Holders of Temporary Work (Skilled) (subclass 457) visas are subject to the condition 8107 work restriction.  Condition 8107 means that a subclass 457 visa holder can generally only work for their nominating employer (or associated entities in certain situations).  In accordance with condition 8107, subclass 457 visa holders must also work in the occupation which is specified in the nomination provided to the Australian Department of Immigration and Border Protection (DIBP).

Therefore, if a 457 visa holder’s employment ceases (for whatever reason) their visa may be cancelled, unless they are nominated by a new employer, as explained below.

Is it Possible for 457 Visa Holders to Change Employers?

Subclass 457 visa holders are able to transfer employers, even though they are subject to condition 8107.  Previously, nomination with the new employer would need to be  approved within 90 days after termination or resignation from the initial sponsoring employer.

When transferring employers, subclass 457 visa holders are able to retain their subclass 457 visa and are not required to lodge a new visa application.  However, the new sponsoring business in the past must have obtained approval as a standard business sponsor.  The new sponsoring employer also required approval from the DIBP to nominate the specific subclass 457 visa holder.

Condition 8107 Policy Change

Until now, if a subclass 457 visa holder did not have their nomination with a new employer approved by the DIBP within 90 days of termination or resignation of employment from their initial sponsoring employer, the visa holder was liable to have their visa cancelled in breach of condition 8107.  This led to unfortunate situations for subclass 457 visa holders who tried to comply, but processing delays for new sponsorship and nomination applications led to an inadvertent breach of condition 8107 because the 90 day time limit had expired.

The DIBP has now changed this policy and 457 Programme Management has confirmed with the Cancellations Team that cancellation for not complying with condition 8107 will not be considered where a visa holder has ceased employment with their nominated employer, but have lodged a new nomination application within 90 days.

However, in the situation where a new nomination application has not been lodged within this 90 day period, cancellations will proceed and visa holders will receive a Notice of Intention to Consider Cancellation (NOICC).

This is an important policy change for businesses wishing to sponsor a candidate already holding a subclass 457 visa because it provides greater certainty that the subclass 457 visa holder’s current visa will not be cancelled if there are processing delays for the new nomination application or sponsorship.  The policy will also assist subclass 457 visa holders transferring employers since their visa will no longer be subject to cancellation for breach of condition 8107, provided they have lodged a new nomination application within 90 days.

Potential Change of Employer Transfer Time Period

From 19 November 2016, the DIBP has proposed that the time period a primary subclass 457 visa holder can remain in Australia after their employment ceases be reduced from the current 90 days to 60 days.

This proposal is subject to approval by the Governor–General.  If this policy change proceeds, it would apply to subclass 457 visas granted on, or after, 19 November 2016.

For advice regarding subclass 457 sponsorship, nomination and visa applications, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

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.

At the moment, for a business to nominate an overseas worker under the Temporary Work (Skilled) (subclass 457) visa program, it is necessary for the position to be ‘genuine.’  The ‘genuineness’ criteria was introduced on 1 July 2013 and has created additional challenges when businesses apply to nominate an overseas worker under the 457 visa program.

Impact of Harsh Application of the 457 Nomination ‘Genuineness’ Criteria

The concern with the genuineness criteria has been that its application is highly subjective and has led to uncertainty as to whether a subclass 457 nomination application will be approved by the Department of Immigration and Border Protection (DIBP).  The introduction of the ‘genuineness’ criteria has led to a stark increase in refusal rates for 457 nominations from approximately 5% for the 2013-2014 program year to approximately 11% the following year.

The Migration Review Tribunal (MRT) is now congested with appeals of subclass 457 nomination applications refused on the basis that a case officer of the DIBP determined that the application was not ‘genuine’ when this provision may have been applied harshly or misapplied by a case officer. Waiting times for MRT appeals are now around 12 months given the sheer volume of the ‘genuineness’ appeals.

A host of cases exist where subclass 457 nomination applications have been ‘genuine’ in terms of being legitimate, but have been refused where a case officer decided that a particular business did not require that position.

Good News for the Future of 457 Nominations

In good news for businesses needing to nominate overseas workers on subclass 457 visas, amendments will be made to the ‘genuineness’ criteria.  The DIBP has stated that policy will be introduced on 1 July 2016 to clarify application by case officers of this provision.  The DIBP published an update today stating:

“The new guidelines clarify that the ‘genuineness’ requirement does not equate to an assessment of whether or not the position is ‘needed’, but whether the position associated with the nominated occupation is genuine. That is, the position must exist and also be what it purports to be.

 It explains that officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application unless there are doubts as to the veracity of these certifications or the intent behind the nomination.”

This is a positive step on the part of the DIBP and we hope that the new policy clarification will lead to a greater level of certainty for businesses sponsoring workers on subclass 457 visas as to the chances of success of their nomination application meeting stipulated criteria.  We look forward to being able to operate in a more consistent processing environment.

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.

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.

We have witnessed a steady stream of amendments of late to the Temporary Work (Skilled) (subclass 457) visa regime.  Such amendments are based primarily upon policies of the Australian Federal Government, media influence, public opinion, union lobbying, pressure from business groups and international trade relationships.

The most recent amendment to the subclass 457 visa program focuses on the new obligation for 457 business sponsors to engage in ‘Non-Discriminatory Recruitment Practices.’  We have outlined the new requirement below:

From attestation to obligation of ‘Non-Discriminatory Recruitment Practices’

From 19 April 2016, there is a new obligation  whereby 457 business sponsors must not “engage in discriminatory recruitment practices.”  Previously, when applying to become a 457 business sponsor, employers were required to attest that they did not engage in discriminatory recruitment practices, but now the Department of Immigration and Border Protection (DIBP) has rendered this provision binding on sponsors.

Essentially what this means is that whilst an employer is registered as a 457 business sponsor, they must be able to demonstrate a commitment to employing local labour.

What is a discriminatory recruitment practice?

The Australian Government has stated that a ‘discriminatory recruitment practice’ will be defined as “a recruitment practice that directly, or indirectly, discriminates against a person based on the immigration status or citizenship of the person, other than a practice engaged in to comply with a Commonwealth, State or Territory law.”

It does not include discrimination in recruitment based on other grounds such as sex, gender, race, social group or pregnancy.  These issues are dealt with by other agencies such as the Fair Work Ombudsman or the Australian Human Rights Commission.

How will the new ‘Non-Discriminatory Recruitment Practices’ obligation affect employers?

Businesses which are sponsoring, or needing to sponsor, overseas workers on subclass 457 visas will be impacted in the following ways:

1. When applying to become a 457 visa sponsor, an employer must show that it has not engaged in discriminatory recruitment practices; and
2. When a business is registered as a business sponsor, it needs to ensure that it does not engage in discrimination against a person based on the immigration status or citizenship of the person.

 How can employers abide by this requirement?

The binding obligation for 457 business sponsors was introduced to ensure that employers do not rely on the 457 visa program to employ foreign workers without having regard to the availability of local labour.

In order to help establish that 457 business sponsors have met the new obligation we recommend that:

1. Employers applying to act as 457 business sponsors: Businesses acknowledge in writing that they will not discriminate against local workers in their recruitment practices.
2. Employers already registered as 457 business sponsors: Sponsors keep documents on hand that demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.

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.

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.

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.

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.

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.