# 457 to Partner Sponsor PR 820/801 - hard situation with baby now



## Princess1981 (Oct 29, 2013)

Hi, my hubby and I have read many posts on this forum and did get big help while preparing our application. I'm now in a very hard situation, would anyone be able to provide some advice? Thanks in advance-


I'm on 457 visa (valid fr Jan 2011 to Jan 2015). 
I got married in early 2012 (my hubby's Australian citizen), but just lodged my 820/801 application 2 weeks ago, I've got BVA assigned.
My working contract will end in Dec, means I'll have no job in 6 weeks. I'm trying to seek jobs in the market, but they all ask for candidates with full working rights.
I know that after my working contract ends in Dec, I'll have only 90 days in Australia, and I don't know if my PR would be granted by then.But looking at my baby son is still relying on breastfeeding now, and I don't want to leave Australia, leave my hubby, my son!

Is it the only way to leave and wait for visa decision? What else can I do? Can I somehow ask visa officer to prioritise my application? Can I ask for working rights to support my family and the baby? I feel my life is really in a mess now...crying ...


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## CollegeGirl (Nov 10, 2012)

There's almost no possible way your 820 will be granted by March. Average wait time right now is 13+ months. Your Bridging Visa A won't kick in until your 457 ends on its own... but by losing your job, you breach the conditions of your visa, which means you lose your Bridging Visa A as well. I don't know what sort of compelling and compassionate circumstances DIAC would take into account - it sounds like you might have a good case, though. I would get professional help on this one - you don't want to take a risk as important as your situation is. Mark Northam on these boards is a really good agent and can probably help you. Take care of yourself and congrats on the little one.


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## Princess1981 (Oct 29, 2013)

CollegeGirl said:


> There's almost no possible way your 820 will be granted by March. Average wait time right now is 13+ months. Your Bridging Visa A won't kick in until your 457 ends on its own... but by losing your job, you breach the conditions of your visa, which means you lose your Bridging Visa A as well. I don't know what sort of compelling and compassionate circumstances DIAC would take into account - it sounds like you might have a good case, though. I would get professional help on this one - you don't want to take a risk as important as your situation is. Mark Northam on these boards is a really good agent and can probably help you. Take care of yourself and congrats on the little one.


Thank you so much, CollegeGirl. To be frank, I was waiting for your voice...

Now I feel more desperate..........is it possible to email/call immigration to see if they can accelerate my application processing or to let me legally stay at least?

If due to the restriction terms I have to leave Australia along with working contract ends, thus I have to leave my hubby and seperate the family physically until visa granted, it is not reasonable, I'm applying for a partner sponsor visa and I cannot live with the family >_<...


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## CollegeGirl (Nov 10, 2012)

Like I said - I really think you need a professional on this one. I think you may be able to cite compelling and compassionate circumstances. But I don't know if you'd apply to get the work restrictions lifted from the 457 (or if that's even possible), or if you'd apply to accelerate your 820, or what... this just isn't something that happens often enough that I know what the answer is. I bet there's a solution, though. I think if worst comes to worst you'll just end up on a Bridging Visa E without any work/travel rights until your 820 finishes processing. I doubt they'll make you leave.

I would contact an agent and not Immi - the agent will look out for your best interests. And a lot of them will do free or low cost consultations. Like I said - send Mark Northam a message. I bet he can at least point you in the right direction.


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## Cezzy84 (Aug 8, 2011)

My understanding is that if you lose your job and cannot find anyone else to sponsor you, then you will lose the BVA. BUT, you can apply for a bridging visa E, as CG says. This means you can't work or leave the country, however can stay here until your visa is processed. Chin up!


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## GBP (Jun 1, 2013)

Go back to study?


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## Princess1981 (Oct 29, 2013)

CollegeGirl said:


> Like I said - I really think you need a professional on this one. I think you may be able to cite compelling and compassionate circumstances. But I don't know if you'd apply to get the work restrictions lifted from the 457 (or if that's even possible), or if you'd apply to accelerate your 820, or what... this just isn't something that happens often enough that I know what the answer is. I bet there's a solution, though. I think if worst comes to worst you'll just end up on a Bridging Visa E without any work/travel rights until your 820 finishes processing. I doubt they'll make you leave.
> 
> I would contact an agent and not Immi - the agent will look out for your best interests. And a lot of them will do free or low cost consultations. Like I said - send Mark Northam a message. I bet he can at least point you in the right direction.


Thank you so much CollegeGirl, I'll follow your advice and contact Mark accordingly.

Yes, I don't think it's logical to make me leave because my son is so little, and both my son and my hubby are Australian citizens and they have the right to stay anyway. I have a big question mark in my mind, if, say if the visa label shows that my working visa expired today, would I move to a BVA with full working rights? or 457 would never have full working rights before PR granted even with a BVA? alternatively saying that, BVA never really works for a 457 holder who's applying for PR?


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## Princess1981 (Oct 29, 2013)

hi CollegeGirl and Cezzy84, I think I found the problem here: if my 457 working visa ends on itself, my BVA will be into effect automatically, and I will have full working rights then, Is that correct?

What pushes me into this situation today is that my 457 visa valid period is much longer than my actual working contract! I don't know why. When company sponsored my working visa, they were presenting a two-year contract to Immi, but I was granted a four-year 457 visa. So till today, actually my working contract has been extended for 2 times, still the contract ending date is before visa expiry date. Is this the root cause of all these mess?


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## CollegeGirl (Nov 10, 2012)

Yes, that's exactly it. And 457s are typically four-year visas, so that's not unusual.


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## Dayvt (Nov 4, 2013)

Princess1981 said:


> Hi, my hubby and I have read many posts on this forum and did get big help while preparing our application. I'm now in a very hard situation, would anyone be able to provide some advice? Thanks in advance-
> 
> 
> I'm on 457 visa (valid fr Jan 2011 to Jan 2015).
> ...


I'm in the same position. You don't have to leave the country and your 457 won't cancel after 90 days.

FYI my 457 expires in 2015 and i was made redundant 4 months ago!

See email i received below: -

"Thank you for your email.

Apologies for the delayed response.

A 457 visa holder is generally given 90 days from the date of cessation to either lodge a new application or depart Australia. If, after 90 days, neither of these events have occurred, the cancellation officer will send you a Notice of Intention to Consider Cancellation (NOICC) letter which asks you to reply in writing as to why your visa should not be cancelled. It will then be up to the cancellation officer to decide if your reasons are sufficient to warrant a short extension - with the aim of using that extension to either lodge a new application or depart Australia.

However, in your case, as you've already lodged an 820 Partner visa application, the department will generally await the outcome of that application before assessing your 457 visa for possible cancellation. What this means is that if you're approved for your 820 visa then it will over-ride your 457 visa and obviously no further action will be required. If your 820 partner visa is refused (and you haven't found a new 457 sponsor in the meantime) then you will be given a short period of time to either find a new sponsor or lodge a new visa application.

Regarding working - even though you have lodged a permanent visa application, you are still on a 457 visa and are still restricted by the 8107 visa condition. Therefore, if you wish to work while your 820 partner visa is being processed you'll need to find a new sponsor and have them lodge the necessary applications. Once a new nomination is approved, you can commence work with your new

sponsor. The bridging visa that was granted when you lodged your 820 partner visa only comes into effect if the processing of your 820 visa application goes beyond the expiry date of your 457 visa - ie, it will keep you lawful while the processing is finalised.

There is an alternative whereby you can request your 457 visa to be cancelled (which also cancels your bridging visa A), you then become unlawful for a few minutes and are then granted a bridging visa E (BVE) which unlike the 457 visa can have its work restriction removed. You then need to demonstrate financial hardship in order to gain unrestricted work rights on the BVE. There are however a number of risks and consequences associated with this course of action. Let me know if you would like more information regarding this process.

I hope this information is helpful."


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## CollegeGirl (Nov 10, 2012)

DIAC is notorious for giving incorrect advice. The information I posted above has been posted by multiple registered migration agents on this site and others. I would be very, very wary about trusting that, Dayvt. Everything I've read says that when you become unemployed on your 457 and cannot find another sponsor you are breaching the conditions of that visa, your BVA gets cancelled and your only option is a Bridging Visa E (with all the problems that come with that, as it's for people who are not in the country on a valid visa) until your partner visa is granted. Use caution.


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## MarkNortham (Dec 19, 2012)

Hi All -

Great questions. DIBP has been known to be very flexible re: cancellation of 457 visas when there is a pending permanent visa application involved. In this case, with a child involved, there is every reason to believe that they would simply "sit" on the 457 and not cancel it, awaiting the partner visa result. Cancellation takes months and months to do, and can be appealed as well to the MRT, so I think DIBP sees the "writing on the wall" and, as long as they're convinced that a partner visa application is genuine and not a gimmick to stall the migration process, will hold off cancellation pending the 820 decision.

As the note points out, while they "sit" on the 457, you cannot work other than for a sponsoring employer, so your working ability would be impaired in that way until the partner visa is decided. 

The voluntary cancellation process written about here is another solution, but comes at a price. The BV-E comes with no work rights by default, leaving you to apply for them. And, since you are unlawful for a short amount of time, any time spent in Australia prior to that no longer is eligible for the residency requirement for citizenship as you must be lawful for 4 years (continuously) for the time you're in Australia to meet that requirement. And if you leave on a BV-E, the BV-E ceases as soon as you leave the country and you're left with no way to get back in until the partner visa is granted, as leaving on a BV-E attracts a 3-year exclusion period on all temporary visa applications (ie, visitor, student, 457).

So these are generally the options people face - in my opinion, DIBP should allow someone in this situation a graceful exit to their 457 (or student) visa, and let them be willing to accept the BV-A and its limitations for the period. Unfortunately the legal framework for these visas does not allow such an "exit", leaving the applicant to face expiry at the end date of the visa, replacement by the new visa once the decision is made, or voluntary cancellation and the BV-E penalty.

Hope this helps -

Best,

Mark Northam


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## Dayvt (Nov 4, 2013)

MarkNortham said:


> Hi All -
> 
> Great questions. DIBP has been known to be very flexible re: cancellation of 457 visas when there is a pending permanent visa application involved. In this case, with a child involved, there is every reason to believe that they would simply "sit" on the 457 and not cancel it, awaiting the partner visa result. Cancellation takes months and months to do, and can be appealed as well to the MRT, so I think DIBP sees the "writing on the wall" and, as long as they're convinced that a partner visa application is genuine and not a gimmick to stall the migration process, will hold off cancellation pending the 820 decision.
> 
> ...


Thanks Mark.

Yes, on follow up, i was seeking a way to be allowed to work...i received the following (i've blanked out a few bits): -

"You have enquired about cancellation of your subclass 457 visa in order to work pending a decision being made on your Subclass 820 visa application.

Departmental records confirm that you have applied for a subclass 820 visa on XX/09/2013. A Bridging Visa A (BVA) was also granted to you on XX/09/2013. This bridging visa remains 'out of effect' and would not come into effect unless your current 457 visa ceases, and this is not due to occur until XX/XX/2015. The BVA retains the same '8107' condition that is attached to your 457 visa. Therefore, you can only work for your former sponsor. If the 457 visa is cancelled any bridging visas granted to you will cease at the time the visa is cancelled.

The department was advised on the XX/XX/2013 that you ceased employment with your sponsor XXXXXXXXX on the XX/XX/2013. This means the grounds exist for the department to cancel your 457 visa however, as you have applied for an 820 visa, you may remain on your current 457 visa until a decision is made on your 820 visa application. You can travel offshore on your current visa and apply for other visas if you wish to do so.

As mentioned above, if your 457 visa is cancelled, the BVA will cease and you will become an unlawful non-citizen. You would be required to apply, in person, for a Bridging Visa E (BVE) to remain lawfully in Australia until a decision is made on your 820 visa application.

The BVE granted to you will have condition '8101' (no work) attached. You may request work rights by completing Form 1005 (Application for a bridging Visa) to have the '8101' visa condition removed from your BVE. You will need to demonstrate financial hardship and a compelling need to work. This decision will be made by a compliance officer.

IMPORTANT

Please note the following consequences of visa cancellation:

You will be unable to lodge further applications for most visas while you remain in Australia.
Your visa status will become 'unlawful' and you must immediately apply for a BVE. Note that there is exclusion periods applicable to unlawful non-citizens who do not rectify their visa status within a specific time.
The BVE does not contain a return-travel facility. If you wanted to leave Australia on a BVE, you would need to apply for a new visa offshore to allow return travel to Australia.
You cannot apply for Australian Citizenship for four (4) years, as the requirement of s22(1)(b) of the Australia Citizenship Act 2007 (the Citizenship Act) is that a person must not be an unlawful non-citizen at any time during the period four (4) years immediately before the date of applying for citizenship.

To clarify each of the consequences -

If the 820 visa application is refused, then the visa options open to you are severely limited and you would more than likely have to depart Australia. Conversely, if you still hold your 457 visa then you can reapply for another type of visa subclass.
Generally you'll need to come into the office to have your visa cancelled, you will then be granted a BVE by the compliance unit - this shouldn't result in an exclusion period. Unlike the 457 visa, you can apply for the work restriction to be removed from the BVE.
820 visa applications can take anywhere from six to twelve months. If you are intending to travel offshore during this period you would be unable to return to Australia without applying for a new visa (which more than likely wouldn't have work rights attached to it - eg a tourist visa). Your current 457 visa has an unlimited travel authority attached to it.
If gaining citizenship as soon as possible is important to you then the cancelling of his 457 visa will delay your eligibility.

Given the above information, please confirm via return email if you want your 457 visa to be cancelled."

I hope this helps people.

I have decided to stay on a 457 and seek a sponsored job, which is proving hard right now given the current climate in my sector.


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## MarkNortham (Dec 19, 2012)

Interesting they warn that "you would more than likely have to depart Australia." which seems to ignore the legal right you would have to an MRT review. This is inaccurate information at best, and makes a wild presumption that whatever reason might be given for refusal would not be successful at the MRT. 

Sounds like you've made the right choice for you, but this kind of incomplete/inaccurate information really frustrates me (the quote above from DIBP).

Best,

Mark Northam


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## CollegeGirl (Nov 10, 2012)

Mark, great information as usual. I am surprised (but glad) to read that they will just "sit" on the 457 cancellation, as I was so sure I had read multiple places that it's problematic. 

So if someone on a 457 quits their job because they don't want to work for their employer anymore, after already having applied for a partner visa, there is no consequence to that? Their 457 remains valid and they can just take however long they need to to find another employer to work for? If I'm understanding you correctly, that's so great. 

And you mentioned student visas - does it work the same way there as well? Someone can just stop studying, and again - there's no problem with that? They just have to continue to abide by the work restrictions of their student visa?


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## Sophey (Aug 13, 2013)

This is interesting information. I had not heard of this happening before. I am in a similar situation in that I have applied for an 820 and I am currently on a 457. I would like to leave my job and potentially travel for a while whilst I wait for my 820 to be granted but I didn't think this would be possible as BVE wouldn't have allowed me to travel, plus I did not want to interrupt my citizenship qualification time. 

Mark, in your professional opinion how 'safe' do you think it is to assume that they will allow the 457 to run in all cases. Is it more of a discretionary thing depending on the situation and officer that looks at the case?

Its a hard call to make as if I take the chance and quit my job and they don't allow the 457 to run then I have just willingly taken away my ability to stay in the country beyond 90 days.

Any advice would be appreciated.


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## MarkNortham (Dec 19, 2012)

Hi Sophey -

It's a discretionary thing, and would depend on how long is left to run on the 457 too I would think. If you're able to speak to someone in the 457 section and get their name, and they are willing to commit to letting the 457 run as long as you don't breach the visa conditions (ie, as long as you don't work for a non-sponsoring employer), you're probably reasonably safe with that. But it would require putting together a good relationship with the 457 case officer who you deal with once they are informed that you are no longer working if that's the case.

Hope this helps -

Best,

Mark Northam


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## Sophey (Aug 13, 2013)

MarkNortham said:


> Hi Sophey -
> 
> It's a discretionary thing, and would depend on how long is left to run on the 457 too I would think. If you're able to speak to someone in the 457 section and get their name, and they are willing to commit to letting the 457 run as long as you don't breach the visa conditions (ie, as long as you don't work for a non-sponsoring employer), you're probably reasonably safe with that. But it would require putting together a good relationship with the 457 case officer who you deal with once they are informed that you are no longer working if that's the case.
> 
> ...


Thanks for the quick response Mark. I have 20 months remaining on my 457 visa at the moment.

I will try and get in contact with someone in the 457 department and see what they say.


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## Sophey (Aug 13, 2013)

Dayvt said:


> Thanks Mark.
> 
> Yes, on follow up, i was seeking a way to be allowed to work...i received the following (i've blanked out a few bits): -
> 
> ...


Dayvt - Did you contact DIBP about your 457 and ask if they could make any allowances for you or did they just send you that email when they found out you had ceased employment?


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## Dayvt (Nov 4, 2013)

Sophey said:


> Dayvt - Did you contact DIBP about your 457 and ask if they could make any allowances for you or did they just send you that email when they found out you had ceased employment?


Reply below....
Your query is primarily a matter for the Partner visa section, as the relevant matter at hand is whether you are onshore for the grant of the Partner visa.
*
The 457 Cancellations Unit take a flexible approach in these matters and will usually allow a reasonable amount of time for a 457 visa holder to stay onshore until they get the Partner visa. In your case, it will not matter whether you return to Australia on a Visitor visa or the 457 visa in order to get the Partner visa granted.
*
That said, the department's current position of being flexible in such matters remains in place, and without being able to give you an official guarantee, I would think that it is unlikely that we will be pursuing cancellation at this stage. If your visa did happened to be cancelled while you were overseas, you could simply apply for a Visitor visa online, free of charge. There is no exclusion period for having your visa cancelled under these grounds.
*


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## Sophey (Aug 13, 2013)

Don't you need to be onshore when the 820 is granted? Bearing in mind most people don't know their visa's are going to be granted until they get the email to say its been done. How would this affect the 820? Would you be allowed some time to come back to the country to accept the 820 grant?


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## Dayvt (Nov 4, 2013)

Sophey said:


> Don't you need to be onshore when the 820 is granted? Bearing in mind most people don't know their visa's are going to be granted until they get the email to say its been done. How would this affect the 820? Would you be allowed some time to come back to the country to accept the 820 grant?


That's the bit that is a gamble.

Ive left for 6 months. I applied to Sydney and they said that there is not a decision ready queue and that the time frame is genuinely 13 months and that they are still working on ones from last year.
I'm hoping they are lenient if if is ready to approve and I'm out the country, but it may blow up in my face.


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## Sophey (Aug 13, 2013)

Dayvt said:


> That's the bit that is a gamble.
> 
> Ive left for 6 months. I applied to Sydney and they said that there is not a decision ready queue and that the time frame is genuinely 13 months and that they are still working on ones from last year.
> I'm hoping they are lenient if if is ready to approve and I'm out the country, but it may blow up in my face.


So have you actually spoken to someone and asked what would happen if you were out of the country when it is granted? Will they grant you leniency if you explain your situation and ask them to contact you when it is ready?


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## Dayvt (Nov 4, 2013)

Sophey said:


> So have you actually spoken to someone and asked what would happen if you were out of the country when it is granted? Will they grant you leniency if you explain your situation and ask them to contact you when it is ready?


I have posted almost all my correspondence in here in the 2 threads you replied to.
No they have not given me any assurances when I've spoken to them...seems like they only give grey answers as each case officer is different.
As I mentioned, it's a gamble that I hope a) it doesnt get processed in the next 6 months or b) that they allow me 48-72 hours to get back in the country if it is ready to process and they contact me to tell me this.

It may not work, but I couldn't afford to live on zero income anymore and I didn't want to go down the cancellation/unlawful route.

I understand that I would have right to appeal any decision.


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