If you are an employer seeking to pursue an employer-sponsored visa in Australia, you may be required to satisfy certain conditions, which are referred to as ‘caveats’. This article will explain what caveats are, when they will apply, and how to sufficiently address them.
What Are Caveats and When Do They Apply?
Caveats are specific requirements or conditions attached to certain occupations listed in the Australian and New Zealand Standard Classification of Occupations (ANZSCO). These caveats are designed to ensure skilled visa programs are used to fill skilled positions that cannot be filled via the local labour market. These are typically applied to prevent the misuse of certain visa pathways and to ensure that visa holders can effectively contribute to the Australian workforce in a manner that addresses labour shortages.
Currently, caveats only apply to certain eligible occupations under visa subclasses 482 and 186. Caveats do not apply to all ANZSCO occupations. If they do apply, an occupation may be subject to several caveats at once. Whether caveats apply and the types of caveats that apply can also vary over time as immigration laws and industries evolve.
Demonstrating that the applicable caveats are met is crucial if you want to nominate employees under certain occupations. Failing to do so can result in a nomination refusal. In most circumstances, there are no exceptions when caveats are imposed on certain occupations. However, some caveats may allow for flexibility in certain circumstances.
You should seek professional advice if you think that you cannot satisfy a caveat.
How Can I Satisfy a Caveat That Applies to My Occupation?
As caveats can vary greatly between occupations, you may need to provide different information and documents to satisfy them depending on your occupation.
Generally, you should submit in writing:
- which caveats apply;
- how and why you have satisfied them; and
- references to the supporting documents you will attach to your nomination application.
You should make this as clear, explicit and authoritative as possible for the Department of Home Affairs to understand and have confidence that the caveats are met.
Continue reading this article below the formWhat Are Some Common Caveats in Skilled Migration?
Below are some examples of ANZSCO occupations with several caveats.
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Example 1: ANZSCO occupation of Chef 351311 under the subclass 482 Temporary Skill Shortage visa
Caveat 7 will apply, which excludes positions involved in a mass production factory setting. Caveat 8 will also apply, which excludes positions involved in a limited-service restaurant setting. This includes, but is not limited to:
- fast food and takeaway services;
- fast casual restaurants;
- drinking venues with limited food service; and
- limited-service venues, such as cafes and certain pizza restaurants.
The Chef occupation is designed for a certain skill level and above, which involves:
- leadership and management;
- planning menus;
- monitoring procedures; and
- actively preparing and cooking food.
To satisfy these caveats, you should thoroughly explain the nature of the position and the business activities. You may provide:
- menus;
- photos of customer seating areas;
- position descriptions
- photos of your commercial kitchen;
- business websites; and
- examples of more complex recipes on the menu.
Example 2: ANZSCO occupation of Human Resource Adviser 223111 under the subclass 482 Temporary Skill Shortage visa
For this occupation, Caveat 2 will apply, which excludes positions not located in regional Australia. As evidence of your company’s location, you could consider providing:
- an ASIC extract; and
- business leases.
You will satisfy this caveat if your location involves a regional postcode, defined under ‘Designated Regional Areas’.
Caveat 6 will also apply, which excludes positions that have annual earnings of less than $65,000 (base AUD). Here, you may consider providing an employment contract for the intended nominee. Additionally, Caveat 10 will exclude positions that are:
- clerical;
- a bookkeeper; or
- an accounting clerk.
You should provide a clear description of the nominee’s position, including details of their duties and responsibilities.
A role that predominantly involves core human resource activities is likely to be accepted. This includes:
- coordinating the recruitment process;
- employee policy management; and
- performance management.
Example 3: ANZSCO occupation of Accountant (General) 221111 under the subclass 186 Employer Nomination Scheme (TRT) visa
Caveat 6, as explained above, will also apply here. Additionally, Caveat 19 will apply, which excludes positions in businesses that have an annual turnover of less than $1 million (AUD). Here, you should consider providing recent and verified financials of your business.
Caveat 21 will also apply, which excludes your business if you have less than five employees. You may consider providing:
- an organisational chart; and
- evidence of employment for each employee.
The government will also consider additional factors for Caveats 19 and 21, including if:
- the business is an overseas business expanding to Australia;
- an overseas parent company would meet these caveats;
- there are special circumstances that may warrant an exemption, such as if the position is of particular importance to the Australian economy.
For the government to consider these factors, you must provide clear documentation of your circumstances.
Key Takeaways
Evidently, the circumstances and caveats can vary considerably for each business, individual and set of circumstances. It is crucial that you are aware of the applicable caveats and how to successfully demonstrate them. Meeting these requirements is essential to ensuring that you and the business can access your intended visa pathways and occupations. Failure to do so can result in application refusals.
If you require advice on whether an occupation caveat applies or how to address the applicable caveats, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
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