This article provides employers and employees with guidance about
- the ability of an employer to sponsor overseas employees on either a temporary employer visa (also known as a “456” or a “457” visa) or a permanent visa also known as an “employer nomination visa”
- the obligations that are placed on the sponsoring employers under each type of visa
- whether a prospective employee might be able to satisfy the relevant visa criteria.
Our expertise
Craddock Murray Neumann has lawyers who:
- hold a Masters Degree in Migration and Administrative Law, and who has assisted numerous skilled and business visa applicants over the years
- were awarded the University Medal (UTS) and who, prior to studying law, worked with the Department of Immigration for a number of years gaining first-hand knowledge of the procedures and culture of the Department
- have previously been employed by the Australian Government Solicitor (Commonwealth Attorney General’s Department) acting for the Department of Immigration in a number of prominent cases before the Federal Court.
As lawyers, we understand evidence and how to present it, and our background and experience enable us to prepare your sponsorship, nomination or visa application so that all the relevant criteria is addressed, and all the relevant evidence is included. We can assist you to achieve your desired business / migration outcome as expeditiously as possible.
Becoming a sponsor
In order to be approved as a business sponsor an employer must demonstrate, amongst other things, that:
- its financial position is strong enough to meet its undertakings as a business sponsor and
- the business has a satisfactory record of, or commitment to, training its Australian citizen and permanent resident employees.
Where the business sponsor is an established, profitable company, with:
- Australian citizen or permanent resident employees and
- a well-defined training schedule as part of which the Australian employees receive training,
the business should find that if their sponsorship application is properly framed, sponsoring an overseas employee is relatively straight forward.
However some businesses have difficulty establishing that they have sufficient financial resources or that they have a satisfactory record of training their Australian citizen or permanent resident employees. These difficulties are amplified when the business has only recently commenced trading.
When these difficulties arise, if the employer presents:
- a careful analysis of the business operations
- proper information about its financial position - and the financial position of the business owners
it is often possible for us to present a sponsorship application that has reasonable prospects of success.
Sponsorship obligations
If the business sponsors an overseas worker on a 457 (temporary) visa, the business will be subjected to a number of sponsorship obligations. These obligations do not apply to employer nomination (permanent) visas, however businesses that nominate employees for the permanent visa must agree to employ them for a minimum of three years.
In addition to its general obligations under the law, as part of its sponsorship of the 457 visa holder, the business will be required to:
- meet the costs of the department locating and detaining the 457 visa holder if the visa holder remains in Australia after their visa expires or is cancelled;
- meet the costs incurred as a result of treatment provided to the 457 visa holder at a public hospital;
- comply with the department’s monitoring activities and advise the department of any prescribed change in circumstances.
There are steps that can be taken by the business to limit any potential liability that may arise under the sponsorship obligations.
The sponsoring business also agrees to employ the 457 visa holder in a nominated role at a nominated place. Problems can arise where the employee changes his or her role in the business or changes the location of their work.
The most appropriate sponsorship option will ultimately depend on the circumstances of the business and the visa applicant. We are able to provide you with detailed advice as to the most suitable course of action for your business that takes into account all of the relevant circumstances.
What types of workers can be sponsored
The following table compares the requirements that the overseas employee must satisfy to be granted a 457 / employer nomination visa based on an existing standard business sponsorship and an employer nomination.
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Criteria
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Subclass 457 visa
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Employer Nomination Visa
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Age
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No prescribed age limit.
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Less than 45 unless exceptional circumstances.
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English language
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Varies, but if required the overseas worker must have an overall IELTS score of 4.5.
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IELTS test generally required. Applicants require vocational or functional English depending on type of application, unless exceptional circumstances apply.
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Positive skills assessment required
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Generally not required, however a skills assessment may be requested if there is doubt as to the overseas worker’s skills.
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Yes, unless the employee will paid more than $165,000 per annum. Other exceptions may apply where the employee is already working for the company.
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Licencing / member of professional body
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Where required in Australia, a licence and membership must be held by visa holder.
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Where required in Australia, a licence and membership must be held by visa holder.
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If you wish to discuss your matter with our migration lawyers, please contact either Michael McCrudden or Nick Houen on (02) 8268 4000 or by email on
mmccrudden@craddock.com.au