How does the 457 visa work?

With a 457 visa you can work in Australia for up to four years. You can bring your family with you (they can work and study) and you can travel in and out of Australia as often as you like.

The employer/sponsor must: 

Apply to be a sponsor to recruit overseas workers; nominate the positions they want to fill; recruit the overseas workers to fill the nominated positions; and act as a sponsor for employees applying for a visa.

 

You as the employee accept the offer of employment from the employer; apply for the visa; and meet all the conditions of your visa.

Am I eligible for the 457 visa?

To apply for a 457 visa as an employee, your application must follow that of your sponsoring employer. To be considered for a 457 visa, you must meet the following criteria:

• You must be sponsored by an employer to fill a nominated position.
• You must work in a skilled occupation that's been approved by the Australian Government on the Consolidated Sponsored Occupations List (CSOL).
• You must have skills, qualifications, experience and an employment background which match those required for the position.
• You must have English language skills (if you do not hold a passport from UK, USA, Ireland, New Zealand or Canada) (some other exemptions apply).
• You must be eligible for any relevant licences or registration required for the nominated position.
• You must demonstrate that you are to be paid at least the minimum salary level that applies at the time a decision is made on your visa.
• You must meet health requirements.
• You must meet character requirements.
• If you are in Australia at the time of application, you must not have prohibitive restrictions or limitations placed on your current visa.
• You must, if over the age of 18, be willing to declare your respect of Australian values and adhere to Australian law.
• You must have health insurance (some exemptions apply for certain passport holders).

Call us today if you would like more information.

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Changes introduced to 457 visa

Non–discriminatory recruitment practices


The migration regulations have been amended so that sponsors must declare that they will not engage in discriminatory recruitment practices and also comply with a new obligation not to engage in discriminatory recruitment practices. According to the Department of Immigration “The new obligation seeks to address a community concern that some employers may be relying on the 457 visa programme to employ foreign workers without having regard to the availability of local labour.”


Sponsors should keep a record to demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.


Simplification of English Language Exemptions

Subclass 457 visa applicants will be exempt from the English language testing requirements if they have already met the same (or better) English language requirements to gain an occupational license or registration. Where registration and licencing authorities impose and assess English language requirements there is now no requirement for the Department to require the same or equivalent evidence via specified test results.

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Utilising 457 visas for self sponsorship

The use of the SUBCLASS 457 program to 'self sponsor' has effectively been closed by the addition in the 21 November 2015 update to immigration policy:

"Position created to secure a migration outcome"  

Overview (from Immigration policy)

The intent of the 457 program is to enable Australian businesses to temporarily fill short term skill shortages with overseas workers when they cannot find a suitably qualified or experienced Australian citizen or permanent resident to fill the position. 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.

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What are 457 visa Training Benchmarks? How do you meet the requirements?

Training Benchmarks are requirements that need to be fulfilled by the company who is applying to be a subclass 457 visa 'business sponsor'.


The requirements were introduced to ensure local Australian workers are provided training to perform the work required by the company, thus reducing the dependency of the company on overseas workers.

The Training Benchmarks are as follows:

Training Benchmark A - recent expenditure to the equivalent of at least 2% 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 1% of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.

If the business is new (operating for less than 12 months), an auditable training plan is required instead.

If you are unsure how to demonstrate that you have met the Training Benchmarks, please contact Nevett Ford Lawyers Melbourne for a more information, assistance and advice.

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Obligation to provide training : 457 business sponsors

Migration Regulation 2.87B requires standard business sponsors (under the subclass 457 visa program) (and former standard business sponsors) to contribute to the training of Australian workers in each year that they engage a Subclass 457 visa holder employee.

The training benchmarks for an established business are:

(A) Recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business

or

(B) Recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.

This obligation is assessable on an annual basis, in the twelve month period commencing on the day on which the sponsor is approved, provided the sponsor has engaged a Subclass 457 visa holder at any stage during that twelve month period. 

The obligation ends:

• if the period of approval is less than six years, the obligation ends three years after the person is approved as a standard business sponsor
• if the period of approval is at least six years, the obligation ends six years after the person is approved as a standard business sponsor.

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Government investigating 457 visa fraud

The Coalition government has announced a crackdown on 457 visa fraud, with up to 100 employers to be investigated over allegations they sponsored applications in return for payment, Assistant Immigration Minister Michaelia Cash announced yesterday.

Senator Cash said the compliance campaign involved an "initial assessment" of the 100 sponsors, but also had an educational component — Work visa scams. Don't pay the price — targeting both employers and visa holders.

The Minister said sponsors identified as having failed to meet their obligations could face administrative sanctions, infringement notices, enforceable undertakings or Federal Court civil penalty applications.

"A business that sponsors a visa holder under false pretences may also be committing other offences, such as providing false or misleading information or engaging in misleading or deceptive conduct," she said.

"Visa holders who enter into contrived employment relationships for migration purposes may also be guilty of fraud related offences and/or not meet immigration requirements, including the genuineness criterion."

The Minister said a "small minority" of those involved in migration programs attempted to defraud them or did not abide by their obligations.

The immigration department already has a dob-in service that enables the public to report in person, online, or by phone, fax or mail.

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Subclass 457 visa - Government Review (Minister for Immigration, Scott Morrison)

At a National Press Club lunch on 10 September 2014, the Minister for Immigration and Border Protection, the Hon Scott Morrison, discussed the Government’s response to the just released report by the panel conducting the Independent Review into Integrity in the Subclass 457 programme.

The Minister praised the report for its “balanced and measured” 22 recommendations.

Minister Morrison did not give any details of the implementation date for the recommendations, but said that the Government will give a detailed response “in the weeks and months ahead”.

We will provide further details as soon as they become available.

Report Recommendations

Recommendation 1 – Core solutions

1.1 That, in lieu of the existing Ministerial Advisory Council on Skilled Migration, a new

tripartite ministerial advisory council, which is not necessarily prescribed in legislation, be

established to report to government on skilled migration issues.

1.2 That the new ministerial advisory council be supported by a dedicated labour market

analysis resource.

Recommendation 2 – Core solutions

2. Acknowledging that, as the OECD has pointed out, employer-conducted labour

market testing is not “fully reliable”, and in the Australian context has proven ineffective,

that the current legislative requirement for labour market testing be abolished.

Recommendation 3 - Core solutions

3.1 That the Consolidated Sponsored Occupations List be retained as a list of

occupations which are at Skill Level 3 and above, and that the Consolidated Sponsored

Occupations List should be able to be amended by two means: first, the addition of skilled

occupations which can be shown to exist in the community but which may not be on the

ANZSCO list; and, second, the refinement of the Consolidated Sponsored Occupations List in

cases where there may be integrity or appropriateness concerns. Any occupations not on

the list, which are usually referred to as semi-skilled, may be addressed as part of the

Labour Agreement regime.

3.2 That the new ministerial advisory council provide advice on those occupations where

some concern exists and recommend additional requirements or limitations on occupations

and/or regions.

Recommendation 4 - Market Salary Rate

4. That the market rate framework continue to operate as a core component of the

457 programme, but that the earnings threshold above which there is an exemption from

the need to demonstrate the market rate should be aligned with the income level above

which the top marginal tax rate is paid (currently at $180 000).

Recommendation 5 - Temporary Skilled Migration Income Threshold

5.1 While there is an argument for abolishing the Temporary Skilled Migration Income

Threshold, that it nevertheless be retained to allow for streamlining within the wider

programme, and that concessions to the Temporary Skilled Migration Income Threshold be

afforded under Labour Agreements, Enterprise Migration Agreements and Designated Area

Migration Agreements, as appropriate.

5.2 That the current Temporary Skilled Migration Income Threshold be retained at

$53 900 p.a. but that it not undergo any further increases until it is reviewed within two years.

5.3 That the two roles currently performed by the Temporary Skilled Migration Income

Threshold (that is, acting as a determination of the eligibility of occupations for access to the

scheme and as an income floor) be more clearly articulated in the 457 programme, and that

consideration be given to accepting the eligibility threshold as up to 10 per cent lower than

the Temporary Skilled Migration Income Threshold.

5.4 That the government give further consideration to a regional concession to the

Temporary Skilled Migration Income Threshold, but only in limited circumstances where

evidence clearly supports such concession.

5.5 That in circumstances where the base rate of pay is below the Temporary Skilled

Migration Income Threshold, the current flexible approach adopted by the department,

taking into account guaranteed annual earnings to arrive at a rate that meets the minimum

requirement of Temporary Skilled Migration Income Threshold be continued and made

more visible to users of the programme and their professional advisors.

Recommendation 6 - Training benchmarks

6.1 That the current training benchmarks be replaced by an annual training fund

contribution based on each 457 visa holder sponsored, with the contributions scaled

according to size of business.

6.2 That any funding raised by way of a training contribution from sponsors of 457 visa

holders be invested in:

a) training and support initiatives, including job readiness, life skills, and outreach

programmes for disengaged groups, particularly youth who have fallen out of the

school system;

b) programmes allowing employers to take on apprentices/trainees from target groups,

including Indigenous Australians and those in rural and regional areas;

c) mentoring programmes and training scholarships aimed at providing upskilling

opportunities within the vocational training and higher education sectors that

address critical skills gaps in the current Australian workforce. Target sectors include

those industries, such as nursing and the IT sector, that rely heavily on 457 workers;

and,

d) training and support initiatives for sectors of critical national priority. Target sectors

include industries experiencing significant increase in labour demands, such as the

aged care and disability care sectors.

6.3 That funds raised through the training contribution be dedicated to this training role

and that the government reports annually on how these monies are spent by the

Department of Industry.

6.4 That there be a new sponsor obligation to ensure that the cost to the sponsor of the

training contribution cannot be passed onto a 457 visa holder or third party.

Recommendation 7 - English language requirement

7.1 That the English language requirement be amended to an average score.

For example, in relation to International English Language Testing System, the 457 applicant

should have an average of 5 across the four competencies (or the equivalent for an

alternative English language testing provider).

7.2 That greater flexibility be provided for industries or businesses to seek concessions

to the English language requirement for certain occupations on a case by case basis, or

under a Labour Agreement, Enterprise Migration Agreement or Designated Area Migration

Agreement, as appropriate.

7.3 That consideration be given to alternative English language test providers.

7.4 That consideration be given to expanding the list of nationalities that are exempt

from the need to demonstrate they meet the English language requirement.

7.5 That instead of the current exemption which requires five years continuous study,

five years cumulative study be accepted.

Recommendation 8 - Genuine position requirement

8.1 That there be targeted training for decision-makers in relation to the assessment of

the genuine position requirement.

8.2 That before decision-makers refuse a nomination on the basis of the genuine

position requirement, the sponsor be invited to provide further information to the

decision-maker.

Recommendation 9 - Skills assessments

9. That the government should explore how skills assessments could more

appropriately recognise a visa applicant's experience.

Recommendation 10 - Sponsorship

10.1 That Standard Business Sponsors should be approved for five years and start-up

business sponsors for 18 months.

10.2 That as part of the government’s deregulation agenda, the department should

develop a simplified process for sponsor renewal.

10.3 That the department consider combining as many sponsorship classes as possible.

10.4 That when more detailed information is available, the department should investigate

the alignment of overseas business and Labour Agreement sponsorship periods with the

general Standard Business Sponsorship approval period.

10.5 That the timeframe for the sponsor to notify the department of notifiable events as

set out in legislation should be extended to 28 days after the event has occurred.

10.6 That the department should explore options that would enable the enforcement of

the attestation relating to non-discriminatory employment practices.

10.7 That it be made unlawful for a sponsor to be paid by visa applicants for a migration

outcome, and that this be reinforced by a robust penalty and conviction framework.

Recommendation 11 - Fees

11. That the government should review the fee structure, especially for secondary visa

applicants and visa renewal applications.

Recommendation 12 - Information provision

12.1 That sponsors be required to include as part of the signed employment contract:

a) a summary of visa holder rights prepared by the department; and,

b) the Fair Work Ombudsman’s Fair Work Information Statement.

12.2 That improvements be made to both the accessibility and content on the

department’s website specific to 457 visa holder rights and obligations, and utilising the

department’s significant online presence more effectively to educate 457 visa holders on

their rights in Australia.

Recommendation 13 A streamlined approach

13.1 That consideration be given to creating streamlined processing within the existing

457 programme as a deregulatory measure. To maintain programme integrity, streamlining

should be built around risk factors including business size, occupation, salary and sponsor

behaviour.

13.2 That should the recommended nomination and visa streamlining outlined in this

report be implemented, the department should investigate a redefined accredited sponsor

system. Current accredited sponsors should retain their priority processing benefits until

their sponsorship ceases; however, no further sponsors should be afforded accredited

status until a new system is implemented.

Recommendation 14 - Labour Agreements

14.1 That Labour Agreement negotiation times be significantly improved to enable a

demand-driven and responsive pathway for temporary migration, where the standard

457 programme arrangements are not suitable.

14.2 That to enable the Labour Agreement pathway to be more open and accessible for

additional industry sectors, consideration be given to the development of other template

agreements that will address temporary local labour shortages in industries of need.

Recommendation 15 - Pathways to permanent residence

15.1 That 457 visa holders be required to work for at least two years in Australia before

transitioning to the Employer Nomination Scheme or Regional Sponsored Migration

Scheme, and that consideration be given to the amount of time required with a nominating

employer being at least one year.

15.2 That consideration be given to reviewing the age restriction on those 457 visa

holders transitioning to the Employer Nomination Scheme or Regional Sponsored Migration

Scheme.

15.3 That consideration be given to facilitating access for partners of primary sponsored

457 visa holders to secure permanent residence under the Temporary Residence Transition

stream.

Recommendation 16 - Role of education

16. That consideration be given to the allocation of more resources to programmes

aimed at helping sponsors understand and comply with their obligations, whether those

programmes are delivered directly to sponsors or through the migration advice profession.

Recommendation 17 - Monitoring

17. That greater priority be given to monitoring, and that the department continue to

enhance its compliance model to ensure those resources are applied efficiently and

effectively.

Recommendation 18 - Inter-agency cooperation

18.1 That there be greater collaboration between the department and the Australian

Taxation Office to uphold integrity within the 457 programme and minimise the burden on

employers.

18.2 That a change to 457 visa conditions be introduced to place an obligation on the visa

holder to provide the department with their Australian tax file number.

Recommendation 19 - Fair Work Ombudsman

19.1 That the Fair Work Ombudsman’s current complementary role in monitoring

compliance and referral of findings to the department for action should continue.

19.2 That the department should provide information in real time that is both current and

in a format compatible with that of the Fair Work Ombudsman..

Recommendation 20 - Fair Work Commission

20.1 That the department monitor decisions of the Fair Work Commission, so as to

determine if sponsors have breached obligations or provided false and misleading

information

20.2 That the department require sponsors, when lodging a new nomination application

to certify that there has been no change to the information provided to the department in

relation to whether the business or an associated entity has been subject to "adverse

information" as that term is defined in the legislation.

Recommendation 21 - Sanctions

21.1 That dedicated resourcing be made available to the department to enable the

investigation and prosecution of civil penalty applications and court orders.

21.2 That the department disclose greater information on its sanction actions and

communicate this directly to all sponsors and the migration advice profession as well as

placing information on the website.

Recommendation 22 - Systems enhancements

22. That the department investigate the feasibility of system improvements that

facilitate greater linkages with information held by other government agencies.

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457 Sponsor Monitoring & Audits

The experienced team of immigration lawyers at Nevett Ford can assist and advise your business about the minefield of obligations and undertakings associated with sponsoring an overseas worker on a subclass 457 visa.  

Once a candidate moves into a business on a 457 visa, we can guide you throughout the length of the sponsorship to ensure that your business fulfils its duties as required by the Department of Immigration & Border Protection (DIBP) and the Australian Federal Government. We can assist with managing the workforce and advise on immigration in terms of hiring and terminating, when the business requires.

If you have any questions or require advice about sponsoring an overseas worker, please contact Ryan Curtis-Griffiths at Nevett Ford Lawyers Melbourne by telephone: +61 3 9614 7111 or by email: rcurtisgriffiths@nevettford.com.au or any other member of the immigration law team.

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Stop Attacking Skilled Migration - Minister for Australian Immigration, Scott Morrison MP

DIBP Minister, Scott Morrison, has called on the Labor Party to stop attacking skilled migration, following a recent change to the sponsoring of 457 visa holders.

The change in question, described by Minister Morrison as being “quite minor”, involves approved sponsors of 457 visas having to fill out less paperwork when they have reached a certain number of employees, and instead, every 457 employee must satisfy the current tests required when finding an Australian to do the job first. His defence of such a change was that it will save the time of busy employers by removing additional paperwork in order to find an overseas worker to do the job available that could not be filled by an Australian resident.

With unemployment rising, the unions and the Labor Party haven’t taken the change well, with leader Bill Shorten attacking skilled migration. Meanwhile, Morrison claimed that “there should be a unity ticket on skilled migration in this country, but clearly there isn’t, the Labor Party is still going to oppose it.”

If you have any questions or require advice about your eligibility to apply for Australian permanent residence or a temporary skilled visa, please contact Ryan Curtis-Griffiths at Nevett Ford Lawyers Melbourne by telephone: +61 3 9614 7111 or by email: rcurtisgriffiths@nevettford.com.au or any other member of the immigration law team.

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