Temporary Business (Long Stay) - Standard Business Sponsorship (Subclass

457)

Introduction

So you are in Australia and have been working on your working holiday visa for an employer
for 4 months or so, know that your 6-month limitation on working for the one employer is
fast approaching but want to keep working for your boss and want to stay on in Australia as
long as possible. Alternatively, you want to come to Australia to work and live and are not
eligible for permanent migration as you cannot satisfy the pointes test requirement.

If this sounds like you, then a very real visa option for you is the subclass 457 Sponsored
temporary visa which allows you to live and work in Australia for up to 4 years for the
sponsoring employer.

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.

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 – Sponsorship, Nomination and 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 but will commence with stage 3 – the visa
application first and then look at the sponsorship and nomination application.

While the 3 stages are distinct and separate, all 3 applications can be lodged at the same
time to be considered together by a case officer of the Department of Immigration and
Citizenship.

Stage 3 - Employee Eligibility for the grant of a subclass 457 visa

Skills

As an employee, to be granted a subclass 457 visa, first of all you need an employer willing
to sponsor you to apply for the subclass 457 visa and also to offer you work in a skilled
position that is set down on the subclass 457 gazette notice. Just like the A-list nightclub
doorman, if your occupation is not on the list, then you’re not coming in and cannot
successfully apply for, and be granted, a subclass 457 visa.

Once you have a sponsor, the next step is establishing 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 in trade
related occupations and also chefs.

Strong English Skills

You will also have to show you have strong English language skills, unless you are from
England, Ireland, Canada and the USA and provide, with your application, an International
English Language Testing System (IELTS) test score showing average band score of 4.5
across the four test components (or higher where required for
licensing/registration/membership).

Please note that the Department of Immigration & Citizenship has stated that the minimum
IELTS level will be raised to 5 across all bands after 1 July 2009.

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.

Minimum / Market Salary

Finally, your employer will also have to demonstrate that you will be paid at least the
minimum salary level that applies at the time a decision is made on your visa and that the
conditions of your employment are in line with any and all applicable Australian employment
legislation and awards.

In September 2009 employers will be required to pay sponsored employees on subclass 457
visas a ‘market salary’ but the Department of Immigration & Citizenship are not presently
able to explain how this ‘market salary’ will be calculated.

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 application must be lodged and approved before you can start work with
the new employer.

You cannot simply transfer or just advise the Department of Immigration and Citizenship
that you have changed employers. A new and completed sponsorship, nomination and
subclass 457 visa application will have to be lodged and approved before you can change to
commence work with a new employer.

Stages 1 & 2 – Sponsorship and Nomination

What must a business show to be approved as a standard business sponsor to

sponsor an overseas worker onto a subclass 457 visa?
It is worth noting that recent policy changes suggest that assessment of sponsorship
applications are going to be tested more rigorously and that it will be more difficult to get
approval to sponsor employees on a 457 visa.

However, as the policy changes are so new, it is impossible to comment to what extent
standard business sponsorship applications and associated nominations and subclass 457
visa applications will be rejected where historically they would otherwise have been
approved.

It is beyond the scope of this article to go into detail about all criteria that must be met by a
sponsoring employer however, the following criteria are the stumbling blocks at which you
can expect most sponsorship applications to fall over.

1. Lawfully and actively operating a business

As obvious as it seems, 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 may be considered if there is clear evidence of

intention to establish the business. As examples such things will be looked at, among other
things, like access to adequate money to achieve the establishment of the business, a
strong business plan showing how the success of the business will be achieved and that the
obligations owed to the sponsored subclass 457 visa holding worker can and will be met.

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.

2. Direct employer of the employee

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.

Determining who is the ‘direct employer’ is very much a question of the 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.

3.. Good business record and abide by 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.

4. Benefit to Australia

The employment of skilled workers from overseas must benefit Australia and not just the
sponsoring business.

To meet this criterion you must show that the employment of the sponsored person in the
nominated role, and the grant of the subclass 457 visa, will lead to the, maintenance of or
creation of employment for Australian citizens or Australian permanent residents, Expansion
in the trade of Australian goods or services, Improvement of business links with international
markets or Improvement of or an increase in competitiveness within the relevant sectors of
the Australian economy.

Advance skills of existing workforce

The employer must also demonstrate that their Australian business operations will meet one
of the following requirements introduce, use or create new business skills, introduce, use or
create new or improved technology, have a satisfactory record of, or a demonstrated
commitment towards training Australian citizens and Australian permanent residents.

Since the announcement of the cuts to the Australian Migration program by the Minister for
Immigration and Citizenship, Senator Christopher Evans, these above criteria are arguably
now being tested much more rigorously leading to refusals of sponsorship applications that
historically would have been successful.

Regional employer concessions

If you are an employer in a regional area in Australia you may be eligible for concessions in
meeting the minimum salary and skill level requirements for your nominated position.

What does being approved as a Standard Business Sponsor to sponsor a subclass

457 temporary business long stay visa holder all you to do?

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 after which
time you will need to make a new sponsorship and visa application.

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.