457 Visa: Accredited Sponsorship – A fairer approach for business

Perhaps the most pleasing amendment made to the 457 visa program on 1 July 2017 was the broadening of categories of business which may be eligible for Accredited Sponsorship under the 457 visa program.
Accredited Sponsorship:  What are the benefits?

Prior to employing an overseas national on a 457 visa, the business must first apply to the Department of Immigration & Boarder Protection (“DIBP”) to become an approved sponsor.  Established businesses will either be approved as a standard sponsor or if they meet certain, additional requirements, will be approved as an accredited sponsor. 

The benefits for a business approved as an accredited sponsor include:

• sponsorship approval for a longer period (typically six years instead of five);
• streamlined nomination process in certain circumstances; and
• priority processing for all nomination and visa applications.

In short, accredited sponsors wait less time for their employee’s visa to be approved.  Current processing times for 457 visas have blown out to up to five months most applications so taking steps to determine if your business is eligible for accreditation is a very simple way of being able to get your overseas national staff member working for your business, sooner. 

Accredited Sponsorship:  What are the categories?

There are four categories of business who are eligible to become an accredited sponsor:Category 1:         Commonwealth, state and territory government agencies

• Category 2:         Australian Trusted Traders
• Category 3:         Low Volume Users with High Proportion of Australian employees; &
• Category 4:         High Volume Users with Medium Proportion of Australian employees
  

The required characteristics for each category are further defined and the below is a summary of the requirements. 

 Table One:  Summary of Characteristics for Accredited Sponsor Categories

	Required Characteristics
Category 1: Commonwealth, state and territory Government Agencies	·         Australian workforce is at least 75%
Category 2: Australian Trusted Traders	·         Australian workforce is at least 75% ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business
Category 3: Low Volume User	·         Australian workforce is at least 90% ·         Have had at least one primary 457 visa holder in the two years prior to the application for accreditation ·         Publicly Listed company or private company with at least AUD$4Millon turnover in the last 2 years ·         Have been an active 457 sponsor for at least 2 years ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business ·         Provide details of all business activities to the DIBP ·         Provide details of all Principals/Directors of the business to the DIBP
Category 4 High Volume Users	·         Australian Workforce is at least 75% of the workforce ·         Have had at least ten primary 457 visa holders in the two years prior to the application for accreditation ·         Publicly Listed company or private company with at least AUD$4Millon turnover in the last 2 years ·         Have been an active 457 sponsor for at least 2 years ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business ·         Provide details of all business activities to the DIBP ·         Provide details of all Principals/Directors of the business to the DIBP
NOTE:	The above table is a summary of the characteristics only.  Use this as a guide only.  Make your own enquiries and seek advice from Nevett Ford Lawyers as to the full requirements a business is required to meet

 The period between nomination/visa lodgement and approval is often characterised by a frustrating waiting game for employee and business where your employee is unable to commence working for the business.  The changes made to the accredited sponsorship criteria offer a genuine opportunity for all businesses accessing the 457 visa program to reduce the timeframes associated with this “lost time” and get your employee to start work sooner.  We would suggest that business with robust HR practices that are responsive and up-to-date with legislative changes to workplace laws are appropriately placed to take advantage of these changes.  

Should you have any questions about the above information or if you want to discuss how your business can access these arrangements in more detail please do not hesitate to contact us for a confidential discussion on (03) 9614 7111 on send us an on-line enquiry.

 

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Frustrated with processing times of 457 visa?

On a daily basis we assist many businesses whom have gone through substantial efforts to recruit the right person to fill in a time critical position in their business. They often look at the pool of available talent overseas only to get hit by the immigration formalities of relocating that talent.
The time it takes to put documents together and the time it takes by the Immigration Department to process a visa application often causes those businesses to lose contracts. Lost revenue is often as high as thousands of dollars per day.

The type of talent that is usually sponsored on a 457 visa are highly specialised professionals who cannot afford delayed relocation and are often required to commence work immediately.

It is now possible to allow those businesses to bring in their required task force on a short-term work visa which is known as the Temporary Work (Short Stay Activity) visa (subclass 400) and sometimes this can be converted to a Temporary Work (Long Stay Activity) visa (subclass 457) once the candidate is in Australia.

The Subclass 400 is a short-term work visa designed for professionals living overseas to arrive in Australia to perform temporary, highly specialised non-ongoing work. This visa, when presented professionally, can be decided within as little as 1-2 days by the immigration department and allows professionals to travel to Australia and work for up to 3 months (under limited circumstances up to 6 months).

This short term work visa is also a good tool for businesses that are uncertain about appointing a new staff member who is from overseas.

Call us today if you are an Australian business who wishes to hire from the overseas talent pool and wish to have a clear idea on how to proceed with this work. Our friendly and highly specialised team of migration practitioners can walk you through every stage while you remain focused on your business.

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What are the obligations of the 457 business sponsor and visa applicant after the visa is granted?

It is critical that the 457 visa holder and business sponsor adhere to the obligations and conditions of the 457 visa when it is approved. Failure to meet the conditions will result in visa cancellations and/or removal of sponsorship status for the business.

457 visa holder obligations:

• You are only allowed to work for the business that sponsored you
• Must start work within 90 days or arrival to Australia
• Must not stop working for the employer for more than 90 consecutive days
• Obtain registration or licences if necessary
• Maintain adequate health insurance for you and your family in Australia.

457 business sponsor obligations:

To prevent exploitation of overseas workers and to ensure skill shortages are genuinely met the sponsor will need to do the following:

• Cooperate with the Department for checks on compliance
• Ensure employment conditions are fair
• Keep and maintain records of employment for the 457 visa holder
• Ensure that the sponsored 457 visa worker does not perform duties other than what is required for the nominated occupation
• Do not obtain payment from the sponsored worker for the costs of the 457 visa application
• Continue to meet the 'Training Benchmark' requirements
• Pay the travel costs for the sponsored worker to leave Australia when the visa validity expires.

Please contact Nevett Ford Lawyers Melbourne if you need more information about your obligations or situations such as when employment ceases, or if the business is being monitored by the Department.

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Expert review of the 457 temporary skilled migration income threshold

Mr John Azarias has been appointed to undertake an evidence-based review of the Temporary Skilled Migration Incomes Threshold (TSMIT).

The review was recommended by the Independent Review into Integrity in the Subclass 457 Programme.

The review will consider a range of issues including the factors that should determine the settings, the appropriate base level, and the roles of indexation and regional concessions for the TSMIT.

The TSMIT defines the salary threshold for jobs that can be filled by a 457 visa holder and is designed to protect Australian workers and ensure that visa holders are undertaking skilled employment.

The Government has brought forward the review as part of an agreement with the Opposition to ensure the passage through Parliament of legislation to implement the landmark China-Australia Free Trade Agreement.

Mr Azarias will provide a report to Government at the end of April 2016. As recommended by the 457 Integrity Review, the TSMIT will be retained at $53,900.00 until the findings of the review are considered by Government.

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457 visa - changes to English language requirements

As of 17 April 2015 the following language tests are acceptable evidence for 457 visa applications:

(a)                International English Language Testing System (IELTS test);

(b)                Occupational English Test (OET);

(c)                Test of English as a Foreign Language internet-based test (TOEFL iBT);

(d)               Pearson Test of English Academic (PTE);

(e)                Cambridge English: Advanced test (CAE), where the test was completed on, or after 1 January 2015.

The minimum score for each IELTS component is now 4.5 but the overall band score needs to be at least 5.

The following scores apply to the remainder of the tests:

English test	Minimum band score	Minimum scores for English test components
		Listening	Reading	Speaking	Writing
IELTS test	Overall band score 5.0	4.5	4.5	4.5	4.5
OET	-	B	B	B	B
TOEFL iBT	Total band score 36	3	3	12	12
PTE	Overall band score 36	30	30	30	30
CAE	Overall band score 154	147	147	147	147

 

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457 visa - basics

The 457 visa is the most commonly used work visa program by employers to sponsor and recruit overseas skilled workers on a temporary basis for a period between 3 months to 4 years.

The 457 visa is primarily intended to provide streamlined temporary entry arrangements for Australian and Overseas businesses to fill skill shortages that cannot be met from the local labour market.

The 457 visa is valid for up to 4 years and work experience gained in Australia on this visa may lead to permanent residency, usually after 2 years if the visa holder continues to be sponsored by the same employer.

Basic Requirements

To qualify for a 457 visa, the applicant must have an employer who is willing to sponsor them. There are three steps involved in the application process:

Step 1: Business sponsorship

An employer must lodge an application to become a business sponsor. Once approved , the sponsorship is usually valid for 3 years. Among other things, an employer must:

• Demonstrate that It is a lawfully operating business
• Agree to the number of 457 overseas workers to be nominated within 3 years
• Satisfy the training benchmark by demonstrating recent expenditure (equivalent to 1% of the annual payroll) allocated to training Australian employees
• Overseas businesses are not required to meet training benchmark but must seek to employ overseas worker to establish a business operation in Australia and/or will fulfill obligations for a contract in Australia.

Step 2: Nomination 

The employer must then:

• Nominate an eligible skilled occupation on the 457 occupation list
• Provide evidence that  labour market testing has been undertaken  (if applicable)
• Demonstrate that the nominated employee will be paid a minimum salary (currently) of $53,900 per annum, and at a level consistent with the market rate salary applicable to an Australian employee within the Australian labour market

Step 3: Visa application

The individual must then apply for a visa application inside or outside Australia, and demonstrate that they have:

• The requisite skills, qualifications, experience and employment background to match the nominated position
• (Certain trade occupations may require a formal skills assessment) 
• Vocational English language ability (exemption available for certain passport holders)
• Any relevant licenses or registration required for the nominated position (if applicable)
• An adequate level of health insurance in Australia
• Satisfied certain health and character requirements

 

 

 

 

 

 

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457 visa changes about flexibility - Prime Minister Tony Abbott

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Prime Minister Tony Abbott says he will overhaul the 457 visa scheme as part of his innovation and competitiveness agenda.

Mr Abbott says he wants to make changes to the scheme to make the 457 visa process more flexible for business.

The Federal Government says the current 457 visa scheme is too rigid and any changes are not a way of substituting overseas labour for domestic labour.

Those planned changes include streamlining the processing of sponsorship, nomination and visa for low-risk applicants.

And they include increasing the sponsorship-approval period from 12 to 18 months for start-up businesses.

The Government says that would give start-ups more time to make their businesses sustainable.

There would also be more flexible English-language testing and skill requirements for 457 applicants. Mr Abbott says safeguards would be kept in place to prevent exploitation and protect local workers.And he says the Government would continue to require foreign workers be paid the same as Australians.

"We want these to be more flexible, and we want these to be a way of helping business to grow. 457s are not a way of substituting overseas labour for domestic labour. They are a way of helping Australian businesses to grow so that Australian workers have more opportunities and higher wages. So, where there is the chance of more investment and substantially more employment for Australians if we are more flexible, that's what we want to look at. "

While business has complained the 457 visa scheme is too rigid, unions fear businesses seeking cheap overseas labour could rort the system. The main union representing construction workers has criticised the Government's planned changes, saying workers' rights would be undermined. The secretary of the Construction, Forestry, Mining and Energy Union, Michael O'Connor, says they would be bad news for overseas workers and unemployed Australians. "The changes will basically impact badly on 457 visa workers, and it will impact badly on those people in Australia looking for work. It will increase the chances of 457 visa workers being seriously injured or even killed on the job, because it's going to water down English requirements and that's going to compromise health and safety on especially the areas that we cover. And by allowing employers easy access to 457 visa workers, it's going to make sure that young people and people who are looking for work, long-term unemployed, aren't going to get a chance for a job when they should do."

But the national president of the Migration Institute of Australia does not share CFMEU concerns about the effects of poor English-language skills. Angela Chan says current English-language requirements are too strict and she also agrees with the Government that more flexibility is needed in other areas of the scheme.

"What's happened is that the program had bogged down in red tape and requirements that made it very difficult for employers to sponsor skilled workers from overseas. People often don't need to have a high level of English to perform their trades. For example, a cook ... I would rather have a cook that could cook a beautiful and safe and hygienic and first-class sushi, or any other type of food that requires a high level of skill, then (for that cook) to be able to read the sports pages of the local newspaper."

The Opposition says Mr Abbott's announcement on the visas is unclear and it is concerned the changes could have occupational health-and-safety implications.

The Government says it will soon make further announcements on the recommendations of reviews into both the 457 and the Significant Investor Visa programs.

SOURCE: SBS

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Subclass 457 business sponsors - penalties, sanctions & enforcement

On 14 September 2009, the Migration Amendment (Worker Protection) Act 2008 (“the Worker Protection act”) gave effect to reforms to the temporary sponsored worker program (subclass 457). 

The laws introduced a new enforcement regime, including the introduction of civil penalty provisions.  The laws enabled the department of immigration to apply to a court (that is, an eligible court as defined in section 5(1) of the Act) for a civil penalty order or, alternatively, serve an infringement notice on a 457 business sponsor that is believed to have contravened a civil penalty provision. 

In addition to the civil penalty provisions, the administrative sanctions to bar a sponsor or cancel the approval of a 457 business sponsor were expanded to provide that action could be taken against all classes of approved sponsor in certain circumstances. 

On 1 July 2013, the Migration Act 1958 was amended to introduce enforceable undertakings as an alternative sanction option that may be applied if an approved 457 business sponsor is found not to have mat the applicable sponsorship obligations.  Enforceable undertaking may be used in addition to, or instead of, other administrative penalties available to the department of immigration.   

The various actions that may be taken in relation to approved 457 business sponsors or former approved sponsors are as follows: 

·         Bar or cancel the sponsor (under section 140M);

·         Serve an infringement notice

·         Obtain an enforceable undertaking

·         Pursue a civil penalty 

Business Monitoring

The department of immigration routinely monitors approved and former approved 457 business sponsors to determine their compliance with the sponsorship obligations.  Monitoring of sponsors typically requires the provision of records and documents, and may involve a site visit to the sponsor’s premises to interview visa holders, other employees and the sponsor. 

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