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 3^rd 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.