Sponsoring Workers

The subclass 482 TSS Visa program is designed to enable employers to address labour shortages by bringing in genuinely skilled workers in circumstances where they cannot source an appropriately skilled Australian to fill the position. As a result, it should not be used by businesses primarily to “create a position” – for example, in order to facilitate the entry, or stay, of the nominee and/or a family member to Australia rather than using more appropriate visa pathways where available.Eight examples of factors that might indicate that facilitating the entry or stay of the nominee is the primary objective of the application are:

• The nominee is a relative or personal associate of an officer of the sponsoring business.
• The nominee is a director or owner of the sponsoring business.
• The nominee is currently in Australia and already working for the sponsor and/or the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.
• The business has been in existence for a very short period of time (for example, the business was created in the last 3-6 months and appears to have just been “created” for the purpose of migration).
• The proposed salary is significantly lower or significantly higher than industry standards.
• The business has a relatively small turnover that could indicate that at the nominated salary provided, it would be difficult to support the number of proposed employees at the business.
• The business does not employ any or employs very few Australian employees.
• There is evidence that the business may have received, or will receive, payment from the nominee for lodging the nomination. In this case, refer the case to 457 Program Management

If you are looking to sponsor an overseas worker on a short term basis to perform specific professional activities, the 400 visa may be suitable for your purposes.

• stay in Australia for up to three months (up to six months in limited circumstances)
• bring eligible family members with them.

Depending on your work requirements, you may be allowed to travel in and out of Australia on your 400 visa.

The 400 visa has three streams:

• Highly Specialised Work stream: for someone who will undertake work that is highly specialised and not in an ongoing position.
• Invited Participant stream: for someone who has been invited to participate in an event by an Australian organisation. The event must be short-term and the person cannot be paid for their participation apart from under limited circumstances.
• Australia’s Interest stream: for someone who is required to travel to Australia because of compelling circumstances that affect Australia’s interests. How to apply for a 400 visa You must apply for a 400 visa from outside Australia. A visa applicant in all streams must demonstrate that they satisfy prescribed criteria, including that they:

How to apply for a 400 visa

You must apply for a 400 visa from outside Australia. A visa applicant in all streams must demonstrate that they satisfy prescribed criteria, including that they:

• possess the attributes and experience to carry out the proposed work
• need to be in Australia to perform the work
• have the means to support themselves during their stay
• genuinely intend to stay in Australia temporarily
• do not intend to study in Australia
• meet health and character requirements.

Please note that the above list is not exhaustive and other criteria may apply. Please consult us for more details.

You are able to include family members in your 400 visa application if they satisfy particular criteria. Please consult us for more details.

Additional criteria

Depending on the stream in which you apply for a 400 visa, you will need to show that you satisfy additional criteria:

Highly Specialised Work stream

• your skills are highly specialised and cannot reasonably be found in the Australian labour market. For example, a 400 visa may be appropriate for some intra-company transfers
• you meet, or will be eligible to meet, any registration or licensing requirements to work in your nominated position
• your work is short-term and will not have adverse consequences for the employment or training of Australians.

Invited Participant stream

• you need to provide details of the invitation by an Australian organisation. For example, a 400 visa may be appropriate if you are a sports person participating in a sporting event organised by an Australian sports body
• you need to demonstrate that you will not be paid during your time in Australia. Limited exceptions apply such as the potential to receive prize money in a sporting event
• your work is short-term and will not have adverse consequences for the employment or training of Australians.

Australia’s Interest stream

• you need to show the compelling circumstances affecting Australia’s interests. For example, a 400 visa may be appropriate if you can show that Australia would miss out on a significant business or cultural opportunity if you are not granted the visa.

Please note that the above lists are not exhaustive and other criteria may apply. Please consult us for more details.

Benefits and common issues with a 400 visa application, and how we can help you

A 400 visa can be an attractive option for employers because the visa application does not also require a sponsorship and nomination application and the costs are less than that for a 457 visa. However, if a 400 visa is not the right fit and the overseas worker does not meet the requirements of the visa, their application may be refused. We therefore recommend that you seek advice about whether the 400 visa is the most appropriate visa for your business and your employees.

Our experienced Immigration Lawyers can also assist you with some of the common issues that arise with a 400 visa application including:

• if applying in the Highly Specialised Work stream, demonstrating that the work is highly specialised and the applicant needs to be in Australia to perform the work
• a visa is required urgently because of the timing of the event in which the applicant is invited to participate, such as a sporting competition or a trade show
• if a 400 visa is required for more than three months, please note that a strong case will need to be presented to the Department of Immigration.

The 407 visa allows Australian organisations to sponsor applicants on a temporary basis to participate in occupational training or professional development activities. Australian organisations must be approved as training sponsors to be able to nominate an applicant for the 407 visa.

• Apply for the visa whether you are onshore or offshore
• live and work as a trainee in Australia for up to 2 years
• travel to and from Australia during the visa period
• include family members

Three different streams apply:

• Occupational training required for registration for applicants who require registration, membership or a licence to work in Australia or their home country
• Occupational training to enhance skills in an an eligible occupation for applicants who wish to participate in structured workplace-based training in relation to an occupation listed on the relevant skilled occupation list to improve their skills
• Occupational training for capacity building overseas for applicants who require training as part of their overseas study or who are supported by an Australian or overseas government organization or for professional or management level employees of an overseas organisation

Main facts and requirements:

• company must be approved as a temporary activities sponsor
• company must provide full structured training plan
• application consists of a 3 stage process – sponsorship, nomination and visa application
• minimum salary requirement does not apply however salary or wages payable to trainees must be in accordance with Australian labour laws and practices
• Applicants must be at least 18 years of age unless exceptional circumstances apply
• Applicants must achieve functional english requirement, equivalent to IELTS 4.5 average
• Applicant must provide evidence of funds to support themselves
• Applicant must undertake the occupational training identified in the nomination unless the training is to be provided by the Commonwealth
• unpaid volunteer work may be accepted
• Workplace-based occupational training for streams other than professional development training programmes must be for at least 30 hours a week and at least 70 per cent of this training must be workplace-based, 30 per cent can be classroom based
• For occupational trainees:
• 1 year of closely related work experience to the nominated occupation is required in the last 2 years or applicant must be a recent graduate in the last 12 months with qualification closely related to the nominated occupation and meet minimum qualification requirement for the occupation
• the sponsor must be the training provider

Applicants cannot:

• stop undertaking the nominated and approved occupational training program in relation to which the visa was granted
• undertake any work outside of the nominated and approved occupational training program in relation to which the visa was granted

The Temporary Skills Shortage (TSS) visa subclass 482 is for skilled individuals who want to work in Australia temporarily. Depending on your job and your skills, the Temporary Skills Shortage (TSS) visa subclass 482 lets you work in Australia for up to four years and allows you to travel to and from Australia throughout its duration. It also allows your family members to work and study here.

You may be eligible to apply if you:

• have been successfully nominated for a position by an approved sponsor
• have adequate health insurance
• have the required skills and qualifications
• meet English language requirements
• comply with other requirements and conditions as outlined by the Australian Government

The Temporary Skills Shortage (TSS) visa subclass 482 is made up of three streams and, as a TSS visa applicant, you must also meet the requirements of the stream in which you apply

• the Short-Term stream
• the Medium-Term stream
• the Labour Agreement stream

The following requirements need to be satisfied by the primary visa applicant under both the Direct Entry and Temporary Residence Transition streams. Hence, these are common requirements which need to be satisfied by the primary visa applicant under either of these streams. In addition to these requirements, the primary visa applicant needs to satisfy the specific and different requirements that apply to the particular stream that the primary visa applicant is applying under – see below explanation:

• Age:Primary visa applicant must be under 45 years of age at the time that the visa application is lodged (primary applicant can turn 45 years of age or older after lodgement of the visa application). There are only a few allowed exemptions to this age requirement.
• English:Competent English language ability is required for both the TRT and DE streams. Primary applicants under the Labour Agreement stream must also demonstrate Competent English ability, unless your sponsoring employer/business has a Labour Agreement that provides a lower English requirement. You can use an English result from an examination conducted within the last 3 years immediately before the date of lodgement of your visa application. You may however be required to achieve higher English examination scores than the minimum English requirement of Competent English if this is required for your skill assessment (Direct entry stream), or if a higher level of English is required in order to obtain mandatory registration, licence or professional membership that is required to work in your nominated occupation.
• Holds (or is eligible for) any mandatory registration, licence or professional membership: If any mandatory registration, licence or professional membership is required to work in your nominated occupation, then you hold or are eligible for this mandatory registration, licence or professional membership. For example, you need to be registered (or be eligible for registration) with the Australian Health Practitioner Regulation Agency to work in Australia as a registered nurse, doctor and other health care professional occupations
• Applying in Australia: You can apply for this visa if you are in Australia as a temporary visa holder, or a Bridging visa A, B or C (if you are a Bridging visa A, B or C, then you will not be able to lodge this visa application when you are in Australia if you have had a visa refusal and you are waiting for a Tribunal or Court hearing due to Section 48. You can apply for a Bridging visa B, which allows you to temporarily leave Australia to lodge your 186 visa application and then return to Australia. The Department can decide your 186 visa application when you are in Australia).
• Health and character:Primary visa applicant and all members of his or her family unit must satisfy the health and character requirements for the grant of a permanent residency visa. If any member of the family unit fails to satisfy the health and/or character requirements, then the visa applications may be refused for the primary applicant and all family members. Members of the family unit who are not included in the visa application also need to satisfy the health and character requirements, even though he or she is not included in the permanent residency visa application.
• Commitment to work in nominated role: Visa applicant needs to make the commitment to work in the nominated role for a period of at least 2 years from the date that permanent residency is granted. The employer will also need to make the commitment to ensure that the nominated role is available to the visa applicant for a period of at least 2 years.

Important: You will need to find an Australian business to sponsor you before you can proceed with your application. You cannot complete this employer sponsored visa independently without an Australian employer. As far as we are aware, you are unlikely to receive an invitation if you are trying to find an employer through the Department’s Expression of Interest database. Please note that the above listed requirements are not the only requirements that the visa applicant and the employer/sponsor need to satisfy in order to obtain a 186 visa. The above only outlines the key requirements.

Regional Sponsored Migration Scheme (RSMS) visas, or subclass 187 visas, are permanent residency visas available for skilled workers. They are available both to skilled workers who are already living and working in Australia as temporary residents, and to skilled workers living outside Australia. To be eligible for this visa, a worker must be nominated by an employer in regional Australia.

WHAT DOES THIS VISA ALLOW YOU TO DO?

Once a 187 visa is granted, the visa holder must maintain the nominated occupation within the nominated postcode, for a minimum of two years, unless circumstances outside of their control arise which preclude this. Dependent family members may be included

WHO CAN APPLY FOR THE SUBCLASS 187 VISA?

The subclass 187 visa has two streams, the Temporary Residence Transition (TRT) Stream and the Direct Entry (DE) Stream. Each stream has different criteria.

To apply in the TRT stream, you must be the holder of a subclass 457 visa, 482 visa, or a Bridging Visa granted in association with one of these visas.

HOW DO I QUALIFY FOR A SUBCLASS 187 VISA?

The Temporary Residence Transition Stream There are two cohorts of applicants who may apply through the TRT stream; those who had applied for or held a 457 visa before 18 April 2017, and those who applied for a 457 or 482 visa after 18 April 2017.

If your 457 visa was applied for pre 18 April 2017, and was subsequently granted, you can apply for the 187 visa once you have worked with your sponsor for a minimum of two years whilst the holder of this visa, on the basis of grandfathering arrangements set out by the Department of Home Affairs. You must be under 50 years of age.

If your 457/482 visa was granted after 18 April 2017, you can then apply for the 187 visa once you have worked for your sponsor for three years whilst the holder of this visa, provided your occupation is listed on the ROL. In this situation, you must be under 45 years of age.
All applicants in this stream must demonstrate that they have earned the salary nominated in their 457/482 nomination in each relevant year.

The Direct Entry Stream
Applicants in the DE stream must have an occupation on the MLTSSL or the ROL and must demonstrate that they have the skills required for the nominated occupation. The level of skill to be demonstrated varies in accordance with the occupation, however in all cases at least two years of employment at the skilled level is required. Applicants must be less than 45 years of age.

HOW DO I APPLY FOR A SUBCLASS 187 VISA?

An employer nomination must be lodged on behalf of an applicant before a visa application can be made. This nomination will outline the nominated occupation, terms and conditions of employment, and the financial viability of the nominating business. Employers must also detail how the position came to be available and justify the need to nominate the applicant. The nomination must also be accompanied by the Skilling Australia Fund levy . A corresponding visa application can then be submitted. In some cases applicants will be required to provide a skills assessment that was obtained prior to lodging their visa application. All 187 visa applications require a competent English score (IELTS 6 or equivalent, unless exempt), as well as evidence that the applicant meets the health and character requirements.