The Temporary Work (Skilled) Visa, commonly known as the Subclass 457 Visa, is the most common visa used by employers who want to sponsor foreign workers to fill an open position in their business.
The Subclass 457 visa is a temporary visa that allows an Australian company to employ overseas workers for up to 4 years. There may be a pathway to permanent residence available to those who have worked for an Australian employer as the holder of a Subclass 457 Visa for at least 2 years through the Employed Nominated Scheme or the Regional Sponsored Migration Scheme.
There are 3 stages in the application process, being:
1. Employer Sponsorship;
2. Employer Nomination;
3. Visa Application.
Stage 1: Employer Sponsorship
To begin, your company that seeks to sponsor a foreign worker for a Subclass 457 Visa must apply for approval as a standard business sponsor. The approval is valid for up to 5 years and will allow you to nominate an overseas worker for an open position in your business.
In order to be approved as a standard business sponsor, if your business has been operating for at least 12 months, it must satisfy certain “Training Benchmarks”. You must prove one of the following:
1. Training Benchmark A: you have paid the equivalent of at least 2% of payroll expenditure (including superannuation) to an industry training fund for the training of Australian citizens or permanent residents; or
2. Training Benchmark B: you have spent the equivalent of 1% of payroll (including superannuation) on training for your employees who are Australian citizens or permanent residents. This can include, amongst other things, salaries or wages of trainees or apprentices employed under registered training contracts.
The business must submit verifiable evidence that they meet one of the training benchmarks, such as tax invoices / receipts that show it has incurred expenditure on training their Australian staff. The expenditure must have been incurred in the 12 months immediately preceding the application for the business to become a Subclass 457 Sponsor.
If the business has been trading for less than 12 months, you must submit an “Auditable Training Plan” which clearly specifies how you are going to meet either of the training benchmarks in the next 12 months.
If your business has been operating for less than 12 months, your sponsorship will only be approved for 12 months. If your business has been operating for more than 12 months, your sponsorship will be approved for five years.
There is a wide range of documentation that must be supplied to the Department of Immigration and Border Protection (DIBP) in an application for standard business sponsorship. We can advise on all the required documentation.
Stage 2: Employer Nomination
Once an approved business sponsor, your business lodges a nomination application identifying the position to be filled. This involves you identifying an open position in your business and nominating the overseas worker to fill that position. The nomination application can be lodged any time after the sponsorship application has been lodged.
For the nomination to be approved, the business must:
1. nominate the overseas worker for an occupation that is contained on the Medium and Long-Term Strategic Skills List” (MLTSSL) or the “Short-Term Skilled Occupation List” (STSOL), which are accessible at the following address:
2. satisfy the DIBP that the open position is genuine, in that that the position is necessary for business operations and fits within the scope and scale of the business. This is particularly relevant when the occupation you seek to sponsor an overseas worker under is not a “neat fit” with the nature of the business; and
3. agree to pay the overseas worker the Market Salary Rate (MSR), which cannot be below the Temporary Skilled Migration Income Threshold (TSMIT), which is currently $53,900 (plus superannuation). The amount you must pay the overseas worker is determined by what the business pays an Australian employee doing equivalent work in the same location, or if the business does not have an Australians doing similar work, various sources of government and market based data.
4. for some occupations, test the Australian labour market prior to lodging the nomination application and provide information with your nomination application about your attempts to recruit Australian workers and how you have determined on the basis of these attempts that there is no suitably qualified and experienced Australian citizens, Australian permanent residents or eligible temporary visa holders available to fill the position.
Stage 3: Visa Application
The overseas worker lodges the Subclass 457 Visa application. This can be done any time after the related nomination application has been lodged and until the nomination expires after 12 months of being granted.
The overseas worker must:
1. show that they have the necessary skills, qualifications, work experience and for the nominated position;
2. hold any mandatory licenses, registrations or professional memberships required to work in their occupation in Australia; and
3. meet language requirements by scoring at least 5.0 overall in the IELTS test with a minimum score of 4.5 in all four components.
If the application relates to the nomination of an occupation on the:
1. MLTSSL, the overseas worker will be granted a visa for four years. After the overseas worker has worked for you for two years, you can nominate them for permanent residency under the Employer Nominated Scheme.
2. STSOL, the overseas worker will only be granted a visa for two years, which can renewed perpetually. There is no pathway to permanent residency under the Employer Nominated Scheme in this instance.
Our experienced immigration lawyers have successfully handled many applications under the Subclass 457 Visa Programme. We will ensure your application is given the best prospects of success.
We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding this visa to you and inform you of the process moving forward.
To organize a initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.