-years on a 457 would need to start again. Have you looked at the Direct Entry pathway? Essentially 3 years experience in your occupation (but at any employer) and a skills assessment, plus IELTS 6 or higher on each band of the test.

We have clients all around Australia and in many countries so working remotely is no problem, but we're also always happy to welcome clients or prospects to our Sydney offices for a consultation or meeting.

Hope this helps -

Best,

Mark Northam



pawandhir said:


> My case is
> I am on 457 visa from 10 dec 2011 on pre press trade person. But now on 1 June 2013 my employer is bankrupt. Court sell all machines by auction. So 1 other company who buy some machines from there sponsor me for same role. So now my question is " am i eligible for 186 visa in dec 2013? My new employer is ready for sponsor me for 186 visa.


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## pawandhir (Aug 12, 2013)

Hi mark. I think Libral can give some relex on ENS. So if i m aligible for PR Under upcoming new rules i can tell u. i also book IELTS. I am in Melbourne but i can visit Sydney for ur services. I wanna keep my eyes on coming rules. 
Regards


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## MarkNortham (Dec 19, 2012)

I certainly hope the new government relaxes some of the skilled and employer-sponsored program regulations, but given what has to be done to accomplish this (passing legislation usually), I'll wait to see exactly how committed they are to actually making this a reality.

Best,

Mark Northam


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