What is a Temporary Work (Skilled) subclass 457 visa?

The subclass 457 visa program is designed to meet short-term demand for skilled workers in Australia.  For many expatriate employees and their families, a Temporary Work (Skilled) subclass 457 visa is their initial mode of entry to Australia, whereas others may have transitioned to the 457 visa whilst in Australia on a working holiday, or after finishing tertiary studies or occupational traineeships.

Following the amalgamation of the immigration department (DIBP) with customs in July 2015, there has been a marked increase in ‘integrity measures’ that have resulted in delays and frustrated some 457 visa applicants and sponsors in certain industry sectors. The programme is frequently referenced in political circles, but controversies aside, it remains one of the most important mechanisms for Australian businesses to fill skills shortages in the Australian labour market.

A 457 visa can be approved for a period of anywhere between 1 day and 4 years, and a primary applicant can be accompanied by their spouse, and/or dependents during this time.

Who can apply?

Simply stated, suitably skilled expatriates who are offered a role with an approved sponsor in a highly-skilled, ‘sponsorable’ occupation can apply for a 457 visa. Of course, a range of other criteria apply throughout the sponsorship, nomination and visa application stages, not least of all meeting the health and character requirements.

If you hold a Working Holiday (417), or Work and Holiday (462) visa (collectively ‘WHV’) and have been considering transitioning to a sponsored 457 work visa, it is crucial to understand the criteria, rights, and obligations that apply to this visa category.  In years gone by, you could be excused for thinking that obtaining a 457 was a quick, logical and linear way for working holidaymakers to extend their stay in Australia whilst embarking on a brand new career.  However, current policy makes it markedly more difficult for the following people to obtain a subclass 457 visa:

• Applicants who have a generalist qualification and little or no relevant work experience
• Applicants who have no formal qualifications and patchy or marginal work experience
• WHV holders already working for the sponsoring employer (this can lead the DIBP to presume there is an arrangement for a migration outcome)
• Applicants who are offered a role that has been newly created in the sponsor’s business
• Applicants offered hospitality, sales, admin, and marketing roles
• Applicants offered a salary at – or close to – the minimum market salary threshold (currently $53,900)
• 457 Visa holders who have left a previous employer and have delayed seeking a new sponsor.

Eligible candidates who wish to apply may have a 2-3 month wait before visa grant given the documentary requirements over each step in the process.  During this period, some applicants may have work-rights or bridging visa issues that need to be managed. Once the visa is approved, there are a variety of benefits, rights and obligations to take stock of.

Benefits and rights:

• Longer term visa status (up to 4 years with unlimited renewals)
• Pathway to employer-nominated permanent residence (and thereafter Citizenship) if certain conditions are met
• No age limit
• Unrestricted work rights for secondary visa holders
• Access / continued access to Medicare under reciprocal healthcare arrangements (where not limited under the relevant bilateral treaty)
• Uniform protections under Australian industrial relations law

Obligations:

• Primary applicant can only work for the sponsor (or an associated entity of the sponsor)
• Must maintain health insurance (for non-RHCA countries)
• Primary applicant must only work in a role consistent with the nominated occupation
• Must obtain sponsor’s support to transition to employer-nominated permanent residence

Knowing your Sponsor

A ‘standard business sponsor’ is required to comply with a set of 11 immigration-specific legal obligations, and can have substantial recurring compliance costs.  As such, positioning yourself as the preferred candidate can be tough without stand-out skills, and a strong support network, particularly in a liquid labour market as the programme is geared to favour local recruitment practices.  Understanding where the skills shortages are (e.g. by sector or region), and being aware of what a sponsor can and can’t do, can help you to negotiate a favourable outcome, and map your future career in Australia.

For smaller businesses, the prospect of becoming a sponsor can be especially daunting, particularly if doing so for the sake of only one (albeit highly valued) employee.  It is important to put such employers in touch with qualified advice that might help to allay fears, minimise costs, and put processes in place to efficiently manage the ongoing obligations associated with sponsorship.

Getting Help

Whether an existing sponsor, prospective sponsor, or visa applicant, qualified advice is particularly important to assess and effectively manage WHV-related 457 cases.  Australian consumer law protects sponsors and applicants through a regulatory framework and Code of Conduct that makes it illegal in Australia to provide immigration assistance without being qualified, insured, and competent to practice as a Registered Migration Agent (RMA).

FCB Smart Visa is proud to be able to offer the above general advice.  To obtain specific advice relevant to your circumstances, speak to one of our registered agents or lawyers.