457 visa - sponsorship, nomination & visa (subclass 457)

Key facts

• The subclass 457 programme is uncapped and driven by employer demand. This generally means employers will sponsor overseas workers more in times of high economic growth and low unemployment.
• Businesses can employ overseas workers for up to four years in skilled occupations only.
• Businesses are required to demonstrate that the nominated position is genuine.
• Businesses must meet (or commit to meet) the prescribed training benchmarks for the programme, which requires an ongoing commitment to training activities for Australian citizens and permanent residents, and continue to meet these requirements for the term of the sponsorship. Records of training and related expenditure must be provided as evidence.
• Strong worker protection measures are in place to ensure that overseas skilled workers are provided the same workplace rights as Australian citizens.

How to apply

To sponsor an employee from overseas under the subclass 457 visa programme, the following three stages are required:

• Sponsorship—the employer applies for approval as a standard business sponsor. This is required to nominate an occupation for a subclass 457 visa.
• Nomination—the employer nominates an occupation for a prospective or existing subclass 457 visa holder.
• Visa application—the person nominated to work in the nominated occupation applies for the subclass 457 visa. This is the final step to obtaining a subclass 457 visa.

Employers (sponsorship)

To become a standard business sponsor, a business must apply to the department.

There are several requirements for employers to become an approved standard business sponsor. These include that the business:

• must be lawfully operating in or outside Australia
• must meet (or commit to meet) the training benchmarks for the programme and continue to meet these requirements for the term of the sponsorship
• must have a direct employer-employee relationship (if the business is outside Australia)
• must not on-hire skilled workers (unless the occupation is exempt)
• or persons associated with the business, do not have adverse information known to the department
• once approved, must comply with all sponsor obligations
• must attest to a strong record of, or a demonstrated commitment to:
  
  • employing local labour
  • non-discriminatory employment practices.

Employers (nomination)

Nomination is when an approved sponsor identifies a position to be filled by an overseas skilled worker.

There are several requirements to nominate a position to be filled by an overseas skilled worker. These include:

• the business must be an approved sponsor, have lodged a sponsorship application or applied for sponsorship at the same time as the nomination application
• the business must demonstrate a genuine need for the nominated position in their business
• the nominee must be an existing subclass 457 visa holder, an applicant for a subclass 457 visa holder or a proposed applicant for a subclass 457 visa
• the position must relate to an eligible occupation on the Consolidated Skilled Occupations List
• labour market testing must have been undertaken unless the occupation is exempt
• the position must have equivalent terms and conditions of employment that would be provided to an Australian who performs the same duties in the same location—this is known as the market salary rate.

Employees (visa applicants)

Overseas skilled workers and any dependants must apply for and be granted a visa to travel to, or remain in Australia. It’s important to note that a subclass 457 visa application cannot be processed if your application is not supported by an approved sponsor and an approved nomination.

Subclass 457 visa holders can:

• work in Australia for a period of between one day and four years
• bring any eligible dependants with them to Australia—dependants can work and study
• after entering Australia, have no limit on the number of times they can travel in and out of Australia, while their visa remains valid.

There are several requirements that prospective visa applicants must meet to be granted a visa. These include:

• a demonstrated minimum English language ability (some exemptions apply)
• skills and experience necessary to perform the nominated occupation (a skills assessment may be required)
• adequate health insurance must be arranged for the period of stay in Australia
• genuine intention must be shown to perform the nominated occupation
• standard visa requirements such as character and health checks together with a declaration concerning Australian values and laws must be met.

Please contact Nevett Ford Lawyers (Melbourne) to speak to one of our 5 dedicated and experienced immigration lawyers if you require advice and assistance with your subclass 457 visa requirements - telephone: 03 9614 7111 or by email at: rcurtisgriffiths@nevettford.com.au. 

Legal advice and assistance is highly recommended.