Stephen:
Welcome everybody to our webinar on managing corporate immigration risks and what in-house counsel needs to know. I am Stephen, the Enterprise Account Executive here at LegalVision, and I will be MC’ing this webinar. We are joined by one of our Practice Leaders, Yin, to talk through all things immigration and what those risks look like for the business.
Before we begin, a couple of quick housekeeping items. After the webinar, you will receive the recording and the slides in your email. Any questions that you have throughout the webinar, please submit them through the Q&A box and Yin will answer them at the end. We will send out a feedback survey after the webinar; if you are able to complete that, that would be fantastic. If you stay until the end of the webinar, you can enter our Apple AirPods monthly draw, so a little bit of fun and a little bit of a game to win there.
By coming to these webinars, you are eligible for a free consultation with myself and the Enterprise team here at LegalVision to learn how we can support your in-house team and help them manage some of the high-volume business-as-usual legal needs. If this is something of interest, there will be a section in the survey at the end to provide your contact details. I will dive into this a little bit further after the webinar.
What I will do now is hand over to Yin to talk through what we will be looking at today in the webinar, and we will go forward from there.
Sponsoring overseas workers as an Australian business is complicated. Let us simplify it for you with this free employer guide.
Yin:
Thanks, Stephen. Welcome everyone. We are so pleased to have you today at our webinar, and we will be talking about all things corporate immigration and the risks that Australian businesses and employers need to be aware of when they are looking at employing individuals on temporary visas and when they become, or if they are already, an approved business sponsor.
This is our agenda today. As you can see, there is quite a bit to cover. I will talk briefly about why this is such an important topic and issue, and then discuss and outline some of the key immigration risks. I will go through in detail some of the temporary visas that an employer should be aware of and what conditions apply to them. Then we will break down the sponsorship obligations, because they can be quite confusing at times, and then explain what would happen in the event of non-compliance.
So let us get started. Why is this such an important issue today? The reason is that historically immigration compliance and understanding the risk from an Australian business perspective may have been overlooked in the past or may not have been afforded the appropriate importance that it should. There have been a number of changes in the Australian migration climate, such as stronger compliance sanctions, enforcement, and monitoring to ensure that migrant workers are not exploited. This is driven by the Department of Home Affairs through its Sponsorship Monitoring Unit and its enforcing officers, the Australian Border Force.
When you employ someone who holds a temporary visa or sponsor someone on an appropriate work visa, there are a lot of implications for businesses these days, and we are going to explore that in more detail. The first is having an appropriate attitude where, as a business owner or representative of a corporation, you appreciate that these risks could potentially land you in hot water if not appropriately dealt with.
There are a lot of complex situations these days, including understanding the visas that employees hold, global mobility issues in corporate transfers, and the tenure and employment of a sponsored employee. As I mentioned, the main body that enforces obligations in respect of approved sponsors and those that employ temporary visa holders is the Australian Border Force. They have wide-ranging powers and often work in collaboration with the Fair Work Ombudsman and Commission.
So let us move on to the next topic: what are some of the key risks that arise? Often the key risk is visa compliance failures. This occurs when an Australian employer may not understand their employees’ temporary visa situation or the conditions that apply. They may not understand the work rights and may inadvertently contribute to some form of breach, which is obviously not good.
Another common issue is not conducting appropriate work rights verifications. There is a simple process to do this, and we will talk about that later when discussing business strategies. The second major risk is not understanding sponsorship obligations. A business may apply to become an approved sponsor for the purpose of sponsoring someone on a 482 or 494 visa, and they may not understand what obligations apply to them and for how long.
This happens quite a bit in do-it-yourself sponsorship applications or where the business simply takes the lead from the employee. They may consider, “Well, this is the employee’s visa, so we do not have much input besides providing documents.” That is not the case at all. You have significant input, and there is a great deal of information and obligations you need to be aware of.
How does a business comply with its obligations when certain events occur? Sponsorship obligations are not a one-time situation; they apply throughout the sponsorship period, which is often five years and sometimes up to seven years. A lot can happen within that period. You need to understand what to do in different circumstances. Do you notify the department? Do you lodge a new application? What proactive or reactive steps must you take?
The last major risk is ineffective recordkeeping. This includes not having appropriate systems in place to check visa expiry dates, not having documentation showing the sponsorship and employee arrangements, and not having that information available if the Australian Border Force conducts an investigation.
Let us talk about situations relevant to employers of temporary visa holders and approved sponsors. An Australian employer can hire temporary visa holders without being an approved sponsor, such as those on working holiday visas, student visas, graduate visas, or family visas. These visas all have specific conditions and can become complex, especially if the employee has a complex immigration history or is on a bridging visa.
We often get questions about how to accurately calculate the six-month working limitation for working holiday visa holders. There is a lot of information and exemptions on the Department of Home Affairs website. Issues can arise when assessing hybrid working arrangements or when the person transitions to their second or third working holiday visa. Typically, the six-month period resets when the second or third visa is granted or when a bridging visa activates. You can plan effectively around this, but you must understand the timelines.
Student visa holders have separate issues. Whether they are the primary or secondary applicant matters. The primary applicant may only work 48 hours per fortnight while their course is in session, but postgraduate research students can work full-time, as can their secondary applicants. If the primary applicant studies a master’s by coursework, they can only work part-time, although the secondary applicant may work full-time.
Bridging visas add another layer of complexity, as there are six types with different conditions. Where unclear, it is important to get advice because the employee’s previous immigration history informs current visa conditions.
Now let us move to sponsorship obligations. Many employers become approved sponsors to sponsor someone on a 482 or 494 visa. Often the first approach is that an employee on a temporary visa asks, “Can you sponsor me?” and the employer believes it is simply a matter of lodging applications. However, with the application to become an approved sponsor, there are extensive obligations that apply throughout the sponsorship’s validity and throughout the sponsored worker’s employment.
Some obligations are self-explanatory, such as cooperating with inspectors (the Australian Border Force). Ensuring equivalent terms and conditions of employment is critical. You must continue to meet minimum employment entitlements for sponsored workers, and these must be consistent across your workforce.
Another key obligation is paying the travel costs to enable a sponsored person to leave Australia. This often causes contention. Employers ask whether they must pay this if the employee was dismissed for misconduct. The answer is yes. It only applies to reasonable travel costs and only if the worker requests this in writing. You may undertake your own independent research to determine appropriate travel costs, pay them, record the information, and be satisfied that you have met the obligation.
There is also an obligation to pay costs incurred by the Commonwealth to locate and remove an unlawful non-citizen, though this is rare and only occurs in serious circumstances, such as immigration detention.
Recordkeeping is also important. Many businesses overlook this, and inadequate recordkeeping becomes an issue during Australian Border Force audits. Sponsors must notify the department when certain events occur. Common cases include change of business address, change of director, or change of shareholders. These must be notified within 28 days. Failure to do so can lead to action, and I have seen this occur frequently.
Another common case is where the sponsored employee’s duties change. You must determine whether this change is minor or fundamentally alters the occupation for which they were sponsored. If the role has changed too significantly, you may need to lodge a new application. Similarly, decreasing the salary of a sponsored worker is problematic and requires more than a simple notification; it requires a new application.
Now let us talk about the cost of non-compliance. The Australian Border Force can cancel sponsorship, bar the business from future sponsorship, issue penalty notices, or issue warnings. Their response depends on whether it was a one-off situation or part of a broader pattern of breaches.
The Australian Border Force enforces sponsorship obligations through the Sponsorship Monitoring Unit and has broad discretionary powers, which expanded at the end of 2023. Their remit is to ensure that migrant workers are not exploited and to conduct audits and investigations. They may request information at any time, such as payslips or salary-setting information, and usually allow only 14 days to respond. If your records are in order, this becomes manageable.
They also have the power to visit business premises without prior notification. They may interview staff and record interviews.
A bill is currently before Parliament to introduce a public register of approved sponsors. Currently, only a register of sanctioned sponsors exists.
There is a due process that the Australian Border Force follows: request information, conduct an investigation or audit, issue a notice of intention to take action, and allow the employer an opportunity to respond. If the response is not accepted, the ABF may cancel sponsorship, bar future sponsorship, publish the sanction, or issue penalties. Adverse information cannot be disregarded for future sponsorship applications, including permanent residency nominations.
Given these risks, it is important to work with an experienced legal practitioner to identify risks within your business. Taking proactive measures—such as improving recordkeeping, understanding obligations, and obtaining training—can significantly reduce exposure.
How do we build an effective compliance network? It starts with understanding that this is a significant business risk. You should identify the composition of your workforce, whether you rely on temporary visa holders, and whether you are an approved sponsor. You should conduct regular work rights checks, maintain records, and ensure they are readily accessible.
Training is crucial. LegalVision provides sponsorship monitoring and compliance training, including a full breakdown of key immigration risks and how to mitigate them. Once you receive training, you should train the relevant staff within your organisation. There must be a key representative or team that manages immigration compliance.
This may involve ensuring that employment contracts are up to date, that market salary research is current, and that changes within the business—such as mergers or acquisitions—are identified and notified where required.
As you can see, there is a lot to consider. It starts with internal systems and continues through to understanding exit strategies for sponsored employees and your obligations when their employment ceases.
That covers the webinar content today. I have gone through this at a high level because each component involves extensive detail. A few final tips for when you should seek immigration specialist advice: if you have been contacted by the Australian Border Force, whether via email, phone call, or a visit to your premises; if specific training is required; if changes within your business structure may impact visa holders; and if inadvertent breaches have occurred and you need to take proactive measures to maintain your standing as an approved sponsor.
Thank you everyone. I will hand back to Stephen to talk you through our next webinars and a few other things. After that I will answer your questions.
Stephen:
Thanks, Yin. A great webinar and a really important topic for many businesses, especially when it comes to immigration.
If you want to download our free guide on sponsoring foreign workers, it is available in the Resources tab of this Zoom call, and you can also scan the QR code on screen to download it. You might also be interested in joining us for our next webinar on 10 December at 11:00 a.m. Australian Eastern Daylight Time, which looks at preventing wage underpayment in your business. If you want to register now, there is a link on screen; otherwise, we will send one by email.
Off the back of this webinar, I thought it would be interesting to talk about our desk extension solution for in-house teams and growing enterprise businesses. We will answer your questions shortly, and Yin is looking forward to any live questions that have popped up.
After speaking with many in-house counsel teams and general counsel at growing businesses, we know that there is constant pressure to manage strategic input and business growth alongside the heavy load of day-to-day matters. This is especially difficult in a tough labour market, trying to find the best lawyers for the best wages and prices. The desk extension service supports the business in its day-to-day, business-as-usual legal needs, including commercial contracts and agreements, IP, data and privacy, employment, and more.
Following this webinar, Yin and I are also suggesting free consultations for businesses interested in understanding their immigration risks at a deeper level. If you would like to learn more about how we can support you both with business-as-usual matters and immigration risk assessments, feel free to enter your details in the survey at the end of this call. We will reach out and organise a time to talk through where those risks are and do a health check on your current legal position.
I will now hand back to Yin to answer the pre-submitted questions. If you have any further questions, please pop them into the Q&A box. There is also a quick poll on screen. Yin, back to you.
Yin:
Thanks, Stephen. I can see some questions have come through, so I will answer some of them.
One interesting question is about the likelihood of businesses being barred or having their sponsorship cancelled. Again, it is very much a question of the conduct and the specific breach. I have seen matters at the less serious end and at the very serious end.
Some of the case studies I mentioned earlier involve not notifying the department when certain events occur, such as cessation of employment or change of business address. If it is a one-off situation, the ABF may issue a formal warning or choose not to take action. They may say, “We will let it go this time, but do not do it again,” and record the warning.
At the serious end are matters involving underpayment, or where the sponsored employee was represented as being paid a certain amount and that minimum entitlement was not provided. If there are multiple breaches across multiple sponsored employees, the department views that very seriously and is unlikely to exercise discretion to take no action.
Another question: do I need to notify the ABF of changes to business details if I am an approved sponsor but not currently sponsoring anyone? Yes, you do. If your sponsorship approval is still valid—which is typically five years—you must notify the ABF when notifiable events occur, regardless of whether you currently have sponsored employees. Some obligations even extend for two years after the sponsorship expires, such as providing records relating to previous sponsored workers.
For notifiable events, you have 28 days from the date of the event. It is usually a simple email, and you must keep a record of the notification.
A common question relates to whether staff can pay costs associated with sponsorship. For the 482 or 494 visas, the employer must cover the bulk of the costs. There are three application fees: sponsorship, nomination, and the visa application. The sponsored employee is only legally required to pay the visa application fee. The employer must pay the sponsorship and nomination fees, government fees, and professional fees. Costs such as recruitment fees, advertising, or relocation costs cannot be recovered. If you offer a sign-on package, that must be addressed appropriately in the employment contract.
There are also temporary visas that allow short-term work, such as the subclass 400 visa for highly specialised non-ongoing project work. This visa is valid for three months or six months at most, and you must demonstrate that the work is highly specialised and non-ongoing.
Another question concerns age limits. For the 482 visa, there is no age limit. For the 494 visa, the limit is 45. Many permanent residency visas also have a limit of 45 unless an exemption applies.
I can see we are over time, so thank you for the wonderful questions and interactions. If I have not answered your question, we can cover it in a consultation later. Thank you so much for participating and joining the webinar today. I will hand back to Stephen.
Stephen:
Thanks, Yin. Some great questions. If you have questions that are more specific to your company, let us know and we can arrange a consultation. Submit your details in the survey at the end of the call for assistance with any unanswered questions and to learn more about the membership option if that is something you are exploring.
While this is a free webinar, we always value your feedback. If you could provide any feedback on what was great and what could be improved, please let us know as it allows us to improve each time.
We look forward to seeing you at the next webinar on 10 December. Thank you for joining us, and we will see you then.
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