Immigration Categories

A brief description of corporate immigration categories by assignment type follows. The appropriate immigration category or status for your employees will depend on their specific details and on your company. The most common category for corporate transfers is the Temporary Work (Skilled) visa (Subclass 457). For details on non-typical categories not listed below (investors, special programs), please contact your representative.

  • Temporary Work (Skilled) visa (Subclass 457)
  • Temporary Work (Short Stay Specialist) visa (Subclass 400)
  • Sponsored Training Visas
  • Employer Sponsored Permanent Residence

Typical Process Overview

The following process overview is applicable for the Temporary Work (Skilled) visa (Subclass 457). Current processing time before an application is assessed is in many cases in excess of 30 working days. However, note that lead time for document gathering at the start of the process should be factored in, as should processing time for completion of post arrival formalities. . See “Application Materials” section below for further details. Processing time for each individual step is noted below.

Pre-Case: Document Procurement
Processing Time: Dependent on case; usually one (1) to three (3) weeks

We will provide lists of necessary documents to all parties in preparation for the submission of Steps One to Three. Legalizations are not generally required, but documents not in English will need to be translated.

Step One: Company Sponsorship
Processing Time: Six (6) to eight (7) weeks

An employer needs to be approved as a sponsor in order to employ skilled workers from overseas. As part of the application, it will be necessary to evidence that the company in Australia:

  • Is a lawfully and actively operating business,
  • Will be the direct employer of the temporary business entrants,
  • Is committed to the training and development of Australian citizens and permanent residents,
  • Has a good business record and compiles with immigrations laws, and
  • Will bring benefit to Australia through the employment of the temporary residents.

This application must be made at the Department of Immigration in Australia and subject to grant, is generally valid for up to five (5) years and can be used for subsequent moves into Australia. This application can be made concurrently with the nomination and visa applications (see below) and should not delay the process. There are also avenues for someone employers with a good record and sufficient volume who meet all other criteria to be accredited for six (6) years and receive streamlined and priority processing.

Step Two: 457 Nomination Application
Processing Time: Six (6) to eight (8) weeks

This step is to identify the:

  • Position to be filled
  • Skills and experience required to perform the activity
  • Salary that the position will attract

It is important to note that a Temporary Skilled Migration Income Threshold (TSMIT) applies to all positions to be filled by overseas employees and that the position must be of an equivalent skill level and nature to one on a list of skilled occupations, published by the Department of Immigration. In addition to this, the Department has a Market Rate Salary requirement to ensure that sponsored overseas nationals benefit from the same terms and conditions of employment as an equivalent Australian undertaking equivalent work.

In some circumstances, it may be necessary to provide evidence to the Department of Immigration that the local Labor Market has been tested. This depends on the occupation which the position falls into as well as other factors including the sponsor’s industry. We will advise should Labor Marketing Testing be required as soon as practical. The requirement to carry out Labor Market Testing will be expanded in 2018 under the upcoming new visa type, the Temporary Skills Shortage visa, which is replacing the 457 visa.

Step Three: Subclass 457 Visa Application
Processing Time: Six (6) to eight (8) weeks

The assignee must apply for and be granted a visa in order to travel to, or remain temporarily in Australia.

The main criteria for being granted a Subclass 457 visa are as follows:

  • The visa applicant must have skills and experience which match those required for the nominated position
  • The visa applicant will be paid the salary indicated in the nomination or higher and the appropriate salary
  • The visa applicant must have personal attributes consistent with their proposed employment in Australia
  • The visa applicant must meet English language, health, and character requirements. From July 2017, police clearances will be required for applicants seventeen (17) and above and it is likely they will be required from all the countries the applicant has resided in for one (1) year or more since turning sixteen (16).

The assignee may be required to undertake specific English language and health examinations and all assignees must be of good character.

A Subclass 457 visa is valid for any period up to four (4) years. This application must be made at the Department of Immigration in Australia and is lodged online. From April 2017, visa applicants whose occupation is on the Medium Long-Term Strategic Skills List (MLTSSL) may receive a visa for up to four (4) years. Those whose occupation is on the Short-Term Skilled Occupation List (STSOL) may receive a visa for up to two (2) years. More occupations are on STSOL than are on MLTSSL, meaning the two (2) year visa is more common going forwards.

Upon approval, Subclass 457 visa holders can enter Australia without having the Subclass 457 visa physically evidence in their passport.

Typical Documents Obtained

Following the process for a Temporary Work (Skilled) visa (Subclass 457) described above will result in the obtention of the following immigration documents. Typical validity is noted next to each document name. For details on the renewal process, please see the next section, “Renewal.”

  • 457 Visa: Up to four (4) years if occupation on MLTSSL
  • 457 Visa: Up to two (2) years if occupation on STSOL

Renewal

While it is not possible to renew a Subclass 457 visa, it is possible until March 2018 to obtain new Subclass 457 visas as long as the applicant continues to meet the requirements of the visa and the employer continues to meet the requirements for sponsorship. After March 2018, the 457 visa is being replaced by the Temporary Skills Shortage visa. These visas will also be available for either 2 or 4 years depending on occupation. The 2 year visas will be able to be renewed for a further 2 years subject to again meeting all criteria, but only one renewal of the Temporary Skills Shortage visa will be available according to recent announcements. The 4 year Temporary Skills Shortage visa, for people whose occupation is on MLTSSL, may be renewed.

Permanent Residence is available for qualified candidates under the Independent Skilled Migration Scheme, the Family Migration Scheme, or the Employer Nomination Scheme.

Processing times for obtaining new Subclass 457 visas are the same as outlined above.

Deregistration

The government of Australia requires the sponsoring company of all 457 visa-holders departing the country to submit formal notification to the Immigration Department within twenty-eight (28) calendar days of the 457 visa-holder leaving the nominated position of employment. The authorized Registered Migration Agent in Australia may process the notification on the sponsoring company’s behalf. Information on dependents’ visa cancellation is included in the formal notification for the principal visa-holder.

Dependents

Dependent immigration status approval depends on the immigration status of the principal applicant. Where the principal applicant is in Australia under a Temporary Work (Skilled) visa (Subclass 457), the following rules apply for dependents:

  • Minimum age (spouses): Eighteen (18) unless exceptional circumstances apply
  • Maximum age (children): Eighteen (18), and over if stringent proof of financial dependency is submitted up to the age of twenty-three (23).
  • Unmarried partners: Recognized, with sufficient proof of the relationship
  • Same-sex partners: Recognized, with sufficient proof of the relationship
  • Non-traditional dependents (e.g. parents): Permitted if stringent proof of financial dependency is submitted
  • Work authorization granted: Yes, with issuance of most dependent visas

Application Materials

Application materials vary depending on the immigration category being applied for and on the specifics of the case. We will advise you in detail regarding your specific case; however, general application materials for the Temporary Work (Skilled) visa (Subclass 457) are noted below.

  • A variety of personal and corporate documents will be needed to support the application.
  • Such documents may include: current resume (C.V.), birth and marriage certificates, health checks including X-rays, corporate financial reports, employment contracts, position descriptions and corporate registration certificates.
  • All documentation must be submitted in English.
  • We can assist with translation requirements.

Business Visitors

  • Name of visa granted: Temporary Work (Short Stay Activity) Visa (Subclass 400), Visitor Visa (Subclass 600), Electronic Travel Authority (ETA) (Subclass 601) or eVisitor Visa (Subclass 651)
  • Duration of stay: Up to ninety (90) days, or at the discretion of Consulate issuing visa
  • General activities permitted: Varies from visa type to visa type. Please contact your Emigra Worldwide representative for additional information on the most appropriate visa for proposed visa.

Change of Status

It is possible for some applicants to convert from visitor to employment status post-arrival, but this is reliant on the specific visa held by the applicant at the time and their immigration history.

Salary and Payroll

Salary and payroll requirements vary depending on the immigration category and on the specifics of the case. Australia implemented Market Salary Rates in September 2009, meaning that foreign national employees must be paid the going domestic rate for their role. In addition, the salary must be above a certain threshold for the employees to qualify for a visa. Please contact your representative for more details for your specific situation.

Qualifications

Qualification requirements will vary from case to case and will depend on the immigration category under which the application is made and the type of role to be undertaken. However, in general, the immigration authorities do expect to see a university level education. In some situations, a strong case may be made for applicants without a degree provided their level of experience and industry specific qualification is high. Please contact your representative for more details.

Red Flags

In our experience, the following points are important to note at the start of the process. If any of the below situations apply to you, contact your representative immediately for further detailed advice.

  • Absence of degree
  • Absence of relevant experience
  • Insufficient compensation
  • The Department of Immigration will also look at the Employer’s previous training record and ratio of foreign to local workers
  • Health condition or criminal history

Penalties for Non-Compliance

The government of Australia takes immigration non-compliance very seriously. Penalties for non-compliance may includes fines, deportation, and imprisonment.

Employee Penalties:

The Department of Immigration and Citizenship requires visa holders to comply with their visa conditions. Actions against those who seriously breach requirements can lead to possible visa cancellation, removal from Australia, and re-entry bans of up to three (3) years.

Employer Penalties:

Since 2007, it has been criminal offence to employ a non-citizen who is not allowed to work in Australia. These offences apply to employers, labor hire companies, employment agencies, and anyone who allows illegal workers to work, or refer illegal workers for work.

On June 1, 2013, new laws introduced civil penalties and infringement notices for businesses that allow illegal work. The law also broadens who can be held liable and provides new evidence gathering powers. Criminal penalties remain.

The new penalties apply where a person allows or refers:

  • An unlawful non-citizen to work
  • A lawful non-citizen to work in breach of a visa condition that limits or restricts work
 

Maximum Penalties for Employees and Employers

 

Illegal Worker Warning Notice

                   

Administrative Warning

 

Infringement

 

$3,240 fine for individuals                                            $16,200 fine for bodies corporate

 

Civil penalty

 

$16,200 fine for individuals                                       $81,000 fine for bodies corporate

 

Criminal offence

 

$21,600 fine and/or two years imprisonment for individuals                                                             $108,000 fine for bodies corporate

 

Aggravated criminal offence

 

$54000 fine and/or five (5) years imprisonment for individuals                                                             $270,000 fine for bodies corporate

 

Note: All penalties are per illegal worker. An example of an individual would be a sole trader; a body corporate would be a company.

For more details, please contact your representative.

Bilateral Agreements

Since 1973, the Trans-Tasman Travel Arrangement has allowed Australian and New Zealand citizens to live and work in each other’s country without restrictions. On arrival in Australia, most New Zealanders are automatically granted a Special Category Visa (SCV), subject to meeting health and character requirements. This visa allows the holder to remain and work in Australia indefinitely.

Australia also has Working Holiday Visa arrangements, as well as Work and Holiday Visa arrangements, with many countries. These visas allow holders of eligible passports who also meet all other criteria to work in Australia for periods of up to a year, with a limitation of not working more than six (6) months for a single employer. In some instances, the limitation may be three (3) months. The criteria includes that the applicant be under thirty-one (31).