Corporate restructures, mergers or acquisitions involve substantial change for organisations and it is easy for immigration aspects to be overlooked. A change in the corporate legal structure can have a substantial effect on subclass 482 TSS visa holders and their employers
Has the sponsoring employer changed?
An assessment needs to be made as to whether the legal entity employing TSS / 457 visa holders has changed. This can be a complex question and expert advice is required.
For example, in the case of a takeover where the employer is the entity taken over by another business, or the employer entity is merged into another business resulting in a change to the ABN, employees holding a TSS / 457 visa will be affected. It is a condition of an employer sponsored visa that the visa holder only work for the approved sponsor (or associated entity of that sponsor).
Furthermore, employer sanctions provisions of the Migration Act prohibit employers from employing workers in breach of their visa conditions. To ensure compliance with the TSS / 457 visa conditions and the employer sanction provisions, the acquiring organisation needs to obtain sponsorship approval, if required, and lodge new nominations to transfer the TSS / 457 employees.
Has the Department of Home Affairs been notified?
Employers of TSS / 457 visa holders must comply with a number of sponsorship obligations. One of these obligations is to notify the Department of changes to the company structure such as:
• The sponsoring entity ceases to exist;
• There is a change of address or contact details; and
• New directors are appointed.
• Changes in position or cessation of employment of the TSS / 457 visa holder
Such changes must be notified within 28 days of the change occurring
Impact on eligibility for permanent residence
Changes in corporate structure may also impact TSS / 457 visa holders who are considering permanent residence.
Under the Employer Nomination Scheme, one of the common pathways to permanent residence is available for TSS / 457 visa holders who have worked for their sponsoring employer for at least three years. However, a change to the structure or legal status of the sponsoring employer within the two year period could mean that their employment cannot be counted and the two year period re-sets.
Permission to Work
Immigration compliance is not restricted to TSS / 457 visa holders. If new employment contracts are being issued, organisations must ensure that all employees continue to have permission to work in accordance with the terms of that contract, even those employees believed to be Australian citizens or permanent residents.
Importantly, the work rights of temporary visa holders need to be periodically re-checked, so it is vital to have appropriate processes in place to monitor this.
How we can help
The Migration Agency can help your company during a corporate restructure. We offer a range of services, including strategic advice and planning, specialist visa assistance, briefings and advice, and reviews of policies and procedures.
For information, call us now on (02) 8896 6056 or contact us by email info@themigrationagency.com.au.
