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Temporary Business (Long Stay) Visa - Subclass 457 by Stewart Coulson
Temporary Business (Long Stay) Visa
Subclass 457 Visa 4 year visa under standard business Sponsorship
Introduction to the Temporary Business Long Stay Subclass 457 Visa
This 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.
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 business sponsorship 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 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
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 is as 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
Skills
You 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 and up-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
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.
If the employee wishes to change employment, they will have to find an employer willing to take over their sponsorship and employment.
Conclusions
The 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 residence visa 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 through State Sponsorship please contact either Ray Turner or Stewart Coulson at Turner Coulson Lawyers immediately by phoning +61 (0)2 9264 4654 or emailing us at info@tcilawyers.com.au
Article Source: http://www.earticlesonline.com/Article/Temporary-Business--Long-Stay--Visa---Subclass-457/758690
