Temporary Work (Skilled) (subclass 457) visa 101

The temporary work (skilled) (subclass 457) visa  is an incredibly popular visa. Eligible businesses may sponsor a skilled worker in an occupation listed on the skilled occupation list (SOL) or consolidated occupation list (CSOL) under this programme.

The purpose of the 457 visa is to fill shortages in the industry for specified occupations. The boundaries surrounding this visa aims to protect local labour. Here is our brief introduction to the 457 visa.

To be granted the temporary work 457 visa, 3 applications must be lodged and granted:

  1. Standard Business Sponsorship: Business is approved to be a sponsor for a period of anywhere between 18 months and 6 years
  2. Nomination: Sponsoring business identifies position and nominee for position
  3. Visa applicant: Applicant is approved to work in the nominated position for a period of up to 4 years

Think of the process as the SBS being a test of the viability of a business, the nomination as a test for if the position to be filled is one that actually is in need, and the visa application as a test for if the nominee is eligible for the role.

 

Standard Business Sponsorship (SBS)

If your company has a valid SBS then there will be no need for a new application. Otherwise, the first step to the process is getting the company approved as a sponsor. A company become a sponsor by applying for SBS or negotiating a labour agreement. The former is the most common route to sponsoring an employee.

The company will need to be lawfully operating, financially sound, declare and be able to demonstrate a commitment to employing local labour, and meet training requirements.

Training benchmark A:  recent expenditure 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
Training benchmark B:  recent expenditure to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

For businesses that have only been trading for less than 12 months, the SBS will be approved for only 18 months, otherwise the SBS will be valid for 5 years. Accredited sponsors will have a SBS validity of 6 years. For businesses on labour agreements, the validity lasts for the term of agreement.

 

Nomination

A nomination application is an identification of both a position and the person selected to fulfil this role. To lodge a nomination application you must be an approved sponsor or have lodged an sbs application. It is possible to lodge both the SBS and nomination application at the same time.

A nomination application will involve providing documents such as a contract, evidence that the position is genuine and necessary, and that the nominee will be provided the equivalent in terms and conditions in employment as to an Australian employee. Labour marketing testing will also be required (exemptions apply). Think of the nomination application as a sort of screening process to make sure that the 457 programme is not being abused.

With the many recent scandals surrounding employer sponsored visas, in particular, 457 visas, getting a nomination grant has become a little trickier, especially for ‘generic’ type occupations such as customer service managers, marketing specialists and project administrators. To learn more about refusal at the nomination stage on genuine position grounds, read this article

 

Visa application

After a nomination has been submitted, the nominee may lodge their visa application. This final stage checks if the nominee is appropriately skilled for the role and meets Australia’s requirements for a person entering Australia, such as meeting English and health criterion.

The materials that need to be provided for this application include identity documents, qualification certificates, registration or licences (if necessary), the applicant’s resume, employment history and references, and evidence of meeting the minimum English language proficiency. The applicant will also be required to do a health check.

As it is a requirement for the nominated occupation to be on a skilled occupation list and for the applicant to meet the skill requirements for the occupation, the applicant’s previous employment must show that the applicant has experience in the skills defined (as in ANZSCO) for the nominated occupation, and at the skill level required. Skills assessment may be required for certain occupations and for holders of certain passports. Of course, the role will also have to require said skills. In our article on nomination we cover how the position needs to be aligned with the nominated occupation. The ANZSCO code for your nominated occupation is found on the occupation lists.

The 457 visa application is not a straightforward one as the circumstances of the company, position and the applicant can affect the result greatly. For example, a business intending to sponsor a cafe or restaurant manager will have its business operations deeply scrutinised to see if the nominated occupation is genuinely required. Read our article about how a food business would be defined as a restaurant/cafe or fast food/takeaway, and how that would affect a 457 application.

We will feature what it takes to become an approved sponsor in a later article so do look out for that!

30517-AILS

 

Jee Eun Han
Senior Migration Agent, Australian Immigration Law Services
MARN 0850073

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