My Employer Sponsor Is Now Bankrupt – What Can I Do Now?
If you have been nominated for a position under a Skills in Demand (SID) (Subclass 482) visa or an Employer Nomination Scheme (ENS) (Subclass 186) visa but your sponsor has since become bankrupt, your visa application may be jeopardised. One of the requirements for a 482 or 186 visa is that there is no adverse information known about the sponsor, or if there is, then it is reasonable to disregard it.
What is adverse information?
Adverse information is defined under regulation 1.13A of the Migration Regulations 1994 (Cth) and relates to information indicating that a person may not be suitable as a sponsor. Insolvency is included under the meaning of adverse information. If your sponsor is unable to pay debts as they are due, then they will be insolvent under the law.
Although adverse information can be disregarded under reasonable circumstances, insolvency may mean that other key requirements will not be met. For example, an insolvent sponsor is unlikely to be able to pay a salary that meets the relevant income threshold for the visa.
What Can I do for my SID (SC 482) or ENS (SC 186)?
If your nominated employer is bankrupt, you will be forced to find a new sponsor, and a new nomination application will need to be lodged accordingly. It is not advised to proceed with an insolvent sponsor as there is a high likelihood that they will not be able to meet their obligations in the future.
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What if my sponsor becomes insolvent after I get the visa?
To ensure that you remain working in the nominated position with your sponsor, your subclass 482 visa will have condition 8607 attached. This condition will allow you to stop working for your employer for up to 180 days at a time and up to a maximum of 365 days.
If your sponsor becomes insolvent, you should find a new employer. As the requirement to work for your sponsor is a condition of your visa, you will need a new nomination and visa application. You will have 180 days to find a new employer, or you will be in breach of condition 8607 and possibly subject to cancellation.
If you instead hold a subclass 186 visa, there is no condition requiring you to work for the sponsoring employer. ENS (SC 186) is a permanent visa; you will not be affected by your sponsor’s insolvency. Hence, there is no obligation to work for your employer. You will be able to remain in Australia without the risk of cancellation, as you have not breached any of your visa conditions. Insolvency is only relevant prior to being granted a subclass 186 visa.
Overall, if your sponsoring employer becomes insolvent during the application process, then you will be forced to start over with a new employer. You will also need to do so within 180 days if you hold a subclass 482 visa. However, if you already have a subclass 186 visa, then it will have no impact on you.
How Can Agape Henry Crux Help
If you find yourself in a similar situation, finding alternative visa pathways to meet your objective may be your next best step. You can book a time with one of our Accredited Specialist Immigration Lawyers (s) or our team of immigration lawyers and registered migration agents who specialise in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin and Cantonese. We can also help you arrange an interpreter if this isn't your language.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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