One of the key challenges in operating a business in today’s global economy is recruiting talent. Sometimes, it is not always practical or possible to hire Australian workers for your business. Whether you have a large company and hire a lot of foreign workers, or you would like to hire one foreign worker for a specialised position, it is important to understand what is involved. This article will explain the process of hiring and sponsoring temporary foreign workers and the requirements that you need to follow.
The 457 Visa
You may have heard of the 457 visa. This visa used to be the go-to visa for temporary foreign workers who were sponsored by an employer in Australia. As of March 2018, the 457 visa has been replaced by the 482 Visa, also known as the TSS visa (Temporary Skill Shortage visa). There are three main steps when sponsoring a foreign worker using the 482 (TSS) Visa.
1. Your Business Must be an Approved Business Sponsor
Firstly, in order to sponsor a foreign worker, your business must be an approved business sponsor. There are three main types of approved business sponsors:
- overseas; and
Most employers will be standard business sponsors. Overseas business sponsors are businesses based outside Australia, but who wish to sponsor employees to work in Australia for a set contract or role. Accredited business sponsors are generally large companies with an ongoing need for regular foreign workers. Typically these businesses are publicly listed companies with more than 200 employees. There are significant benefits to being an accredited sponsor, including faster processing times and more relaxed labour market testing requirements.
In addition, you can have any kind of business structure to be a business sponsor, as long as you meet the requirements in your application. If you are an approved business sponsor and your business structure changes, you may need to re-apply for a standard business sponsorship.
How Does my Business Become a Business Sponsor?
In order to become an approved business sponsor, you will need to apply to the Department of Home Affairs. If the Department approves your application, you will be an approved business sponsor for five years. If you are an accredited business sponsor, you will be an approved business sponsor for six years.
There are two key requirements for becoming a business sponsor.
Lawfully Operating Business
The first requirement is that you must demonstrate that your business has been lawfully established in the relevant country. For example, if you have an Australian company, you must provide certain documents such as your:
- ABN registration certificate; and
- ASIC company extract.
You must also demonstrate that your business is currently operating. You can do this by providing evidence such as financial reporting.
Adverse Information Against Your Business
If there is unfavourable or adverse information against your business, the Department may refuse your application to become a standard business sponsor. Examples of adverse information can include if your business:
- has contravened any national or state law;
- is insolvent; or
- has previously supplied the Department of Home Affairs with any false or misleading information in a previous application.
If you are a business in Australia, you must also state in writing that you have a commitment to employing local labour and that you will not engage in any discriminatory recruitment procedures.
Alternatively, if you have a business based outside Australia, you must demonstrate that you are seeking to employ a skilled worker either to:
- fulfil or assist with a contract based in Australia; or
- establish your business operations in Australia.
2. Your Business Must Nominate the Employee
After your business has been approved as a business sponsor, the next step is to nominate the position you want to fill.
The nomination process has become more comprehensive since the introduction of the 482 Visa. It is important that businesses follow the appropriate procedures and requirements in order to receive a successful nomination grant.
Occupation Must be on the Approved List
The occupation you nominate must be either on the Short-term Skilled Occupation List (STSOL) or Medium and Long-term Strategic Skills List (MLTSSL). If you intend to nominate an occupation in a regional area, you can refer to the Regional Occupation List. If the occupation you want to nominate is not on the list, you may be able to enter into a labour agreement with the Australian Government.
Each list will have different occupations associated with them. Normally, if an employer nominates an occupation under the STSSL, the employer will not be able to sponsor the worker on permanent resident visa. However, if the occupation is on the MTLSSL or regional list, the employer can sponsor the worker on a permanent residency visa.
Labour Market Testing
It is the employer’s obligation to demonstrate to the Department of Home Affairs that you have attempted to recruit from the Australian labour market. You can meet this requirement by placing two advertisements on national and prominent job search websites such as Seek or jobs.gov.au. The advertisements need to run for 28 days and you must apply for the nomination within four months of completing the advertisement. Advertising the position on social media (such as Twitter, Facebook or Instagram) is not sufficient to meet the requirements.
There is no labour market testing requirement if your intended nominee is a citizen or national of:
- New Zealand; or
There are some other situations where labour market testing is not required. This includes when the nominee is a current employee of an associated entity of the sponsor, and that entity is in certain countries.
The Position Must be Genuine
The position that you advertise must be a genuine and full-time position. If you create an unnecessary position in your organisation for the sole purpose of bringing a friend or family member to the country, the Department of Home Affairs will likely refuse your nomination application.
Pay the Nomination Contribution Training Charge
You must also pay a ‘nomination contribution training charge’ (NTCC) when lodging the nomination application. For temporary work visas, businesses with turnover of:
- less than $10 million per year incur a charge of $1,200 per year, per worker; or
- above $10 million, the charge is $1,800 per year, per worker.
Permanent visas incur a one-off charge of $3,000 per worker, with a charge of $5,000 per worker if your business turnover is above $10 million.
3. The Employee Must Apply for the Visa
Once the Department approves the nomination application, the next stage is completing the visa application for the foreign worker.
To be eligible for the 482 (TSS) Visa, the applicant must have at least two years work experience in the relevant occupation. This is a key difference from the previous 457 Visa, where experience requirements were not as strict.
They may also be required to complete a skills assessment, and meet English language requirements (if they are from a non-English speaking country).
They must also be a person of good health and character. Therefore, if the applicant has any significant health problems or a criminal history, there is a risk that their visa application may be refused.
The process of sponsoring a foreign employee under a 482 visa can seem tricky, but it may be necessary to help grow your business. It is important to remember that:
- your business must be an approved business sponsor;
- your business must nominate the employee; and
- the employee must apply for the visa.
If you think you would like to sponsor a foreign worker or workers and have any questions, you can contact LegalVision’s immigration lawyers on 1300 544 755 or fill out the form on this page.
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