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Subclass 457 Visa 4 year visa under standard business

Sponsorship

Introduction to the Temporary Business Long Stay Subclass 457 VisaThis is the most commonly used program for Australian employers to sponsor overseas

workers to work in Australia in skilled positions on a temporary basis.

 The subclass 457 Sponsored temporary visa allows you to live and work in Australia for up

to 4 years for the sponsoring employer.

After 2 years on this visa your employer can nominate you for permanent residence.

There are also special arrangements for employers in regional areas across Australia which

allow them to sponsor workers into less-skilled positions that are not otherwise open to

workers in cities and non-regional areas.

The 3 stages –

1 Sponsorship 2 Nomination 3 Subclass 457 Visa Application

First your employer applies for approval as a standard business sponsor.

Next the employer lodges a ‘Nomination Application’ nominating the skilled position to be

filled and nominating you as the employee to fill the nominated position.

The 3rd and final stage is you lodge your subclass 457 visa application and once granted,

are eligible to work for, and can only work for, your sponsoring employer for the period of 

the visa: up to 4 years.

I will now look at eligibility for these 3 stages. While the 3 stages are distinct and separate,

all 3 applications can be lodged at the same time to be considered together by the

Department of Immigration and Citizenship. 

Stages 1 & 2 – The Business sponsorship and Nomination

Applications

What must a business show to be approved as a standard business

sponsor to employ an overseas worker onto a subclass 457 visa?

Recent September 2009 policy changes has lead to sponsorship applications being tested

more rigorously meaning that winning approval as a standard business sponsor is now more

difficult.

Therefore, your application should be prepared by specialist immigration lawyer to give it

the greatest chance of success.

Lawfully and actively operating a business

The sponsoring employer must establish that they are lawfully operating a business that is

actually and actively engaged in business activities.

New businesses or business proposals will be considered if there is clear evidence of 

intention to establish the business.

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However, the Department of Immigration & Citizenship has recently stated that businesses

with turnover of less than $500,000 will be looked at more closely to ensure they are able

to meet their sponsorship obligations as created by Australian Immigration Law.

Direct Employer of the overseas worker

The sponsor must be the direct employer of the employee.

As a general rule, recruitment agencies are no longer allowed to sponsor a worker under the

subclass 457 visa program for the purposes of supplying their labour to an end user or third

party (unless they are party to a labour agreement).

Determining who is the ‘direct employer’ is very much a question of Australian employment

law principles but the Australian Department of Immigration and Citizenship usually

considers the direct employer to be responsible for such things as, payment of salaries ,

PAYG tax instalments, superannuation, conditions of employment, day-to-day supervision of 

the employee.

Good business record and abide by Australian immigration laws

To meet this requirement there must be nothing adverse known about the business, if the

employer has previously sponsored employees to Australia, they must have a satisfactory

record of complying with immigration laws and the activities of the business must not be

illegal in Australia.

Benefit to Australia

 The employment of skilled workers from overseas must benefit Australia and not just the

sponsoring business although this criterion is not as central to consideration of businesssponsorship applications as for example, the training benchmarks and market salary criteria

are.

 

Training of Australian employees

Employers under the subclass 457 visa programs must demonstrate their contribution and

commitment to the training of Australians by providing evidence of meeting the training

benchmarks.

There are currently two ways an employer that has been trading for 12 months can meet

the training bench mark. Either the Sponsor must show recent expenditure to the level 0f 1% of its payroll or pay 2% of payroll to an industry training fund

Business sponsorship applicants who have been trading in Australia for less than 12 months

should submit an auditable business and training plan showing that they will in the future be

able to meet the training benchmarks

Nominating the employee

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Once the sponsorship application has been approved, the nomination application can then

be considered and also approved. If the standard business sponsorship application is

refused, the nomination and any subsequent visa application are bound to fail

 The form the nomination application should take is fixed by Australian immigration laws.

Payment of ‘market salary’ to the sponsored employee

From 1 January 2010 employers will be required to pay sponsored employees on subclass

457 visas a ‘market salary’.

 A general minimum salary is still fixed (currently at $45,220 as at 16/04/2010 for the

majority of occupations) but simply paying the employee at or above this level is not

sufficient to achieve a successful nomination and subsequent subclass 457 visa application.

In occupations where a ‘prescribed salary level’ applies, the sponsor must pay the visa

holder the greater of either the ‘market salary’ rate or the ‘prescribed salary level’.

As a general guideline, how the ‘market salary’ is determined for a nominated occupation isas follows:

-  Australian industrial arrangement that apply to the occupation

-  Market Salary by reference to applicable modern award or enterprise

agreement.

-  In absence of an award or enterprise agreement the employer is to provide the

department with a range of evidence to substantiate the ‘market salary’.

Stage 3 – The foreign worker applies for the subclass 457 visa

SkillsYou must apply for subclass 457 in an occupation that is approved for subclass 457 visas by

Australian immigration law.

 If your occupation is not on the relevant gazette notice, you cannot successfully apply for,

and be granted, a subclass 457 visa.

To be successful in being granted the subclass 457 visa, you must demonstrate to the

Department of Immigration & Citizenship that you have the skills, qualifications, and

experience and employment background to match those required for the position for which

you have been nominated by your sponsoring employer.

This is usually done by presenting evidence of your qualifications with work references andup-to-date curriculum vitae.

While this is not a points tested visa and a skills assessment has not been required, the

current Australian labour government intends to progressively introduce formal skills

assessment from 1 July 2009 for subclass 457 applicants from high risk countries generally

in trade related occupations and also chefs.

As this list is continually being update and added to, I have not listed them here.

English Language

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If you hold a passport from England, Ireland, Canada, New Zealand and the USA you are

not required to provide an International English Language Testing System (IELTS) test with

your application.

There are also a number of other exemptions from providing an IELTS test result but it is

important to get specialist advice on this issue to avoid the potential refusal of your subclass

457 visa application.Generally, as at 1 July 2009, you must provide minimum IELTS test result showing 5 across

all bands.

If licensing is required then you will need to be eligible for, or have any relevant licenses or

registration required for the nominated position. There are also health and good character

requirements that must be satisfied.

Health Insurance

You must provide evidence that you have an appropriate subclass 457 health insurance

policy or hold a passport from a country that has a reciprocal health care agreement with

the Australian government.

Changing Employers

It is important to remember that you cannot change employers without finding a new job

offer from an employer willing to sponsor you. Then a new sponsorship, nomination and

subclass 457 visa applications must be lodged and approved before you can start work with

the new employer.

Regional employer concessions

Finding good employees in regional Australia can be difficult and this is recognised by the

Australian immigration Department.

While certain concessions and broader scope to apply may be available to regional standard

business sponsors it is important to note that as at 14 September 2009, employers in

regional Australia will no longer be eligible for concessions in meeting minimum salary and

skill level.

If you are seeking a regional subclass 457 visa, it is essential that you have specialist

immigration law assistance to ensure the best chances of success and to guarantee the

continued employment in your business of the selected foreign worker.

What rights and obligations do you have on a subclass 457 visa?

If you are approved as a standard business sponsor, and an employee is granted a subclass

457 temporary business long stay visa to work in a skilled occupation in your business, you

will be able to employ that worker for a period of between 3 months and 4 years.

The employee can also bring their spouse and dependent children with them, who will also

be eligible for the grant of a subclass 457 visa.

The employee will have to work for the sponsoring employer for the period that the subclass

457 visa is granted. They will also have to work in the nominated occupation for which the

subclass 457 visa was granted.

 

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If the employee wishes to change employment, they will have to find an employer willing to

take over their sponsorship and employment.

ConclusionsThe Australian government encourages visa applications under the subclass 457 temporary

long stay visa arrangements.

However, these applications are tested as rigorously as all Australian permanent residencevisa applications.

If a visa application that is lodged with the Australian Department of Immigration and

Citizenship fails to satisfy any single criteria set by Australian immigration law for the grant

of that visa, then the application is bound to fail and will be refused.

Therefore, it is important to have accurate and up-to-date legal advice and assistance in

preparing your Australian visa application because quite simply, your future is riding on it!

For an assessment of your application and whether you will be successful in achieving

approval as a standard business sponsor and for you associated subclass 457 visa

application, please contact either Ray Turner or Stewart Coulson immediately by clicking

here Contact Us - Turner Coulson Immigration Lawyers