Year: 2016

Subclass 457 Visa and Self-Sponsorship

Posted by Rebecca Berkovic on

In the past, it has been possible for a visa applicant to sponsor themselves for a Temporary Work (Skilled) (subclass 457) visa through self-sponsorship as a business owner. This avenue for visa applicants has now been closed by the Department of Immigration and Border Protection (DIBP).

What is self-sponsorship?

Self- sponsorship involved the following situation:

  • Where a visa applicant set up or ran either an Australian or international company;
  • That company then nominated the owner for a subclass 457 visa; and
  • A subclass 457 visa was granted to enable the owner to work as an employee in the business.

The idea of self-sponsorship is based on the corporations’ law principle that a company is a separate entity to an individual and therefore the company was a separate legal person to the visa applicant. This principle only applied where the business was a registered company and not a sole trader or partnership.

The visa applicant could be nominated to work as an employee of the business as long as there was legally an employer-employee relationship between the visa applicant and the company.

Change in policy

There has now been a change in the policy of the DIBP to prevent the situation of self-sponsorship into the future.

The DIBP has amended the policy to state that:

“The program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.”

Basically, it will not be considered a “genuine” position by the DIBP if the director of a company (Australian or international), nominates themselves for a subclass 457 visa any longer.

Further advice

Requirements of the subclass 457 visa are ever-changing and often complicated.

For advice regarding Australian work visas and sponsoring overseas workers, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

New Short-Term Work Visa

Posted by Rebecca Berkovic on

Discussions are underway by the Australian Federal Government to introduce a new short-term work visa to enable skilled migrants to work in Australia for up to a year. This visa will be called the Short-Term Mobility visa.

So far, details of the visa can be summarised as follows:

When will this visa be implemented?

This visa is proposed to be introduced in July 2016. We will keep our clients, contacts and colleagues informed when it does come into effect.

Length of the visa

The visa is intended to be valid for a 12 month period.

Terms of the visa

This visa will allow multiple entries into Australia by the visa holder to undertake specialised work for a short-term period.

An advantage of the Short-Term Mobility visa for Australian businesses requiring the services of overseas workers is that visa applicants will not be required to meet a minimum level of English language proficiency and no market testing provisions are intended to apply to this short-term visa.

Applications can be made from Australia or offshore. However, family members will not be able to be included as secondary applicants on the Short Term Mobility visa.

Intended purpose

The Short-Term Mobility visa is part of the Australian Government’s initiative to simplify work visas and enable Australian businesses more flexibility in terms of attracting skilled migrant workers for short-term periods of employment. This visa will allow employers to fill short-term vacancies for specialised workers and may include intra-company transfer.

The Short-Term Mobility visa will also enable businesses to bring skilled workers to Australia without the pressures and costs of the Temporary Work (Skilled) (subclass 457) visa, which can be bureaucratically cumbersome.

For advice regarding Australian work visas and sponsoring overseas workers, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Employer Sponsored Visas and New Declaration Requirement

Posted by Rebecca Berkovic on

Following the introduction of the Migration Amendment (Charging for a Migration Outcome) Act in December 2015, it has become illegal for employers to receive a “benefit” for sponsoring workers for an Australian visa.

Practically, this affects our clients in that the Department of Immigration and Border Protection (DIBP ) has now introduced new declaration forms which are required to be signed by both the sponsoring employer and the visa applicant when applying for an Employer Sponsored visa including:

  1. Temporary Work (Skilled) (subclass 457) visas;
  2. Employer Nomination Scheme (subclass 186) visas; and
  3. Regional Sponsored Migration Scheme (subclass 187) visas.

Links to the forms are as follows:

Sponsoring Employer Declaration

Visa Applicant Declaration

A sponsoring employer must now certify that they have not received a “benefit” for sponsoring the overseas worker for an Australian visa. A “benefit” is defined as:

(a) A payment or other valuable consideration;

(b) A deduction of an amount;

(c) Any kind of real or personal property;

(d) An advantage;

(e) A service; or

(f) A gift.

For subclasses 186 and 187 nomination and visa applications lodged after 14 December 2015, declaration forms must also be lodged with the DIBP.

For advice regarding Employer Sponsored visas, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

Proposed Increase in Salary Threshold for 457 Visas

Posted by Rebecca Berkovic on

The Temporary Work (Skilled) (subclass 457) visa is a political hot potato, with government policies ever-changing as the Australian Government is torn between business and industry groups wishing to maintain their ability to employ appropriate workers, and the union movement wishing to protect the Australian workforce.  Regardless of politics, the subclass 457 visa remains an important avenue for Australian businesses to be able to employ skilled overseas workers.

In order to limit the eligibility of overseas workers for the subclass 457 visa, a requirement for nominating a visa applicant under the program is to demonstrate not just that they are going to be paid the Temporary Skilled Migration Income Threshold (TSMIT) by the 457 business sponsor, but that the market salary rate for an equivalent Australian worker in that particular location is above this threshold.

Currently the TSMIT sits at $53,900.  Discussions to increase or reduce this threshold are ongoing, however it seems that it is likely that the Australian Government will be increasing the TSMIT in the near future.  However, increasing the TSMIT will create the following effects:

  1. It will further limit the ability of overseas graduates to be eligible for the subclass 457 visa in many industries; and
  2. It will limit the ability of regional businesses to sponsor overseas workers where the salary in that location is not over the threshold.

The Australian Chamber of Commerce and Industry (ACCI) have proposed  that employers in regional locations be allowed to recruit skilled overseas workers on salaries lower than the threshold, provided this accords with Australian market rates for workers in that regional area.

We will keep our clients, colleagues and contacts informed once there is concrete information regarding whether and when there is an increase in the TSMIT for subclass 457 visa holders.

For advice regarding sponsoring workers on a subclass 457 visa, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.

‘Payment for Visas’ and Avoiding Penalties as a 457 Business Sponsor

Posted by Rebecca Berkovic on

In the aftermath of the 7-Eleven scandal last year, we have seen measures introduced by the Australian Government to penalise 457 business sponsors acting fraudulently or obtaining a financial benefit from sponsoring overseas workers. Fairfax Media reported that 457 visa holders were paying 7-Eleven chain stores up to $70,000 to help secure Australian work visas for their staff as a sideline revenue stream.

It has been asserted that certain 7-Eleven franchisees were conducting a 457 ‘visa factory,’ charging workers between $20,000 and $70,000 to sponsor them. In an effort to prevent this situation in the future, the Migration Amendment (Charging for a Migration Outcome) Act was introduced by the Australian Parliament last month.

Why sponsor overseas workers?

Sponsoring 457 visa holders is an important way for Australian businesses to retain and hire skilled overseas workers, especially where there is a gap in the Australian market for particular occupations.

The 457 visa program is crucial for Australian businesses and it is in the Australian national interest that companies are able to employ appropriate staff with the right skills and knowledge to be able to perform duties within the business.

‘Payment for Visas’ conduct

However, businesses now risk penalties under the Migration Amendment (Charging for a Migration Outcome) Act (the Act), for receiving “benefits” for sponsoring 457 visa holders. The Act has made it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events.

“Benefit” is intended to include any payment or deduction, and any kind of real or personal property, advantage, service or gift. (It does not include payment for the provision of a professional service, such as by a migration or recruitment agent.)

‘Payment for visas’ can now be penalised in the following manner:

  1. Criminal: The Act has rendered it a criminal offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship-related event. The offence may be punishable by a maximum of two years’ imprisonment or a fine of up to currently $64,800 for an individual person or $324,000 for a body corporate; and
  2. Civil: The maximum civil penalty equates to $43,200 for an individual person or $216,000 for a body corporate.

Also, for individuals- the Minister for Immigration is now able to cancel a subclass 457 visa where a benefit was asked for or received in exchange for sponsorship.

How can a business sponsor avoid penalties?

In operating as a 457 business sponsor, it is necessary that a business protects itself and ensures that it meets its sponsorship obligations. Our suggestions for a 457 business sponsor to protect itself are as follows:

  • Ensure that when sponsoring a 457 visa holder the business, or individuals within the business, do not receive a payment or gift for sponsoring the overseas worker;
  • Ensure that the 457 visa holder employee is working in the nominated occupation specified to the Department of Immigration and Border Protection (DIBP);
  • Ensure that the 457 visa holder is paid in accordance with information provided to the DIBP; and
  • Keep records of the 457 visa holder’s employment within the company, such as payslips and leave records.

For advice regarding sponsoring workers on a subclass 457 visa and compliance issues, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance or call our office:

Australia: +61 3 9021 0986
London: +44 20 3670 4586

We look forward to assisting you in 2016.

Disclaimer:

The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.