The terms "working visa" and "457 visas" are
well known but unsurprisingly, unless you have undergone the
process yourself as an employer or migrant employee, very few
understand the processes required to obtain such visas. You may be
surprised at just how complex the process can be!
A working visa is the general umbrella term used to describe the
two most common visas which allow people the right to work in
Australia – the working holiday visa (subclass 417) and the
temporary work (skilled) visa (subclass 457).
Getting a working holiday visa is a relatively straightforward
process that generally doesn't involve the employer having to
provide documentation in support of the application for the working
holiday visa. The application is completed by the visa applicant
and if obtained, allows the visa applicant to remain in Australia
for up to 12 months, generally working up to six months with each
The 457 visa on the other hand, from the employer's point of
view, is a more involved process. The 457 visa is suitable for
skilled workers who can perform certain roles which the company has
difficulty recruiting for domestically.
Once lodged and approved, the sponsorship application will
provide the company the status of a "standard business
sponsor" which is a status the company needs to have if it is
to sponsor and employ any overseas workers on a 457 visa. Once
obtained, the sponsorship is generally valid for three years.
Second stage: nomination application
The nomination application requires the company to lodge an
application to nominate a particular position to be filled by an
overseas worker. For a nomination application to be approved, the
DIBP needs to be satisfied, amongst other things, that:
the company has complied with its training requirements for the
duration of the sponsorship (such as training expenditure
equivalent to 1% of gross payroll for each year of the sponsorship
or 2% of gross payroll in payments allocated to an industry
the nominated occupation is an occupation specified on the
Consolidated Sponsored Occupations List;
the terms and conditions of the nominated occupation would be
greater than the temporary skilled migration income threshold
(TSMIT) (currently $53,900) and are no less favourable than the
terms and conditions that would be provided to an Australian
citizen or Australian permanent resident for performing equivalent
work at the same location; and,
if there is no Australian citizen or Australian permanent
resident performing equivalent work at the same location then the
DIBP will look at various sources of information such as the Fair
Work Act, any relevant Modern Award, and labour market data from
job advertisements, the Australian Bureau of Statistics, unions and
employer associations, to determine the minimum terms and
conditions of employment that would be provided to an Australian
citizen or permanent resident to perform equivalent work in the
same workplace. The DIBP will need to be satisfied that the minimum
terms would include a salary above the TSMIT.
Once the nomination is granted it is valid for 12 months. During
those 12 months, the nominated employee (visa applicant) must apply
for the 457 visa. For a visa application to be approved, the DIBP,
needs to be satisfied, amongst other things, that:
the occupation is genuine and the visa applicant's
intention to perform the occupation is genuine;
the visa applicant has the skills, qualifications and
employment background necessary to perform the nominated
occupation. To satisfy itself that the visa applicant has the
skills, qualifications and employment background necessary to
perform the nominated occupation, the DIBP will look at a range of
factors including any formal qualifications, on-the-job training,
work experience, employment references and perhaps a formal skills
assessment by a body such as the Trade Recognition Australia;
the visa applicant can meet the English Language Requirements
(unless their base salary is more than $96,400);
the visa applicant is of good character; and,
the visa applicant has adequate arrangements for health
insurance during the period of their intended stay in
Once the visa is granted, it is valid for up to four years.
If the DIBP isn't satisfied that the above requirements are
met, the visa will likely be refused. It is therefore important
that your applications be "decision ready", that is, that
they are supported with the correct information and evidence that
the DIBP requires when making its decision to either grant or
refuse a visa.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Recent amendments to the Migration Act and regulations, along with the imminent commencement of the new federal safety net under the Fair Work Act, highlight a number of issues for consideration by employers in documenting terms and conditions of employment for foreign nationals engaged to work in Australia under Subclass 457- Business (Long Stay) visas.
If you employ 457 visa holders in your business, you should ensure that you are meeting your sponsorship requirements.
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