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 employer.
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.
To be able to employ overseas workers to work for an Australian company on a 457 visa, there are three stages, each one requiring an application to be lodged with the Department of Immigration and Border Protection (DIBP).
First stage: sponsorship application
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 training fund);
- 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 Australia.
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.