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8/9/2019 Turner Coulson Immigration Lawyers - Temporary Business (Long Stay) - Standard Business Sponsorship (Subclass 4

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Temporary Business (Long Stay) - Standard Business Sponsorship (Subclass

457)

Introduction

So you are in Australia and have been working on your working holiday visa for an employer

for 4 months or so, know that your 6-month limitation on working for the one employer isfast approaching but want to keep working for your boss and want to stay on in Australia aslong as possible. Alternatively, you want tocome to Australia to work and live and are noteligible for permanent migration as you cannot satisfy the pointes test requirement.

If this sounds like you, then a very real visa option for you is the subclass 457 Sponsoredtemporary visa which allows you to live and work in Australia for up to 4 years for thesponsoring employer.

This is the most commonly used program for Australian employers to sponsor overseasworkers to work in Australia in skilled positions on a temporary basis.

There are also special arrangements for employers in regional areas across Australia whichallow them to sponsor workers into less-skilled positions that are not otherwise open to

workers in cities and non-regional areas.

The 3 Stages Sponsorship, Nomination and 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 befilled 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, areeligible to work for, and can only work for, your sponsoring employer for the period of thevisa: up to 4 years.

I will now look at eligibility for these 3 stages but will commence with stage 3 the visaapplication first and then look at the sponsorship and nomination application.

While the 3 stages are distinct and separate, all 3 applications can be lodged at the sametime to be considered together by a case officer of the Department of Immigration andCitizenship.

Stage 3 - Employee Eligibility for the grant of a subclass 457 visa

Skills

As an employee, to be granted a subclass 457 visa, first of all you need an employer willing

to sponsor you to apply for the subclass 457 visa and also to offer you work in a skilledposition that is set down on the subclass 457 gazette notice. Just like the A-list nightclubdoorman, if your occupation is not on the list, then youre not coming in and cannotsuccessfully apply for, and be granted, a subclass 457 visa.

Once you have a sponsor, the next step is establishing to the Department of Immigration &Citizenship that you have the skills, qualifications, and experience and employmentbackground to match those required for the position for which you have been nominated byyour sponsoring employer.
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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, thecurrent Australian labour government intends to progressively introduce formal skillsassessment from 1 July 2009 for subclass 457 applicants from high risk countries in traderelated occupations and also chefs.

Strong English Skills

You will also have to show you have strong English language skills, unless you are fromEngland, Ireland, Canada and the USA and provide, with your application, an InternationalEnglish Language Testing System (IELTS) test score showing average band score of 4.5across the four test components (or higher where required forlicensing/registration/membership).

Please note that the Department of Immigration & Citizenship has stated that the minimumIELTS level will be raised to 5 across all bands after 1 July 2009.

If licensing is required then you will need to be eligible for, or have any relevant licenses orregistration required for the nominated position. There are also health and good characterrequirements that must be satisfied.

Minimum / Market Salary

Finally, your employer will also have to demonstrate that you will be paid at least theminimum salary level that applies at the time a decision is made on your visa and that theconditions of your employment are in line with any and all applicable Australian employmentlegislation and awards.

In September 2009 employers will be required to pay sponsored employees on subclass 457

visas a market salary but the Department of Immigration & Citizenship are not presentlyable to explain how this market salary will be calculated.

Changing Employers

It is important to remember that you cannot change employers without finding a new joboffer from an employer willing to sponsor you. Then a new sponsorship, nomination andsubclass 457 visa application must be lodged and approved before you can start work withthe new employer.

You cannot simply transfer or just advise the Department of Immigration and Citizenship

that you have changed employers. A new and completed sponsorship, nomination andsubclass 457 visa application will have to be lodged and approved before you can change tocommence work with a new employer.

Stages 1 & 2 Sponsorship and Nomination

What must a business show to be approved as a standard business sponsor tosponsor an overseas worker onto a subclass 457 visa?


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It is worth noting that recent policy changes suggest that assessment of sponsorshipapplications are going to be tested more rigorously and that it will be more difficult to getapproval to sponsor employees on a 457 visa.

However, as the policy changes are so new, it is impossible to comment to what extentstandard business sponsorship applications and associated nominations and subclass 457visa applications will be rejected where historically they would otherwise have beenapproved.

It is beyond the scope of this article to go into detail about all criteria that must be met by asponsoring employer however, the following criteria are the stumbling blocks at which youcan expect most sponsorship applications to fall over.

1. Lawfully and actively operating a business

As obvious as it seems, the sponsoring employer must establish that they are lawfullyoperating a business that is actually and actively engaged in business activities.

New businesses or business proposals may be considered if there is clear evidence ofintention to establish the business. As examples such things will be looked at, among other

things, like access to adequate money to achieve the establishment of the business, astrong business plan showing how the success of the business will be achieved and that theobligations owed to the sponsored subclass 457 visa holding worker can and will be met.

However, the Department of Immigration & Citizenship has recently stated that businesseswith turnover of less than $500,000 will be looked at more closely to ensure they are able tomeet their sponsorship obligations as created by Australian Immigration Law.

2. Direct employer of the employee

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 thirdparty.

Determining who is the direct employer is very much a question of the employment lawprinciples but the Australian Department of Immigration and Citizenship usually considersthe direct employer to be responsible for such things as, payment of salaries , PAYG taxinstalments, superannuation, conditions of employment, day-to-day supervision of theemployee.

3.. Good business record and abide by immigration laws

To meet this requirement there must be nothing adverse known about the business, if theemployer has previously sponsored employees to Australia, they must have a satisfactoryrecord of complying with immigration laws and the activities of the business must not beillegal in Australia.

4. Benefit to Australia

The employment of skilled workers from overseas must benefit Australia and not just thesponsoring business.

To meet this criterion you must show that the employment of the sponsored person in thenominated role, and the grant of the subclass 457 visa, will lead to the, maintenance of or


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creation of employment for Australian citizens or Australian permanent residents, Expansionin the trade of Australian goods or services, Improvement of business links with internationalmarkets or Improvement of or an increase in competitiveness within the relevant sectors ofthe Australian economy.

Advance skills of existing workforce

The employer must also demonstrate that their Australian business operations will meet oneof the following requirements introduce, use or create new business skills, introduce, use orcreate new or improved technology, have a satisfactory record of, or a demonstratedcommitment towards training Australian citizens and Australian permanent residents.

Since the announcement of the cuts to the Australian Migration program by the Minister forImmigration and Citizenship, Senator Christopher Evans, these above criteria are arguablynow being tested much more rigorously leading to refusals of sponsorship applications thathistorically would have been successful.

Regional employer concessions

If you are an employer in a regional area in Australia you may be eligible for concessions in

meeting the minimum salary and skill level requirements for your nominated position.

What does being approved as a Standard Business Sponsor to sponsor a subclass457 temporary business long stay visa holder all you to do?

If you are approved as a standard business sponsor, and an employee is granted a subclass457 temporary business long stay visa to work in a skilled occupation in your business, youwill be able to employ that worker for a period of between 3 months and 4 years after whichtime you will need to make a new sponsorship and visa application.

The employee can also bring their spouse and dependent children with them, who will alsobe eligible for the grant of a subclass 457 visa.

The employee will have to work for the sponsoring employer for the period that the subclass457 visa is granted. They will also have to work in the nominated occupation for which thesubclass 457 visa was granted.

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