457 TEMPORARY WORKING VISA

Temporary Skilled Migration

Temporary Work (Skilled) (subclass 457) visas, commonly known as 457 visas, are temporary visas which allow skilled overseas workers to be sponsored by businesses to fill vacancies that cannot be filled from within Australia. A 457 visa may be granted with a validity period of between one day and four years. The program is uncapped and is intended to be demand driven, enabling businesses to fill emerging skill needs quickly.

Skilled temporary residents make a significant contribution to the Australian workforce. There are around 150,000 457 visa holders in Australia at any one time.

So I want to employ a temporary skilled worker?

To recruit an overseas workers for their businesses when there are labour shortages, the Australian employer must either be:

  1. An approved standard business sponsor (most businesses); or
  2. A party to a labour agreement (which is an agreement between the employer and the government). For some industries (e.g. if the employer wishes to “on-hire” workers) a labour hire agreement is mandatory.

There are 3 steps in obtaining a subclass 457 visa:

STEP 1 – SPONSORSHIP

Standard Business Sponsorship

 

To be approved as a standard business sponsor, the business:

  • must be lawfully operating either in Australia or overseas;
  • must meet one of the training benchmarks (if it has been lawfully operating in Australia for at least 12 months);
  • must show an auditable plan as to how it will meet the training benchmark (if it has been operating for less than 12 months);
  • must have no adverse information known to DIBP about the business (including whether any commitments from prior sponsorships were honoured); and
  • must pay the costs associated with the sponsorship and recruitment of the proposed visa holder. It is not allowed to recover those costs from the visa holder.

Benchmark A

Benchmark A: recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business

Benchmark B

Benchmark B: recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business

What about Overseas Businesses?

It is possible for overseas businesses to apply to be approved as sponsors, but only if it is for the purpose of establishing an operation in Australia or for fulfilling an existing contractual obligation in Australia.

What are my sponsorship obligations?

Once approved as a sponsor the business has a number of ongoing obligations which are monitored by DIBP for compliance. Sanctions may be imposed if there is non-compliance.

 

Regulation

Obligation

2.78 Cooperate with inspectors
2.79 Ensure equivalent terms and conditions of employment
2.8 Pay travel costs to enable sponsored persons to leave Australia
2.81 Pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen
2.82 and 2.83 Keep records and provide records and information to the Minister
2.84P Provide information to Immigration when certain events occur (e.g. the cessation of employment)
2.85 Secure an offer of a reasonable standard of accommodation
2.86 Ensure primary sponsored person works or participates in nominated occupation, program or activity
2.87 Not recover, transfer or take actions that would result in another person paying for certain costs
2.87A Make same or equivalent position available to Australian exchange participants
2.87B To provide training

 

 

STEP 2: NOMINATION

Labour Market Testing

Standard business sponsors are required to test the local labour market prior to lodging a nomination and must provide information with their nomination about their attempts to recruit Australian workers and how they have determined on the basis of these attempts that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder available to fill the position.

Market Salary

Standard business sponsors must show that they will provide no less favourable terms and conditions of employment to the nominee than they would to an equivalent Australian in the sponsor’s workplace at the same location. This is known as the ‘market salary rate’.

You must demonstrate that the market salary rate for the person you are seeking to sponsor is greater than the TSMIT. If the market salary rate for the position you wish to sponsor does not exceed the TSMIT, you will not be able to access the subclass 457 visa programme

Requirements for nomination

As part of the nomination process, the sponsor must provide the:

  • identity of the person who will work in the nominated occupation
  • ANZSCO code for the nominated occupation
  • location or locations where the nominated occupation is to be carried out, and
  • relevant certification (see next section).

If you are a standard business sponsor you must certify in writing:

    • that the tasks of the position include a significant majority of the tasks of the nominated occupation listed in the ANZSCO, or the nominated occupation specified in the gazetted list of eligible occupations, and
    • if the sponsor is lawfully operating a business outside Australia but not in Australia, the nominated occupation is a position in the business of the sponsor (unless the nominated occupation is an exempted occupation), or
    • if the sponsor is lawfully operating a business in Australia, the nominated occupation is a position within the business, or an associated entity, of the sponsor (unless the nominated occupation is an exempted occupation), and
    • the qualifications and experience of the nominee identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the ANZSCO, or if there is no ANZSCO code, for the nominated occupation in the gazetted list of eligible occupations.

STEP 3: VISA APPLICATION

You can apply for a subclass 457 visa if you:

  • have been nominated by an employer to work in Australia under standard business sponsorship and you have been advised by that employer to apply for your visa; or
  • are a member of the family unit of a primary visa applicant who is seeking to be granted a subclass 457 visa on the basis that they meet the primary visa requirements.

Visa requirements

To be granted a subclass 457 visa under the standard business sponsor stream you must demonstrate, among other things, that:

  • both you and the occupation specified in your visa application are the subject of an approved nomination which has not ceased to be in effect
  • you have a genuine intention to perform the occupation, and the position associated with your occupation is genuine
  • you have the necessary skills and experience to perform the occupation
  • you meet the English language proficiency requirement (unless you are exempt)
  • if required to do so, that you have the relevant licensing and registration required to perform the duties of your nominated occupation in Australia.There must be no adverse information known about your sponsor or a person associated with your sponsor. The department may disregard any adverse information if it is satisfied that it is reasonable to do so.
Health Insurance

It is a requirement that 457 visa applicants have adequate health insurance (and this is a requirement that must be met before the visa is granted).

Condition 8501 requires subclass 457 visa holders to maintain adequate arrangements for health insurance while in Australia

Condition 8107

Condition 8107 requires that as a primary holder of a subclass 457 visa you must:

  • work in the occupation for which you were nominated
  • commence that work within 90 days of arrival in Australia
  • obtain any registration or licensing necessary to perform your occupation in Australia
  • work for the sponsor, or an associated entity of the sponsor, who nominated the position you are working in, and
  • not cease employment for a period of more than 90 consecutive days
Changing employers

If you have been granted a subclass 457 visa and you want to change your employer or occupation you are not required to apply for a new visa.

However, before you can start working for a new employer or in a new occupation, you must be nominated by your proposed new employer and have that nomination approved first.

Tel: +61 2 9220 6100

Fax: +61 2 8569 0571

paul@paulcutler.com.au