Employer-sponsored immigration in Australia

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Employer sponsorship

i Work permits

The policy underlying Australia's skilled migration programme is to 'maximise lifetime earnings – and therefore the maximum contribution to productivity growth and fiscal impact'. Work permits in Australia are most frequently granted under employer-sponsored visas. The Temporary Work (Skilled) visa (subclass 457), Temporary Skill Shortage (subclass 482) visa and the ENS visa (subclass 186) are the two most common options for business wishing to sponsor an overseas worker.

Subclass 482 (TSS) visa programme

This temporary visa allows Australian companies to nominate foreign workers in skilled occupations for up to two or four years, depending whether the nominated occupation falls on the STSOL or the MTLSSL. The nominated occupation must be STSOL or the MLTSSL with the occupation lists reviewed and updated on a six- to 12-monthly basis. Nevertheless, it should be noted that STSOL and MTLSSL can be changed at any given time by issuing a new legislative instrument. The application process for the TSS involves three stages.

Sponsorship

The employing business first needs to be approved as a standard business sponsor. As a prerequisite, the business must be operating lawfully and not have any adverse information recorded against it. All business sponsors (including start-ups companies and sponsors that are provided with accredited status) are now provided with a five-year SBS approval period.

Nomination

The second stage involves the employer nominating a proposed visa applicant in an occupation listed on either the STSOL or MLTSSL. Sponsoring businesses must provide evidence that the sponsored applicant is subject to terms and conditions of employment no less favourable than those of Australian workers in the same occupation in the same location, and evidence that the salary offered is at market rate. All employers (regardless of the nominated occupation), must also satisfy the requirements of LMT unless an international obligation applies and show existence of genuine skill needs that could not be sourced from the local labour market.

Visa

When applying for the visa, there are key criteria that must be met by the applicant:

1. skill: the applicant must show they have the requisite skill for the nominated occupation. In certain circumstances, especially in relation to trade occupations, applicants may be required to show a positive skills assessment from the relevant skill assessment body;
2. work experience: with the introduction of the TSS visa, all applicants must demonstrate at least two years of work experience relevant to the particular occupation;
3. English-language requirement: the primary applicant must meet the English requirement unless exempt;
4. registration or licensing: for certain occupations, while a skills assessment may not be required, registration is needed to practise or work in that occupation. TSS visa holders must obtain any mandatory registration, licence or membership within 90 days of the visa grant. Often to qualify for registration in that occupation, the applicant may need to show proficiency in English; and
5. character: the applicant must provide police clearance certificates for any country resided in for at least 12 months in the last 10 years.

ENS visa (subclass 186)

The permanent employer sponsored programme is a residence visa scheme for skilled workers who are sponsored by an Australian business, and can be applied for either onshore or offshore. The subclass 186 visa allows skilled applicants to work under one of three streams; the Temporary Residency Transition stream, the Direct Entry stream and the Labour Agreement stream.

The following changes were made to the ENS requirements in 2018:

1. the English-language requirement was raised;
2. the age requirement was lowered to 45 years of age;
3. applicants must now be paid in accordance with Australian market salary rate and meet the temporary skilled migration income threshold;
4. the ENS programme was limited to occupations on the MLTSSL only; and
5. the stricter regulation of sponsors was introduced to ensure their obligations under the Migration Regulations 1994 are met.

Temporary Residence Transition stream

The Temporary Residence Transition (TRT) stream is geared towards applicants who have been on a subclass 482 or 457 visa and who intend to be sponsored by the same employer under the subclass 186 visa. To be eligible, applicants must have worked full time on a 482 visa for at least three of the four years prior to the 186 nomination application. If the applicant held (or had applied for and were later granted) a 457 visa on 18 April 2018, they must have worked full time on the 457 visa for at least two of the three years prior to nomination.

Applicants must also meet the following requirements or meet an exemption:

1. applicants' nominated occupation must be on the MLTSSL or STSOL;
2. applicants must be less than 45 years of age; and
3. applicants must have a competent level of English.

Direct Entry stream

The Direct Entry stream is designed for applicants who are currently not on the subclass 482 (or 457) visa or who have never worked (or only worked briefly) in Australia.

Applicants must meet the following requirements or exemptions:

1. the applicant must be less than 45 years of age;
2. the applicant must have at least a competent level of English;
3. the applicant must have at least three years of experience relevant to the particular occupation; and
4. the applicant is required to have a positive skills assessment from a relevant skills assessment body.

Labour Agreement stream

The Labour Agreement stream is for applicants sponsored by an employer under a labour agreement or regional migration agreement. Applicants in this stream must meet the following requirements:

1. applicants must be less than 45 years of age;
2. applicants must have the qualifications and skills stipulated in the labour agreement; and
3. applicants must satisfy the English language requirement stipulated in the labour agreement.

Subclass 186 application

A subclass 186 application comprises the following two stages: ENS approval and then the visa application. Both stages must be completed under the same stream:

ENS approval

All employers must first be approved as a sponsor under the ENS programme. The following criteria must be fulfilled.

1. the employer's business is actively and lawfully operating in Australia;
2. the nominated position is available for the nominee for at least two years full time and this is renewable;
3. in the terms and conditions of employment, the nominee's conditions are the same as those that would apply to an Australian citizen or an Australian permanent resident in a comparable position;
4. there is no adverse information relating to the employer that is known to the Department of Immigration and Border Protection; and
5. the employer has compiled with relevant workplace laws.

'Exceptional circumstances' waivers are no longer available in relation to the ENS and the previous discretionary exemptions relating to age, skills and English language requirements for permanent business migration were repealed on 1 July 2012 in favour of stricter rules and again in 2017; therefore, the only categories of exemption currently available for the ENS programme are as follows.

Age

Age exemptions are available to applicants who:

1. are nominated as an academic by an Australian university or a researcher by an Australian government agency;
2. have been working for their sponsor as the holder of a subclass 457 visa for at least four years and whose earnings have been at least equivalent to the Fair Work Australia high-income threshold for each year over that period;
3. are nominated as a medical practitioner (ANZSCO Minor Group 253) after working for their nominating employer for at least four years as a subclass 547 or 422 visa holder and two of those years were located in regional Australia; or
4. are applying through the TRT stream and are under 50 years of age and their 482 visa was lodged before 18 April 2017.

Skills and qualifications

Skill exemptions apply only to the Direct Entry stream and require that an applicant:

1. be nominated as an academic by an Australian university or a researcher by an Australian government agency;
2. have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate; or
3. have been working for their sponsor as the holder of a subclass 444 or 461 visa in their nominated occupation for the past two years.

English language

To be exempted from the English-language requirement, an applicant must:

1. have nominated earnings at least equivalent to the current Australian Taxation Office top individual income tax rate; or
2. be applying through the TRT stream and have completed at least five years of full-time study in a secondary or high education institution where instruction was delivered in English.

Primary applicants exempted from the English language requirement are still required to pay the second instalment of the visa application charge, which currently stands at A$9,800.

Dependants

Dependants of a primary visa applicant may be included in a subclass 186 visa application. In November 2016, the definition of 'members of the family unit' (MoFU) was simplified and is now limited to any of the following individuals who share a specific relationship with the main applicant:

1. a partner, which includes any spouse or de facto partner; and
2. a child or stepchild of the main applicant or the main applicant's partner who is under the age of 18; or is under the age of 23 and is dependent on the main applicant or the main applicant's partner; or has turned 23 but is dependent on the main applicant or the main applicant's partner as defined in the Migration Regulations 1994.

Transitional arrangements have been put in place for applicants who held a listed visa subclass prior to the November 2016 changes, to allow them to apply for a new visa with the rest of their family unit, even if they no longer qualify under the MoFU definition; for example, if they are now over the age of 23.

Subclass 187 visa application

The applicant for a subclass 187 visa needs to be under 45 years of age, meet the skills, qualifications and English-language requirements (unless exempt), and be nominated by an approved Australian employer. The current requirements regarding age, skill and English language are set out as follows:

1. Age: an applicant must be less than 45 years of age at the time of lodgement unless exempt. This maximum age requirement was decreased from 50 to 45 years of age on 1 July 2017. A maximum age requirement of 50 at the time of application will continue to apply for TRT stream applicants who held (or had applied for and were late granted) a subclass 457 visa on 18 April 2017.
2. Skills and work: for the Direct Entry stream, applicants must show a positive skills assessment in addition to three years of full-time post-qualification work experience. Skills assessments obtained for temporary graduate visa applications are not accepted as they are not considered full skills assessments for permanent skilled migration purposes. This does not affect any ENS and RSMS applications lodged prior to the effect of this change on 28 October 2013. For the TRT stream, applicants must show that they worked for the sponsoring company as a holder of a subclass 457 or 482 visa and that they have applied their skills in their nominated occupation for at least three years.
3. English language: for the Direct Entry stream, applicants must have competent English 'unless exempt'. This is defined as achieving a test result of at least six in each of the four test components in the International English Language Testing Systems (IELTS) examination, at least a 'B' in each of the four test components of an occupational English test, a score of at least 50 in each test component of the Pearson Test of English Academic, a score of at least 169 in the 'Cambridge English: Advanced' test, or prescribed results for each of the four test components of the Test of English as a Foreign Language Internet-Based Test.

From 1 July 2017, the English language requirement for all streams has been raised to competent English, which requires a score of at least six in each of the four test components in the IELTS examination or equivalent. Exemptions to the above requirements are only available in limited circumstances.

Labour market regulation

Australia has implemented strict labour market regulations, which must be adhered to by both visa applicants and businesses. In particular, considerable attention has been paid to reducing the likelihood of foreign worker exploitation. To successfully sponsor a foreign worker, employers must ensure that they pay their nominees a salary comparable to that of an Australian citizen or an Australian permanent resident in a similar position.

Obligations of sponsors

Under the subclass 482 visa programme, an approved business sponsor is immediately subject to sponsorship obligations. The standard business sponsor must ensure that the terms and conditions of employment provided to the 482 visa holder are no less favourable than those provided to Australian citizens or permanent residents performing equivalent work in the same workplace. Furthermore, the sponsor is legally restricted from recovering certain costs associated with the sponsorship, nomination and recruitment of the foreign worker from the visa holder. The nature and duration of the obligations are as follows:

Employer obligation	Duration of obligation
Obligation to cooperate with inspectors	Starts at approval of sponsorship and ceases five years after sponsorship ceases
Obligation to ensure equivalent terms and conditions of employment	Starts at approval of nomination or visa grant until employment ceases or grant of new substantive visa
Obligation to pay travel costs to enable sponsored persons to leave Australia	Starts at approval of nomination or visa grant until new nomination approved or grant of new substantive visa or leaving Australia
Obligation to pay costs incurred by the Commonwealth to located and remove unlawful non-citizen	Starts when sponsored person becomes unlawful non-citizen until five years after sponsored person leaves Australia
Obligation to keep records	Starts at approval of sponsorship until two years after last sponsored person ceases with the sponsor
Obligation to provide records and information to the Minister	Starts at approval of sponsorship until two years after last sponsored person
Obligation to provide information to Immigration when certain events occur	Starts at approval of sponsorship until sponsorship ceases and employer no longer sponsors the visa holder
Obligation to secure an offer of a reasonable standard of accommodation	Relevant for subclass 401, 402, 408, 416 and 420 visas only. Sponsor obligations can be found in Migration Regulations 1994
Obligation to ensure skilled worker does not work in an occupation other than an approved occupation.	Starts at approval of nomination or visa grant until new nomination approved or grant of new substantive visa or leaving Australia
Obligation to provide training	Starts at approval of sponsorship. If the period of standard business sponsorship is less than six years, the obligation ceases after three years. If the period of standard business sponsorship is at least six years, the obligation ceases after six years
Obligation not to engage in discriminatory recruitment practices	Starts at approval of sponsorship until approved sponsorship ceased and no sponsored persons in relation to the sponsor

Sanctions may be imposed in a number of circumstances, including but not limited to the following:

1. the business sponsor provides false or misleading information;
2. the business sponsor fails to meet or no longer meets the sponsoring criteria;
3. the business sponsor or the primary sponsored person contravenes the law of the Commonwealth, state or territory;
4. the business sponsor fails to comply with the terms of a special programme agreement, or makes unapproved changes to the programme;
5. the business sponsor fails to pay additional security as requested by an authorised office; and
6. the business sponsor fails to pay medial and hospital expenses for the primary sponsored person.

As part of the new reforms to the permanent employer sponsored skilled migration programme the Department of Immigration and Border Protection will commence publishing details relating to sponsors who are sanctioned for failing to meet their obligations under the Migration Regulation 1994 and related legislation. Administrative sanctions may result in the sponsorship being cancelled, or the business sponsor being barred from nominating candidates and from making further applications for approval as a sponsor for a specified period. A decision to bar a business sponsor from sponsoring for a certain time can be reviewed at the AAT. In certain circumstances, there may be grounds for the business sponsor to apply for the bar to be waived. If the application to the AAT is unsuccessful, the applicant may make a request to the Minister to waive the bar under Section 140O of the Migration Act. The Ministers' delegate will assess this request against the following prescribed criteria:

1. whether Australia's interests would be significantly affected if the bar were not waived;
2. whether a substantial trade opportunity would be lost if the bar were not waived;
3. whether there would be a significant detriment to the Australian community if the bar were not waived;
4. whether the person's inability to be a sponsor would significantly damage Australia's relations with the governance of another country; and
5. if a delegate has previously refused to waive the bar, whether the current delegate is satisfied that the circumstances in which the previous delegate took the criteria above into account have changed substantially.

With the enactment of the Migration Amendment (Reform of Employment Sanctions) Act 2013, Australia's system regarding employer sanctions is now organised according to three tiers of offences, reflecting the graduation of consequences faced by the employer based on the seriousness of the offence:

1. non-fault civil penalty provisions: fault elements of knowledge and recklessness do not apply and evidence does not need to be proven 'beyond reasonable doubt';
2. non-aggravated offences (baseline offences): physical and fault elements (knowledge or recklessness) must be established beyond reasonable doubt. These offences are punishable by up to two years' imprisonment; and
3. aggravated criminal offences: occur where there is exploitation of the foreign national worker. Such offences correlate with their non-aggravated counterparts and are punishable by up to five years' imprisonment.

Statutory defences are available for both non-aggravated criminal offences and for civil penalty provisions. The defendant bears the burden of proof to show that they took reasonable steps at reasonable times to either verify that the foreign national worker was not an unlawful non-citizen or verify by checking a government computer system that the foreign national worker was not in breach of the work-related visa.

Rights and duties of sponsored employees

The primary 482 visa holder must be paid market salary rates by the sponsor and the market salary must be equal of greater than the temporary skilled migration income threshold (TSMIT), which at present is A$53,900. The TSMIT has a dual purpose: first to act as an indicator that an occupation is skilled and, second, to ensure that a visa holder has reasonable means of support while in Australia. The TSMIT will apply if the market rate of a particular occupation is below this threshold. The TSMIT is indexed in accordance with average weekly incomes.

Subclass 482 visa holders may be subject to various visa conditions, including condition 8170, which obliges the visa holder to work with the sponsoring company in the nominated occupation, and condition 8501, which makes all new 482 visa holders responsible for healthcare costs for themselves and their respective families. Breach of these conditions may result in cancellation of the visa.