Here is a single page summary of the Australian Department of Immigration's (DIAC) guidelines relating to work visas also known as 457 visas or work permits.
Temporary Business (Long Stay) visa (Subclass 457 "work permit")
The 457 visa program is the most commonly used visa program for employers to sponsor overseas workers. The 457 visa allows foreign workers to work in Australia on a temporary basis. There are also special arrangements for employers in regional areas across Australia. Regional employers get certain concessions when employing foreign workers as part of the 457 visa program.
Employers under the 457 visa program can be either:
- Australian businesses employing foreign staff to work in Australia
- Overseas businesses employing foreign staff to work in their Australian operations.
Who is this 457 visa program targetted at?
This 457 visa is for employers who would like to employ overseas workers to fill nominated skilled positions in Australia.
How much will this 457 visa cost?
The application fees payable to the Immigration Department (DIAC) for a 457 visa are approximately $250. Professional Fees typically range from $1500 to $3000 depending on skills and experience of your adviser and the complexity of your case and these should be confirmed at the time of preparing for any 457 visa application. PLease note that additional fees apply if the sponsoring employer is not already approved to be able to sponsor foreign workers.
What does this 457 visa let foreign workers do?
With this 457 visa, overseas workers can be employed for a period of between three (3) months and four (4) years.
With this 457 visa those people who are employed from overseas can:
- work in Australia for a period of between three (3) months and four (4) years
- bring any eligible secondary applicants with them to Australia – secondary applicants can work and study
- after entering Australia, have no limit on the number of times they travel in and out of Australia.
For this 457 visa employers will need to be approved as an eligible employer. The 457 visa program also has a requirment for:
- an eligible nominated position
- an eligible 457 employee.
Basic Criteria
The employer of a 457 visa applicant will need to:
- apply to be a sponsor to recruit and employ overseas workers
- nominate the positions to be filled
- recruit the overseas workers to fill the nominated position(s)
- act as a sponsor for employees applying for a 457 visa
- cooperate with DIAC's monitoring requirements
- meet costs and other obligations as part of the 457 visa program
Employees seeking to be granted a 457 visa will need to:
- accept the relevant offer of employment from their sponsoring employer
- apply for a 457 visa
- meets all conditions applicable to the 457 visa grant
Regional employer concessions are available under the 457 visa porgram.
Employers in a regional area in Australia may be eligible for concessions in meeting the minimum salary and skill level requirements for nominated positions.
Validity periods applicable to the 457 visa program
The validity period of the:
- 457 visa sponsorship is 2 years
- 457 visa nomination is 12 months
- 457 visa is between 3 months and 4 years.
Renewing a 457 visa
For employees who wish to renew their visa or change employers, the employee must lodge a new 457 visa application. The new employer must also lodge a new 457 sponsorship and/or 457 nomination if a valid 457 sponsorship or 457 nomination does not already exist.
Medicare levy exemption under the 457 visa program
The Medicare Levy is a tax paid through the personal tax system in Australia. Many 457 visa applicants granted subclass 457 temporary residence visas may be subject to the Medicare Levy. The Medicare Levy is based on the taxable income of the 457 visa holder for each income tax year.
If the 457 visa applicant is from a country that has no reciprocal health care arrangements with Australia, the 457 visa applicant and any dependents, who have not been entitled to Medicare benefits can seek an exemption from the Medicare levy at the end of financial year income tax return.
If the 457 visa applicant is from a country with reciprocal health care arrangements with Australia, Medicare assistance may be available for immediately necessary treatment.
Eligibility under the 457 visa porgram
Here is an outline the requirements that must be met by all parties participating in this 457 visa program.
- 457 Employer
- 457 Employee
- 457 Nomination
- 457 Secondary applicant
Employer Eligibility under the 457 visa program
An employer needs to be approved as a sponsor in order to employ skilled workers from overseas. The following requirements must be met for an employer to become a sponsor.
Lawfully and actively operating business
The employer must be lawfully operating a business that is actually and actively engaged in business activities.
Direct employer of the employee
The sponsor must be the direct employer of the employee. The direct employer is usually responsible for such things as:
- payment of salaries
- PAYG tax instalments
- superannuation
- conditions of employment
- day-to-day supervision of the employee.
Good business immigration record
To meet this requirement:
- there must be nothing adverse known about the business
- if the employer has previously sponsored employees to Australia, they must have a satisfactory record of complying with immigration laws
- the activities of the business must not be illegal in Australia.
Benefit to Australia
The employment of skilled workers from overseas must benefit Australia. This could be demonstrated if the 457/SBS employment will:
- provide employment for Australian citizens or Australian permanent residents
- expand Australian trade in goods or services
- improve business links with international markets
- improve competitiveness within the sectors of the Australian economy
Advance skills of existing workforce
The 457 employer must also demonstrate that their Australian business operations will meet one of the following requirements:
- introduce, use or create new business skills
- introduce, use or create new or improved technology
- have a satisfactory record of, or a demonstrated commitment towards training Australian citizens and Australian permanent residents.
Overseas business sponsors
Employers with a business that has no formal operating base or representation in Australia, may apply to bring employees to Australia to do one of the following:
- establish a branch or other business activity such as joint ventures, agency distributorships or subsidiary branches in Australia
- fulfil obligations for a contract or other business activity in Australia.
Under th 457 visa program, Overseas Business Sponsors do not need to be operating in Australia but must meet all other employer eligibility requirements.
Regional employer concessions under the 457 visa program
As mentioned ablove, employers in a regional area in Australia may be eligible for concessions in meeting the minimum salary and skill level requirements for your nominated positions.
Employee Eligibility
As a 457 employee, 457 applicants must meet all of the following requirements:
- be sponsored by an employer to fill a nominated position
- have skills, qualifications, experience and an employment background which match those required for the position
- be eligible for any relevant licences or registration required for the nominated position
- demonstrate that you are to be paid at least the minimum salary level that applies at the time a decision is made on your visa.
Health requirements
There are a number of health requirements that must be met by all 457 visa applicants.
Character requirements
457 visa applicants must all meet all character requirements.
Limitation of applications by prospective applicants
Applicants who are in Australia may have restrictions on their current visa which will prevent them from applying for this 457 visa.
Nomination Eligibility
As an 457 employer, employers must lodge a nomination application. The nomination application must provide details of the vacant position and the skills and experience required by the employee who will fill the position.
457 Employer requirements
To nominate a 457 position, 457 employers must:
- have been approved as a business sponsor
or
- have already lodged an application to become an approved business sponsor
or
- lodge an application to become a 457 business sponsor at the same time that they lodge the 457 nomination application.
Position requirements under the 457 visa program
A 457 nominated position must:
- be full-time
- meet all relevant Australian laws and award conditions
- meet the minimum skills level
- meet the minimum salary level
Minimum skill level under the 457 visa program
There is a list of approved occupations that meet the minimum skill level requirement for this visa. applicants will check this list to ensure that the nominated position matches one of the occupations on the list.
Minimum salary level under the 457 visa porgram
Minimum salary levels for 457 visa applciants must be met and will change each year. The minimum gross annual salary, based on a 38 hour week, is currently $59,480 for the following occupations:
- 1224-11 Information Technology Manager
- 2231-11 Systems Manager
- 2231-13 Systems Designer
- 2231-15 Software Designer
- 2231-17 Applications and Analyst Programmer
- 2231-19 Systems Programmer
- 2231-21 Computer Systems Auditor
- 2231-79 Computing Professionals (not elsewhere classified)
The minimum gross annual salary, based on a 38 hour week, is currently $43,440 for all other gazetted occupations. In regional areas, the MSL is $39,100 and $53,530 nfor ICT professionals.
Salary Level or Salary Package Definition
These 457 salaries must not include:
- accommodation or rental assistance, board, upkeep, meals or entertainment
- incentives, bonuses or commissions
- shares or bonus shares
- travel, holidays, health care/insurance
- vehicles or vehicle allowances
- communications packages
- Living-Away-from-Home-Allowance
- superannuation contributions (either voluntary employee or compulsory employer contributions)
- any other non-salary benefits not included in the above, with the exception of Medicare benefits received as a fee for service by medical practitioners.
Regional employer concessions
If you are an employer in a regional area in Australia you may be eligible for concessions in meeting the 457 minimum salary and skill level requirements for your nominated position.
Secondary Applicant Eligibility
As a sponsored 457 employee, the following people may apply to accompany and stay with you in Australia:
- your spouse
- your interdependent partner
- a dependent child of you, your spouse or your interdependent partner
- other dependent relatives of you or your spouse.
Spouses of 457 visa applcants
A spouse is the person that you live with as husband or wife. This relationship may be a legal marriage or a de facto/common law relationship which involves members of the opposite sex.
Interdependent partners of 457 visa applicants
An interdependent partner is a same sex partner where you have a mutual commitment to a shared life together to the exclusion of all others. This relationship must be genuine and continuing.
Dependent child of 457 visa applicant
A dependent child is the natural, adopted, or step-child, of you, your spouse or your interdependent partner. You, your spouse or your interdependent partner must have legal responsibility for the child. The child must:
- not be married, engaged to be married or in a de facto relationship
- be under 18 unless they are a full-time student, or incapacitated for work.
Other dependent relatives of 457 visa applicants
Other relatives of 457 visa applicants or their spouses may be considered in the application if they meet all of the following:
- they have no other relative able to care for them in their own country and they either:
- have never been married
- are widowed
- are divorced
- are separated
- they are usually resident in the 457 visa applicant's household
- they rely on the 457 visa applicant for financial support for their basic needs
- the 457 visa applicant has supported them for a substantial period
- they rely on the 457 visa applicant more than any other person or source
457 Visa applicants must provide details of all children or other dependent relatives aged 18 years or over, regardless of whether or not they are included in the 457 visa application.
For all dependent relatives 18 years of age or over, Form 47A must be completed and attached to the 457 visa application.
Health requirements for 457 visa secondary applicants
All secondary 457 applicants must meet the health requirements for 457 applications generally.
All secondary 457 applicants must meet character requirements.
Work and study
Any secondary 457 applicants granted this 457 visa are given full work and study rights.
Employer Obligations under the 457 visa program
There are a number of obligations that 457 employers must be willing and able to meet. These obligations apply to SBS and 457 applications lodged on or after 1 July 2004.
The department (DIAC) must be satisfied that the 457 employer is able to meet these sponsorship obligations for both the 457 employee and their accompanying family members.
457 Employers must be responsible for certain costs: ie
- ensure that the cost of return travel for a 457 employee (and accompanying family member) is met to return them to their home country
- pay all medical or hospital expenses for any 457 employee (and accompanying family member) for treatment in a public hospital (other than expenses that are met by health insurance or reciprocal health care arrangements) - this undertaking continues until all expenses are paid
- repay the Australian Government for money it spends as a result of the 457 employee's stay in Australia - these costs may include those relating to locating and detaining the 457 employee (and accompanying family member) if they become unlawful, removing them from Australia and processing any application that they make for a protection visa - this undertaking also continues until all costs are paid.
457 employers must comply with immigration laws: ie
- comply with responsibilities under Australian immigration laws
- not employ a person who would be breaking Australian immigration laws by being employed
- ensure that the 457 employee is paid at least the minimum 457 salary level that applies at the time the decision is made on their visa.
457 Employers must cooperate with the department
- notify DIAC within 5 working days after a sponsored 457 employee ceases to work for the sponsoring employer
- notify DIAC of:
- any change in circumstances that may affect the 457 employer's capacity to honour its sponsorship undertakings
or
- any change to the information that contributed to the 457 employer's ability to be approved as a 457 sponsor or the approval of a 457 nomination
- cooperate with the DIAC'smonitoring of the business or of any sponsored employees. This undertaking continues until the earlier of the following.
- o when the 457 employee leaves Australia and their visa ceases, or when the 457 employee is granted another substantive visa
- o when the sponsoring 457 employer ceases to be an approved sponsor of the 457 employee.
457 Employers must comply with the terms of the nomination
- notify DIAC of any change in the employee's work location (if the approval of the nomination is granted on the condition that the employee must be working in a particular location).
457 Employers must comply with workplace relations laws
- comply with all relevant laws relating to workplace relations and any workplace agreements that have been put in place for the 457 employee
- ensure that the 457 employee holds any licence, registration or membership that is mandatory for the performance of their work
- make superannuation contributions required for employees while they are employed by the business
- deduct tax instalments and make payments of tax for the 457 employee while they are employed by the business.
Results of non-compliance
Penalties may be sanctioned if the business does not comply with these 457 obligations.
457 Employee Obligations
The employee must notify DIAC of any change in their circumstances.
If the 457 sponsor ceases the 457 employee's employment, the employee must do one of the following:
- find another 457 employer who is willing to sponsor them and apply for another 457 visa;
or
- apply for another type of substantive visa;
or
- leave Australia within 28 days.
Visa conditions that may attach to the 457 visa
If the 457 visa application for a temporary 457 visa is approved, the following work condition will be applied to the 457 employee.
The 457 employee must not:
- stop working for the employer who sponsored them (that is, become unemployed or change employer)
- work in a different position other than the position that was nominated in the visa application
- work for another person or for themselves while working for the 457 sponsor.
If an 457 employee wishes to change employer, a new 457 sponsorship and 457 visa application will be required.
Conditions attached to regional concessions to the 457 visa grant
If the 457 visa was granted for a position which has been certified by a Regional Certifying Body, the 457 employee must remain in regional Australia. If the 457 employee is found to be living or working in a non-regional location then their visa may be cancelled.
3-step application process
Step 1 - 457 Employer Applies to be a Sponsor
The 457 employer must complete an application to become a sponsor.
Step 2 - 457 Employer Nominates a Position
The 457 employer must nominate the position to be filled.
Step 3 - Employee Applies for a Visa
The 457 employee must apply for a visa to be allowed to work in Australia.
457 Employer Obligations from August 2007
It ias an offence under the Migration Act 1958 for a person to knowingly or recklessly allow an illegal worker to work or refer an illegal worker for work with another business.
For more information call MyVisa now on 1300 55 8472.
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| Practice Director
Australian Immigration Law
Nilesh Nandan
BBus LLB(QUT) GDLP (QUT)
MBA(IntBus) MARN 0104983
Practice Director
New Zealand Immigration Law
Kamil Lakshman
BA DipCM MBA LLB
Special Counsel
Christopher Levingston
Accredited Specialist in
Immigration Law
Special Counsel
David
Prince
Accredited Specialist in
Immigration Law
Specialising in Visa Lodgements at the Australian Department of Immigration (DIAC) including:
457 Long Stay Visa (Work Visa)
856 ENS Permanent Residence Visa
857 RSMS Permanent Residence Visa
801 Spouse Permanent Residence Visa
820 Provisional Spouse Visa
826 Provisional Interdependent Visa
(Same Sex Visa Applications)
175 Skilled Independant Visa
176 Skilled Sponsored Visa
MRT Appeal Advice
MRT Appeal Lodgement
MRT Appeal Management |
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