Australian Migration Visa Lawyers - Visas - Corporate / Employer Sponsored Visas

Visa Categories Corporate Visas / Employer Sponsored Visas

We assist corporate clients looking to sponsor and employ skilled workers who have recognised qualifications and skills/or experience in certain occupations required in Australia. We also assist skilled migrants looking to be employed in Australia on a temporary or permanent basis by their employer.

The main visa types in this category are:

Subclass 457 - Business (Long Stay) visa – Standard Business Sponsorship
Employer Nomination Scheme (subclass 121/856)
Regional Sponsored Migration Scheme (subclass 119/857)

Subclass 457 - Business (Long Stay) visa – Standard Business Sponsorship

The Business (Long Stay) – Subclass 457 (Sponsorship & Nomination) visa (commonly known as a Work Permit) is valid for stays between 3 months and 4 years. This visa is used by Australian businesses that seek to employ highly skilled personnel from overseas. The position to be filled must require specialist or technical skills and/or knowledge and the visa applicant must be able to show that they have the education and / or work experience to fill this position.

Essentially there are three steps involved in a visa application of this type:

The company must apply for sponsorship approval;
The company must nominate a position to be filled; and
The visa applicant must lodge a visa application. Sponsorship Approval

The sponsorship application process will involve an assessment of the company's business standing, the proposed benefit to Australia as a result of employment of the applicant and the company's commitment to training Australian citizens and residents.

In order to be approved as a sponsor, the company will need to be able to demonstrate that:

it is a lawfully and actively operating business. The business must be actually and actively engaged in business activities. OR it is an overseas business that will establish a business in Australia and then be actively engaged in business activities.
it is or will be the direct employer of the temporary business entrant. Applicants for sponsorship must be the direct employer of the temporary business entrant. This usually involves responsibility for payment of salaries, PAYE tax installments, superannuation, conditions of employment and day to day supervision of the employee.
it is able to meet sponsorship undertakings. The Department of Immigration Multicultural & Indigenous Affairs (DIAC) may check that the company has a satisfactory record of compliance with immigration laws and that there is no available adverse information about the business and/or its principals.
the employment of the visa applicant will benefit Australia. The company must show how the proposed employment will contribute to either:
- the creation or maintenance of employment for citizens, or permanent residents of Australia; or
- expanding Australian trade in goods or services; or
- improving Australian business links with international markets; or
- increasing competitiveness within sectors of the Australian economy.
it either utilises new technology in its business OR has a commitment towards the training of Australian citizens. The Company must demonstrate that their Australian business operations:
- will introduce, use or create new or improved technology or new business skills; or
- have a satisfactory record of, or a demonstrated commitment towards, training Australian citizens and Australian permanent residents in their business operations.
it agrees to abide by the relevant sponsorship undertakings. A list of the statutorily enshrined undertakings with which the company must comply is set out below.

Nomination of position to be filled

The purpose of this part of the application is to identify the position to be filled by the visa applicant, and the skills and experience required for the position.

When making a decision on the approval of the nomination application, DIAC will assess whether:

the position meets the minimum skills threshold. A minimum skill level applies to all positions to be filled by overseas employees. DIAC will assess the nominated position according to the Australian Standard Classification of Occupations in order to determine whether roles and responsibilities of the nominated position meet the skills threshold for the corresponding occupation; and
the position is to be remunerated at a level above $47,480 per annum based on a 38 hour work week. The salary is the gross salary paid, excluding accommodation or rental assistance, bonuses or commissions, share schemes, vehicle allowances, superannuation and any other non-salary benefits.

Visa Application

The third and final step in the application process is the completion of the visa application on behalf of the applicant.

In order for the visa to be granted, it will need to demonstrate that the visa applicant:

is employed by the Company;
has skills which match those required for the position which has been nominated;
has attributes consistent with his proposed employment in Australia; and
meets all necessary health and character requirements;

Sponsorship Undertakings

Nature of Undertaking	Specific Obligations on sponsoring employer
Must be responsible for costs	ensure that the cost of return travel for an employee (and accompanying family member) is met to return them to their home country pay all medical or hospital expenses for an employee (and accompanying family member) for treatment in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements) this undertaking continues until all expenses are paid repay the Australian Government for money it spends as a result of the employee's stay in Australia. These costs may include those relating to locating and detaining the employee (and accompanying family member) if they become unlawful, removing them from Australia and processing any application they make for a protection visa
Must comply with immigration laws	comply with responsibilities under Australian immigration laws not employ a person who would be breaking Australian immigration laws by being employed ensure that the employee is paid at least the minimum salary level that applies at the time the decision is made on their visa.
Must cooperate with the department	notify the department within 5 working days after a sponsored employee ceases to work for the sponsoring employer notify the department of: (a) any change in circumstances that may affect the employer's capacity to honour its sponsorship undertakings or (b) any change to the information that contributed to the employer's ability to be approved as a sponsor or the approval of a nomination cooperate with the department's monitoring of the business or of any sponsored employees. This undertaking continues until the earlier of the following. when the employee leaves Australia and their visa ceases, or when the employee is granted another substantive visa when the sponsoring employer ceases to be an approved sponsor of the employee.
Must comply with the terms of the nomination	notify the department of any change in the employee's work location (if the approval of the nomination is granted on the condition that the employee must be working in a particular location).
Must comply with workplace relations laws	comply with all relevant laws relating to workplace relations and any workplace agreements that have been put in place for the employee ensure that the employee holds any licence, registration or membership that is mandatory for the performance of their work make superannuation contributions required for employees while they are employed by the business deduct tax instalments and make payments of tax for the employee while they are employed by the business.

Employer Nomination Scheme (subclass 121/856)

This visa category allows Australian employers to fill highly skilled positions in Australia with a non-Australian citizen or permanent resident on a permanent basis. The position must have been unable to have been filled from within the Australian labour market or through the company’s own training programmes.

The application follows a two-step process:

Nomination by the employer;
Personal visa application by the nominated individual.

Essentially the employer must be able to demonstrate that they:

are actively and lawfully operating in Australia;
have a genuine need for a paid employee to fill a position in the employer’s business;
have a satisfactory record of compliance with immigration law and workplace relations law;
have made adequate provision for training existing Australian employees, or if a newly established
business, be making adequate provision for future training of Australian employees.

The position in the employer’s business must:

be full-time and available for at least 3 years;
be in accordance with the standards for working conditions provided under Australian industrial laws;
correspond to an occupation on the ENS List of Occupations (which is published in a Government
Gazette Notice);
attract a base salary that is at least the minimum salary that has been published in a Government
Gazette Notice for the occupation. The minimum annual base salary (excluding superannuation or
any allowances) is currently $47,480.00 or $65,020 for IT Professionals.

The visa applicant must satisfy ONE of the following requirements:

have worked full-time in Australia, while holding a qualifying visa, in the occupation for which they
have been nominated for the last 2 years, including at least the last 1 year working for the nominating employer; OR
have been nominated to fill a highly paid senior executive position with a base salary of $165,000 per annum; OR
have had their skills assessed as suitable by the relevant skills assessing authority, and unless exceptional circumstances apply, have at least 3 years experience in the occupation.

The applicant must also satisfy any mandatory licensing, registration or professional membership requirements. The applicant and all family unit members must meet mandatory health and character requirements.

In certain circumstances, where a position is so unusual or highly specialised that the employer is unlikely to find anyone who meets the established criteria to fill the vacancy, exceptions to the 3 years experience, age or English language requirements can be made.

Regional Sponsored Migration Scheme (subclass 119/857)

This visa allows Australian employers in regional or low population areas of Australia to fill skilled positions with non-Australian citizens/permanent residents on a permanent basis where they cannot fill the skilled vacancies from the Australian Labour Market.

Employers considering nominating persons under the RSMS may identify suitable applicants in various ways, including:

through their efforts in testing the local labour market (advertising);
personal contact and/or experience with the nominee (if the applicant is already working for them; EG – on
an SIR Visa or temporary work permit);
recommendation from third parties;
through DIAC’s Skill Matching program.

Skill Matching

Skill matching is made possible by the Skill Matching Database which contains the educational, occupational & personal details of Skilled–Independent & Skill Matching visa applicants. This means an applicant’s details will be on this list if they have applied for a General Skilled Visa.

The Skill Matching Database is updated monthly and distributed to all State & Territory governments and to a network of regional development authorities. Employers can use the database to identify suitable applicants for nomination under the RSMS. Applicants nominated from the database may not need to lodge a further visa application.

RSMS process

The RSMS process consists of three stages:

Certification of the nomination/vacancy by a Regional Certifying Body;
Nomination is assessed by DIAC;
Nominee's application for a visa.

1. Certification Requirements The employer must be able to demonstrate to a certifying body that:

there is a genuine need for a paid employee in a business that is actively and lawfully operating in regional Australia;
the position is a full-time vacancy available in a business operating in regional Australia for at least 2 consecutive years;
unless exceptional circumstances apply, the position requires qualifications equivalent to at least Australian diploma level (this includes trade certificates);
there is, or will be, an employment contract or letter of appointment provided for the position before a nominee’s visa can be granted.

There is a special form which must be submitted to the Regional Certifying Body and we would assist you with this as part of the visa process.

2. Employer Nomination Assessment

The completed and certified nomination (once approved) needs to be forwarded to a departmental Business Centre which needs to be satisfied that:

the nomination has been correctly certified by a Regional Certifying Body;
the position requires the appointment of a person who has qualifications equivalent to at least an Australian diploma level (includes trade certificates) unless exceptional circumstances apply;
the position is in accordance with the standards for working conditions provided for in relevant Australian workplace legislation and awards and the base salary is at least $39,100p.a. based on a 38 hour work week (excluding superannuation and other allowances), and
nothing adverse is known about the business background of the employer and that the employer has a satisfactory record of compliance with immigration and workplace relations laws.

3. Visa Nominee Requirements

The visa application must be lodged at the same departmental Business Centre in Australia as the employer lodged the corresponding nomination (again we assist you with this).

The nomination must be approved by DIAC before the visa can be granted. In addition, the visa application will be assessed against the following:

unless exceptional circumstances apply, the applicant has the relevant qualifications equivalent to at least an Australian diploma;
the applicant is able to satisfy any mandatory licensing, registration or professional membership requirements;
the position is for a fixed term of at least two years (supported by evidence of a contract or letter of appointment);
unless exceptional circumstances apply, the applicant is less than 45 years of age;
unless exceptional circumstances apply, the applicant has functional English language ability;
the applicant and all family unit members meet mandatory health and character requirements.

Exceptional circumstances

Exceptional circumstances on the basis of qualifications might be considered where the applicant has at least a Diploma Level Qualification; a Certificate Level qualification or if the applicant has been working in that occupation in Australia on the appropriate temporary visa before being nominated. This will all depend on the nominated occupation.

Other considerations are whether the position is critical to the operation of the employer's business and whether the occupation is on the Migration Occupations in Demand List (MODL).

Exceptional circumstances on the basis of age might be considered where:

it is not possible to find a suitably qualified person younger than the applicant, and
the position is so specialised or unique that few, if any, persons under 45 would have sufficient expertise to fill it, or
the position would normally require a person with skills and experience acquired over many years (eg senior academics or scientists), and
for applicants 50 or over, whether the occupation is on MODL.

Under policy the greater the age difference from 45 years, the more exceptional the circumstances need to be.

If the applicant is over 60 years of age, “exceptional” circumstances are generally not considered.

Exceptional circumstances on the basis of English language ability might be considered where:

a suitably qualified person who does have functional English is not available; high level skills will be transferred to Australian employees;
the person has near functional English.

In general, to be approved as ‘exceptional’ for skills, age or English the visa applicant must include a submission with their visa application which demonstrates the special skills required and/or the difficulties their employer experienced finding a nominee who does meet the standard requirements.

Visa cancellation provisions

Since 1 July 2001, visa cancellation provisions can apply where:

the nominee has not commenced employment with the nominating employer within six months of arriving in Australia (or after visa grant if already in Australia); or
where a nominee has left the nominating employer before completing their two year period of employment.

Cancellation of a visa will not occur where a nominating employer terminates a nominee's contract within the two year period, provided the nominee has made a genuine effort to complete the two years with the approved employer.

If the nominee's visa is cancelled, the visas for people who accompanied the nominee to Australia such as family members will also be cancelled.

DIAC Terminology Explained
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