VISA UPDATE: Entrepreneur Visa Australia

Entrepreneur Visa

The Government of Australia introduced the National Innovation & Science Agenda with the objective of taking Australia through extraordinary technological change that is intended to transform the way we live, work, communicate and pursue good ideas.

In order to advance the Agenda, the Government introduced the New Entrepreneur visa to attract the best overseas start-up talent into the country.

 

The new Australian Entrepreneur visa has been established for entrepreneur with innovative ideas and financial backing from third parties.  The new visa allows entrepreneurs with AUD200,000 in funding from specified third parties to develop and commercialise their innovative ideas into Australia.  The most important part of this visa is the provision of a pathway to Australian permanent residency.

 

Eligibility (summary)

• Business Innovation and Investment (Provisional) visa (subclass 188), Entrepreneur Stream
• Applicant must be under 55 years of age, unless a waiver is provided by a state or territory government.  A state or territory can waive the age requirement if the proposed complying entrepreneur activity will be of ‘exceptional’ economic benefit to the nominating state or territory
• Applicant to provide evidence of ‘competent’ English at the time the applicant is invited to apply for the visa
• Applicant to undertake or propose to undertake a complying entrepreneur activity in Australia
• Applicant has a genuine intention to continue this activity
• Applicant must be nominated by a state or territory government.

 

Migration Regulation 5.19E sets out the criteria to be met for an activity to be a complying entrepreneur activity.  This regulation requires that the activity must relate to an innovative idea that is proposed to lead to the commercialisation of a product or service in Australia or the development of a business or enterprise in Australia. 

The following requirements must be met:

• There must be one or more legally enforceable agreements under which funding is to be provided to the entrepreneurial entity (which may be the applicant, a body corporate, or a partnership) by one or more entities
• The total amount of funding provided or to be provided under the agreement or agreements must be at least AUD200,000
• If the applicant is not the entrepreneurial entity, the applicant must personally hold at least a 30% ownership share in the entrepreneurial entity at the time the agreement or agreements are entered into, which prevents more than three applicants being eligible in relation to any one entrepreneurial entity
• Under the agreement or agreements, at least 10% of the funding must be payable to the entrepreneurial entity within 12 months of the day the activity starts to be undertaken in Australia (i.e. $200,000)
• There must be a business plan that is appropriately formulated to lead to an outcome.

Source of funds

Sources of funding are limited to:

• Commonwealth agencies
• State and territory governments
• Publicly funded research organisations
• Investors registered as a Venture Capital Limited Partnership/s (VCLP) or an Early Stage Venture Capital Limited Partnership/s (ESVCLP).

There are a number of state government funded grants for start-ups:

• Victoria: Launch Vic have $60 million fund
• New South Wales: Jobs for NSW – Minimum Viable Product Grants and Building Partnership Grants have $190 million over four years
• Queensland: iLab incubator and Accelerator provided $80 million to date
• Western Australia: Innovation voucher program
• South Australia: Innovative voucher Program
• Commonwealth Government: Innovation Program.

The main funding will come from Venture Capital Limited Partnership/s (VCLP) and Early State Venture Capital Limited Partnership/s (ESVCLP) which have overseas and local investors who register under the Venture Capital Partnership/s Act 2002.

• VCLP must have capital in excess of $10 million
• ESVCLP must have capital between $10 million and $200 million.

Exclusions

The following activities are excluded:

• Establishing, purchasing, investing or acquiring an interest in residential real estate.  The term ‘Australian residential property’ includes any Australian land zoned for residential use
• Establishing, purchasing, investing or acquiring an interest in labour hire companies; or
• Purchasing, investing or acquiring an interest in an existing entity (including franchise).

Transition to Australian permanent residence

The criteria for transitioning to permanent residence in the entrepreneur stream are that:

• An applicant holds a subclass 188 visa for a continuous period of four years;
• An applicant has resided in Australia for two out of the last four years; and
• An applicant has demonstrated an overall successful record of undertaking, whether alone or by participating in a business, activities of an entrepreneurial nature in Australia while holding a subclass 188 visa.

An applicant’s record of success will be based upon the number of Australian citizens employed, the nature of the funding and the annual turnover in relation to the activities undertaken.

The Government’s policy document for transition from subclass 188 to the subclass 888 (permanent residence) visa has not been finalised.

Nevett Ford Lawyers Melbourne can provide advice and assistance so please contact us if you are interested in this visa or any other visa type.

 

 

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State of Victoria - Temporary closure in skilled applications for ICT occupations

Temporary closure in skilled applications for ICT occupations

Due to a large volume of skilled visa nomination applications received, applications for Information and Communications Technology (ICT) occupations will not be accepted from 11 November 2016 to 6 March 2017.  The closure will be for a period of four months, however further updates will be provided should this be extended. The occupations affected by the temporary closure are: 135112   ICT Project Manager 261111   ICT Business Analyst 261112   Systems Analyst 261311   Analyst Programmer 261312   Developer Programmer 261313   Software Engineer 261314   Software Tester 261399   Software and Applications Programmers nec 262111   Database Administrator 262112   ICT Security Specialist 263111   Computer Network and Systems Engineer This temporary closure will allow processing of all outstanding applications and reduce the risk of delay for future applicants.    All applications currently in process, and received prior to this date, will be assessed against current guidelines and an outcome will be provided in due course.  Applications for all other occupations eligible for Victorian Government visa nomination remain open. Note: Applicants applying under the streamlined PhD and 457 pathways are not affected by this closure and may apply with these ICT occupations during this time.

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457 Visa - Who can Sponsor?

Who can become a sponsor?

To become a sponsor, you must be able to show that your business:

• is a lawfully operating business
• has no relevant adverse information against your business.

Australian businesses must also demonstrate their commitment to employing local labour as well as non-discriminatory recruitment practices.
There are two ways you can become an approved sponsor:

• Option 1: Apply to be a standard business sponsor
• Option 2: Negotiate a labour agreement.

Option 1: Apply to be a standard business sponsor

The standard business sponsorship arrangement is the most common way to sponsor a skilled worker using the subclass 457 visa program. You must lodge an application to become a standard business sponsor.


You can have only one standard business sponsorship approved at any given time (that is, one sponsorship approval per legal entity) which is usually valid for five years. You can apply to extend your sponsorship at any time during this five-year period by lodging a variation application.




The requirements for approval as a standard business sponsor differ for businesses that are outside and in Australia.




Business in Australia
You must attest, in writing, that you have a strong record of, or a demonstrated commitment to employing local labour. You must also declare that you will not engage in discriminatory recruitment practices.




Make the attestation and the declaration about your workplace record in your sponsorship application form.


You must also meet training requirements. This means you must either:

• meet the training benchmarks if you have traded in Australia for 12 months or more
• have an auditable plan to meet the training benchmarks if you have been trading in Australia for less than 12 months.

Business outside Australia
You must be seeking to employ a skilled worker to either:

• establish, or help establish, a business operation in Australia
• fulfil obligations for a contract in Australia.

If your business does not yet have an operating base in Australia, you are not required to satisfy the training requirement.

Option 2: Negotiate a labour agreement

A labour agreement is a formal arrangement negotiated between an Australian employer and the Australian Government. You might be able to enter into a labour agreement if you are in one of the following situations:

• the occupation of the workers you want to employ is not listed on the Skilled Occupation Lists (Formerly Known as Form 1121i) or theAustralian and New Zealand Standard Classification of Occupations (ANZSCO)
• you are a recruitment company seeking to sponsor skilled workers to be on-hired to another businesses, and the occupations requested are on the Consolidated Sponsored Occupations List (CSOL)
• standard immigration options are not suitable.

You must be able to provide evidence that:

• there is a genuine and systemic shortage of skilled workers
• there are no suitably qualified Australian workers available
• you have a commitment to training Australians.

A labour agreement comes into effect when it has been signed by all parties involved in the negotiations. A labour agreement is typically valid for three years.


How to propose a labour agreement


You need, among other things, to:

• identify the relevant skills shortage in the business and why these vacancies cannot be filled by Australian workers (you need to show you have tried to recruit in Australia)
• specify the number of skilled workers needed from outside Australia
• specify the skill and English language requirements that relate to the nominated occupations. Semi-skilled occupations can be considered provided they are specialised and in demand
• include copies of correspondence showing that relevant stakeholders have been consulted.

You might be able to use a template labour agreement if there is one for your industry or your worker’s occupation. A template labour agreement is a set of standard parameters for similar employers: it does not guarantee an agreement will be approved.


If the template does not suit your needs, you might be able to negotiate an individual agreement.




Labour agreements include a requirement to provide training to Australian employees.
When you have a labour agreement in place, you are an approved sponsor for the term of operation of the agreement. You can then nominate skilled workers from outside Australia under the terms of the labour agreement.




You will also need to meet your sponsorship obligations and any other terms and conditions specified in the agreement.  If you breach the terms and conditions of your agreement, we could suspend or terminate it.




Standard business sponsors

To sponsor a worker as a standard business sponsor, you must:

• be a lawfully operating business
• have no relevant adverse information against your business.

If your business is in Australia, you must also:

• meet training requirements
• demonstrate your commitment to employing local labour
• not engage in discriminatory recruitment practices.

You can use Visa Entitlement Verification Online (VEVO for Organisations) to check the work entitlements of your prospective employees.

A lawfully operating business

You must be a lawfully operating business to apply to be a standard business sponsor. This applies to businesses both in and outside Australia.
To demonstrate this you must show both of the following:

• your business is legally established
• your business is actually operating.

A business that exists only on paper cannot satisfy this sponsorship requirement.
If you do not operate in Australia, you must be able to show that you need a skilled worker to:

• come to Australia to establish, or help establish, a business operation with connections with a business located outside Australia
• fulfil, or help in fulfil, a contractual obligation.

If your business is new, you can still satisfy this requirement if you can provide evidence that your business is in fact operating, even if this has been for only a short period of time.
Examples of the documents you can use to show that your business is legally established and operating are in the Document checklist.




If you operate a business under a trust arrangement you must provide details of the Trust Name and the Trust ABN when you complete the application form.  The application should be made using the name of the Trustee as it appears in the Trust Deed.




Details of the principals of your business such as Owners, Partners, Directors and major Shareholders should be provided when you complete the application form.




Contact us today for more information and assistance.

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Entertainment Visa (Temporary Work) - Subclass 420 visa

The Temporary Work (Entertainment) Subclass 420 visa is for individuals who wish to work in the entertainment industry in Australia.



It is a temporary visa which is suitable for:


• performers in theatre, film, television or radio production, or a concert or recording

• people providing support to an entertainer or group of entertainers in relation to a


performing contract

• production roles


• people making a documentary or a commercial ( there is different criteria depending on


whether the product is for an Australian audience or for an overseas audience).
 

This visa requires sponsorship by an approved entertainment sponsor. Eligible sponsors include organisations, government agencies, foreign government agencies, or other specified eligible individuals.



This visa can be valid for up to 2 years and can be applied for either in or outside Australia.


Contact Ryan Curtis-Griffiths today (+61 3 9614 7111) for more information and assistance.

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457 VISA - Sponsorship 'Training' requirements

Training requirements

You must show that you have contributed to the training of Australian workers by providing evidence of meeting the training benchmarks. These benchmarks were introduced to ensure that the employment of workers from outside Australia is not seen as an alternative to training Australian workers.
To be approved as a standard business sponsor, you must either:

• meet the training benchmarks if you have traded in Australia for 12 months or more
• have an auditable plan to meet the training benchmarks if you have been trading in Australia for less than 12 months.

If you negotiate a labour agreement, your business will have to meet a similar training requirement as part of the agreement.

Training benchmarks

If your business has been trading in Australia for more than 12 months, you must show you have contributed to the training of Australians.
You show this by meeting one of two benchmarks. This can be either:

• Training benchmark A: recent expenditure to the equivalent of at least two per cent of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business
• Training benchmark B: recent expenditure to the equivalent of at least one per cent of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

You must provide evidence of expenditure relating to the training benchmarks when you submit your sponsorship application. Not providing evidence can cause a significant delay in processing your application.
Businesses that do not yet have an operating base in Australia do not need to meet the training benchmarks.

Payroll

Payroll is the amount of money an employer pays in wages to their employees in the 12 months immediately before you lodge your application for sponsorship.
Payroll expenditure includes any:

• wages
• remuneration
• salary
• commission
• bonuses
• allowances
•  superannuation contributions (mandatory or otherwise)
• eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant state or territory.

Payments to contractors or sub-contractors count as payroll if the contractor provides some labour services in fulfilling the requirements of the contract. For example, if your contractor is a bricklayer or a carpenter, any payments you make to them should be included as payroll expenditure.

Recent expenditure

For expenditure to qualify as recent, it must have occurred in the 12 months immediately before you lodge your application. This applies to both benchmarks.
If you include payments to contractors in your payroll expenditure, you can also count any eligible training expenditure on them towards the benchmarks.

Industry training funds

Industry training funds are statutory authorities responsible for providing funding for training of eligible workers in certain industries, such as construction and mining.
You should contribute to a fund that operates in the same industry as your business. If your industry does not have an eligible training fund, you can contribute to:

• a recognised industry body that provides training opportunities for its members, provided they reserve the funds contributed for training
• a recognised scholarship fund at a university or TAFE college that supports education or training for Australians in the same or a similar industry as your business.

Examples of ways to meet the training benchmarks

You can show you meet the training benchmarks in relation to your Australian employees by:

• paying for a formal course of study for your Australian employees
• funding a scholarship in a formal course of study approved under the Australian Qualifications Framework for your Australian employees
• employing apprentices, trainees or recent graduates on an ongoing basis in numbers proportionate to the size of the business
• employing a person who trains your Australian employees
• paying external providers to deliver training for Australian employees
• providing on-the-job training that is structured with a timeframe and clearly identified increase in the skills at each stage, and demonstrating all of the following:
• the learning outcomes of the employee at each stage
• how the progress of the Australian employee will be monitored and assessed
• how the program will provide additional and enhanced skills
• the use of qualified trainers to develop the program and set assessments
• the number of people participating and their skill and occupation.

Expenditure that cannot count towards this benchmark includes expenditure for training that is:

• delivered on the job, other than on-the-job training that meets the requirements outlined above
• confined to only one or a few aspects of the businesses broader operations, unless the training is in the primary business activity
• only done by people who are not Australian citizens or permanent residents
• only done by people who are principals in the business or their family members
• only relating to a very low skill level having regard to the characteristic and size of the business
• wages paid to staff for the time they spend at training.

Expenditure on apprentices and trainees

Apprenticeships and traineeships are training positions. You can count 100 per cent of the salary provided to an apprentice or trainee towards training benchmark B if:

• they are employed under a formal agreement (known as a training contract)
• the training contract has been lodged with the relevant state or territory government authority.
• If you employ an apprentice through a Group Training Organisation you cannot include any commission paid to third parties but you can still include 100 per cent of their salary.

Expenditure on graduates who are part of a formal training program

One hundred per cent of a graduate’s salary can be counted towards training benchmark B if the graduate’s position is part of a formal, structured graduate program of up to two years, or if it is part of a professional year following their graduation. The occupation in which the graduate is working must be relevant or related to the subject of their recently completed qualification.

Expenditure on graduates who are not part of a formal training program

Graduate positions that are not part of a formal, structured graduate program are considered differently because they are already fully qualified for their positions and they can already perform all their duties:

• you can count only the expenditure that is for the formal training aspects of the graduate position towards training benchmark B
• you cannot count the total salary of these graduates because graduate positions are not, in themselves, considered to be wholly training positions.

A recent graduate is someone who has completed their higher education studies within the 24 months before you lodge your application to become a standard business sponsor.

Training provided by a franchise head office for franchisees

Training provided to employees of franchisees can be counted towards training benchmark B if you:

• submit quantifiable evidence of structured training provided to your employees (for example, session plans, learning objectives)
• make a commitment to continue to provide training to your employees
• quantify the actual expenditure on training.

If the franchise head office provides the training, you must provide documents that show exactly what percentage of the franchise fee is attributed to training. An estimate of the training component will not be accepted; neither will the entire franchise fee.

Auditable plans

An auditable plan must clearly identify how the applicant intends to meet one of the training benchmarks. An auditable plan must:

• relate to the immediate future (within the next 12 months)
• clearly articulate the forecast payroll for the next 12 months
• show the intended expenditure towards training benchmark A or training benchmark B
• show a clear intent to implement the plan.

An auditable plan to meet training benchmark B must clearly articulate the type and duration of training, and the estimated cost of delivering the training.

Agree to the number of subclass 457 workers to be nominated

In your sponsorship application, you must tell us the number of people that the business proposes to nominate during the period of approval as a sponsor. You will need to justify why you are proposing that number. The visa processing officer could use the information in your application to propose an alternative number of people to you. You must agree in writing to a number for the sponsorship agreement to be approved.


Conact us today if you need further information or assistance.

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Subclass 400 Visa - Short-term work

You can apply for this visa if you need to enter Australia to undertake one of the following activities:


Highly specialised work

You can apply for this visa to do short-term, highly specialised, non-ongoing work in Australia if you have specialised skills, knowledge or experience that both:

• can assist an Australian business
• cannot reasonably be found in the Australian labour market.
  Highly specialised work is usually work that either:
• is done by people with an occupation listed in Major Groups 1, 2 or 3 of the Australian and New Zealand Standard Classification of Occupations (ANZSCO),
  or
• requires skills and knowledge that are specific to an international company, such as installing imported equipment, after-sales service or emergency repairs

Invited participants

You can apply for this visa if you have been invited by an organisation to participate in a cultural or social event or events on a non-ongoing basis.

The inviting organisation must be both:

• operating lawfully in Australia
• directly responsible for the event or have a formal role in preparing for or conducting it.
• You cannot accept any salary, wages or other remuneration for participating in the event, other than:
• prize money
• appearance fees
• reimbursement for your reasonable expenses of doing the activity
• payments from your non-Australian employer.

You can apply for this visa if you are, for example, a sportsperson participating in specific events or touring as part of a sports team, a public lecturer, an artist, an author or a photographer.

This visa is not intended for business people attending a conference or taking part in meetings or business negotiations. You can apply for a Visitor visa (subclass 600)-Business Visitor stream instead (such as Visitor visa (subclass 600). 

Emergency Workers and Other Exceptional Circumstances

In very limited circumstances, this visa may be granted in Australia’s interest. In these cases, the department needs to be satisfied that the activity identified in the visa application is of national significance.

For example, this visa could be granted to emergency workers to come to Australia after a natural disaster.

NOTE: Your work or activity must be non-ongoing. This means that you can finish the work and activity in three months or less. Do not make arrangements to stay in Australia any longer than that. You also should not agree to being rotated through a position on a short-term basis as one of a number of overseas workers. If the work is ongoing, and even if your contract is less than three months, apply for a Temporary Work (Skilled) visa (subclass 457).

Generally you can stay in Australia for up to three months where required, but depending on your work or activity a longer period of up to six months may be allowed in limited circumstances.

 

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Beware of scammers – always seek legal advice

Vulnerable migrants and temporary visa holders are being targeted by scammers pretending to be from the Department of Immigration.

 

The scammers usually claim that there are problems with the people’s paperwork or visa status and demand money to fix it or otherwise face the consequences, including the risk of deportation and possible arrest of family members.

 

The Australian Competition and Consumer Commission (ACCC) recently announced that more than 300 reports of this type of activity were referred to it since March this year. The deputy chairwoman, Delia Rickard suggested that the scammers might be obtaining personal information from social media – a valuable reminder for people to take care when communicating via this medium.

 

One tactic used by the scammers is to claim that they are calling from an overseas High Commission or Embassy, and that upon reviewing the person’s visa application it appears that it had been incorrectly filled out and that unless this error was attended to and further fees paid, the person would face the risk of having to leave the country.

 

Obviously these types of calls can be alarming and are purposely designed to prey on the weaknesses of vulnerable individuals within the community.

 

Rather than immediately agreeing to comply with the requests of the caller, the best thing to do when receiving a communication of this type is to indicate that you are not in a position to resolve this problem immediately then ask for contact details in order that you can revert to the caller at a more convenient time. Because it is a scam, in most cases it will be unlikely to get contact details; it is more likely that another call will be made at some other time.

 

As soon as the initial call is completed it is highly recommended that you seek immediate legal advice. The cost of getting professional help involved to represent your interests at an early stage will end up being far more economic than paying money to a scammer.

 

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