Temporary Work (Skilled) Visa (Subclass 457)
Following from our last publication, we’ll continue to explore what it takes to apply for the Temporary Work (Skilled) visa (Subclass 457). As you know, this employer sponsored visa involves three separate applications.
- Standard Business Sponsorship application (Business)
- Nomination application (Position)
- Visa application (Applicant)
If you thought the Standard Business Sponsorship (SBS) application was complicated, well, the nomination application is definitely no walk in the park. This is where most applications stumble. With the crackdown on what seems to be a rising number of disingenuous applications, the nomination application has become one of the trickiest applications around. What’s more, regulations on this visa have undergone multiple alterations within this last year alone, and there are still calls for even stricter regulations. Don’t worry, we will continue to keep you updated. Being as informed as possible will save your money and time. We really recommend that you do your best to understand all that the 457 application entails, even if you have hired or will be hiring a professional to help.
Read our introduction to the Temporary Work (Skilled) visa (Subclass 457)
The SBS application is where you demonstrate that your business is eligible and capable of supporting an addition to its payroll. The nomination application is where the need, position and the person suited for the role is identified.
- Nominator is an approved sponsor (SBS) or is party to a labour agreement*
- Occupation exists on the consolidated sponsored occupation list (CSOL)
- Nominee is identified
- Nominee has required skills and qualifications as indicated in ANZSCO for the nominated occupation
- There is a written employment contract
- Tasks are greatly similar to that which is outlined in ANZSCO for the nominated occupation
- Terms of employment meet that which would be provided to an Australian citizen or permanent resident
- Base rate of pay for an Australian in the nominated occupation exceeds the temporary skilled migration income threshold
- Labour market testing is done where required
- Position is genuine
- No parties have agreed or accepted any form of payment for sponsorshi
*Labour agreements are uncommon as they exist under select circumstances and exist only for the period of a project if approved. Labour agreements will not be discussed
Nominator is an approved sponsor
You are able to lodge all applications in one go. However the applications will be processed in order and a SBS application that has been refused will result in your nomination being refused.
Occupation on CSOL
The nominated occupation must exist on the CSOL. These are occupations that have been identified to be in some degree of shortage in the local labour market. As the 457 programme exists to support the labour market, occupations outside the CSOL (not in shortage) will not be considered. Some occupations on the CSOL are quite specific, i.e. Cafe and Restaurant Managers , Chefs  and Cooks  cannot be nominated for positions in fast food or takeaway businesses.
Nominee is identified
This is straightforward. The details of the nominee (457 applicant) will need to be provided in the nomination form – name, birthdate and gender.
Where the nominee is already a 457 hold and is applying for a subsequent 457 to continue with the same nominator (extending the term), the previous application’s transaction reference number (TRN), application ID or visa grant number must be included.
Should any of the details be incorrect, it is not possible to request to change the information. The nomination application needs to be withdrawn and resubmitted, incurring another application fee charge.
Nominee is skilled for the nominated occupation
Skills assessments are not typically required for 457 applications however may be requested should the supporting documents – CV, qualifications, work experience and other related evidential documents – not appear to demonstrate that the nominee is sufficiently skilled for the nominated occupation.
The nominee’s credentials would be assessed against the qualification level and responsibilities listed under ANZSCO for the nominated occupation. It is important for the correct ANZSCO code to be used in the nomination application.
Skills assessments are compulsory for certain trade occupations. To further complicate things, whether the skills assessment is necessary or not will also depend on the nominee country of passport. The list of those occupations and countries for which skills assessments are required can be found on the Trades Recognition Australia (TRA) website under “nominated occupations and their countries”. There are exemptions that may apply.
Employment terms and conditions are no less favourable
It is important that the others terms and conditions of employment will not be any less favourable than what would be provided to an Australian citizen or permanent resident performing the same work at the same location. Terms and conditions covers remuneration, work hours, annual leave etc. and should not be in conflict with the Fair Work Act 2009.
Market salary rate
Market salary rate is the term used for the standard of remuneration as would be provided to an Australian citizen or permanent resident in the same work at the same location and the nominee’s proposed pay must not fall under it. What the market salary rate is needs to be proven by the nominator in the application; there are no predetermined numbers as this varies with the occupation, location and time.
Evidencing market salary rate can be done through the provision of employment and payroll documents should another there be an existing or previous Australian citizen or permanent resident in the same role in the sponsoring business. Should there this position be new in the sponsoring business, market research will need to be done. Market research materials may include fair work instruments, state industrial instruments, transition instruments, remuneration surveys, job ads and so forth. Again, it is important that all these relate to a highly similar position in the same location.
Wait, there’s more. The Department of Immigration and Border Protection (DIBP) won’t be tricked. You’ll be asked to provide base rate of pay as well guaranteed annual earnings in both your evidence for market salary rate as well as well as what is proposed for the nominee. It will be picked up if market salary rate is $55,000 a year for 35 hours of work a week, but the nominee has only been offered $55,000 for 45 work hours a week. It is recognised that remuneration may come in different forms making it hard to compare, and so for clarity,guaranteed annual earnings may include items of non monetary value, so long as it is contracted and predetermined. Payments that cannot be included (and cannot be used to pad up a nominee’s proposed pay) are allowances (unless predetermined and guaranteed), overtime, bonuses, commissions, reimbursements and superannuation.
Read about 457 visa holders and part time work
Temporary skilled migration income threshold
We’re not quite done with market salary rate yet. Market salary rate must also fall above the temporary skilled migration income threshold (TSMIT). The current TSMIT (November 2016) is $53,900 AUD.
It doesn’t even matter if you are willing to pay above the TSMIT and base rate of pay again applies. If market rate salary was significantly under the TSMIT and the nominee was offered a pay above the TSMIT, it would look quite suspicious.
The TSMIT is there to protect visa holders, ensuring that they are in Australia for genuine reasons, contributing at an appropriate skill level that deserves a pay that is sufficient for them to live comfortably in Australia and without breaching any visa conditions.
Of course there are exceptions. We’ll take a look into market salary rate and TSMIT in a later article, as this is quite a complex topic.
Most 457 requirements seek to ensure that the employment is legitimate and sincere. The genuine position requirement asks that the position does exist and is in fact the nominated occupation.There should be no disguising the responsibilities of the actual vacancy to make it one that exists on the CSOL.
We’ve written about how the DIBP assesses genuine position, and you can read that article here. Have no doubt that extra care must be taken in proving this. A refusal will push the application into review which will extend the total processing time to well over a year.
Labour Market Testing
“Employers seeking to access the subclass 457 visa programme must first test the local labour market to ensure that there is no suitably qualified and experienced Australian citizen or permanent resident or ‘eligible temporary visa holder’ readily available to fill that position.”
Department of Immigration and Border Protection’s (DIBP’s) websiteLabour market testing (LMT) doesn’t apply to all applications. ANZSCO skill level 1 and 2 occupations are exempt from this requirement, unless the qualification or experience is protected. These protected occupations are engineering and nursing. There are other exemptions that apply, such as if tt would affect international trade obligations e.g. FTA, and will be expanding upon in a later article that will delve into the finer details of LMT. For now, more information for which occupations labour marketing testing is compulsory, and where there are exemptions, can be read on the DIBP’s website on this page under the nomination tab.
Should LMT be required, it must occur within 12 months before the application or from the point at which the position in the sponsoring company became vacant.
LMT can be evidenced through past advertising. The materials that would support this would include copies of the actual ad itself and receipts for having paid for advertising. Any other supporting documents would only help your case. The DIBP encourages that a summary page of all advertising undertaken is also provided and has an official template to be used. You can find this template here.
LMT evidence needs to be submitted on the same day as the application is lodged. Failure to do so will result in a refusal. Evidence may be provided on the next day, only if you have experienced difficulties with immiAccount and/or BPAY payments. As such, next day evidence submissions must also be accompanied with an explanation of the issues encountered.
Paying for sponsorship
The nominator and the nominee must declare that there has been no payment for sponsorship.
“Section 245AR prohibits a person from asking for, or receiving, any benefit in return for that person (or a third party on their behalf) initiating a sponsorship-related event (or not initiating a negative event – for example, not terminating employment in return for a benefit). It is irrelevant whether the sponsorship-related event actually occurs (s245AR(2)).”
‘Payment’ covers any benefit, regardless of it is a monetary transaction or not. In a genuine situation, the employer has need for a skilled worker in the nominated occupation and should not be employing the nominee for any other reason than not being able to find an appropriate match from the local labour market. This requirement is in place to protect both local labour as well as internationals.
We’d say that you’d really need to be careful around meeting requirements for market salary rate, the TSMIT and LMT and genuine position. If you’re a first timer, I really recommend that you speak to a very experienced migration agent.
Here are related articles about the 457 that we think you might like to read:
Jee Eun Han
Senior Migration Agent, Australian Immigration Law Services