The Temporary Work (subclass 457) visa is one of the most commonly applied for visa programs for overseas skilled workers to obtain employment in Australia. To be eligible for this subclass, skilled workers must be sponsored by an employer to fill a nominated position.
In order to satisfy the criteria of filling a nominated position, the Department of Immigration and Border Protection (DIBP) must be satisfied that the position associated with the nominated occupation is ‘genuine’. This is an important criterion of this particular subclass as it ensures that the 457 program is used to address temporary skill shortages for specific occupations, and not to secure a migration outcome.
One common way of securing sponsorship in a nominated position is self-sponsorship, whereby a skilled worker either purchases an existing business in Australia or creates their own and sponsors themselves, however this application method is now becoming increasingly difficult.
We are now beginning to see the flow-on effects from amendments to the policy for 457 visas that came into effect in December 2015. The changes are in relation to the ‘genuine position’ requirement. It provides that an application can be refused if the DIBP finds that the position was created solely to secure a migration outcome. Where an applicant is self-sponsored, it raises the question of whether the position is genuine.
In looking at whether a position is genuine, the DIBP looks at the following ‘risk factors’:
- visa applicant is a director or owner of the sponsoring business;
- visa applicant is a relative or personal associate of an officer of the sponsoring business;
- business has been in existence for a very short period of time (e.g. business was created in the last 3 – 6 months);
- proposed salary is significantly lower or higher than industry standards;
- business has a relatively small business turnover that could indicate that at the nominated salary 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; and
- The nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa.
While the policy changes make it more difficult for overseas skilled workers to use the self-sponsorship avenue as a way to gain employment in Australia, the changes relate to policy only. Accordingly, there is no complete blanket rule that precludes overseas skilled workers from sponsoring themselves. However, it is recommended that any potential applicants seek legal assistance prior to considering self-sponsorship for a 457 visa to minimise the potential risks associated with the self-sponsorship option.