The 457 visa is the most popular employer sponsored work visa for overseas professionals and tradespeople to work in Australia. According to the latest Subclass 457 Quarterly Report for the period up to 30 September 2015, there were 14,370 subclass 457 visa applications lodged with the Department of Immigration and Border Protection (DIBP), out of which 13,240 applications were approved. This means that in the 1^st quarter of the 2015-16 subclass 457 visa programme year a total of 1,130 applications have already been rejected.

While there are various eligibility factors to consider from the employer, nominated position and visa applicant perspective, this article will focus on the application criteria of Labour Market Testing and Market Salary for the 457 Temporary Work Visa.

So what is Labour Market Testing?

Implemented in November 2013, the Labour Market Testing requirement tasks standard business sponsors to test the local labour market before hiring an overseas worker for nominated position.

The purpose of the Labour Market Testing is to ensure that available job opportunities are provided to the local workforce first before looking to sponsor an overseas individual to fill the role required.

What do you need to do to meet the Labour Market Testing Requirement?

Standard business sponsors need to record efforts and attempts to hire local Australian citizens or permanent residents. The recruitment activities need to be sufficient to justify that the local workforce cannot fulfil the requirements of the nominated position due to the lack of skills, qualifications or relevant work experience. Such recruitment efforts may include the posting of job advertisements, conducting interviews and tabulating the outcome of all applications for the advertised position.

Are there any exemptions to the Labour Market Testing requirement?

There are avenues for exemption from the Labour Market Testing. You can be exempt from Labour Market Testing for the following reasons:

Occupation Level

Occupations described by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as skill level 1 or 2

Skill level 1 occupations are occupations that require an Australia degree level qualification or at least five years relevant experience, which may substitute for the formal qualification.

Some examples of skill level 1 occupations include General Managers, Marketing and Advertising Managers, IT Managers, Farmers and Agricultural Managers, etc.

Skill level 2 occupations require an Australia Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience as a possible substitute for the formal qualification.

Some examples of skill level 2 occupations include ICT professionals such as Developer Programmers, Software Engineers, Business Professionals and Teachers.

However some skill level 1 and 2 occupations still require Labour Market Testing to be done. These occupations include positions in the engineering and nursing profession. You can refer to the list here. If you are nominating an occupation in these professions, you will need to provide evidence of Labour Market Testing.

International Trade Obligations

1. The worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
2. The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, Korea or New Zealand.
3. The worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
4. Your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager”.
5. The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

When should I conduct the Labour Market Testing?

Labour Market Testing must have been conducted within 12 months before the lodgement of a 457 visa nomination. Evidence of Labour Market Testing must be presented at the time of nomination lodgement.

Market Salary and Equivalent Employment Terms and Conditions

Standard business sponsors are required to offer employment terms and conditions that are comparable to those offered to Australian citizens and permanent residents. This is required to ensure overseas workers are not being exploited for cheap wages or long work hours.

You can be exempted from demonstrating market salary rates if the proposed annual earnings of the worker is at least AUD 250,000.

You will need to show that the terms and conditions offered to the sponsored overseas worker are of the same wages and working conditions as an Australian employee. If there are no comparable Australian employees in a similar position, the standard business sponsor should refer to relevant industrial instruments such as modern awards to determine market salary and acceptable employment conditions. The Fair Work Ombudsman (https://www.fairwork.gov.au/) is a good reference to ensure acceptable employment conditions are in place.

Market Salary and the Temporary Skilled Migration Income Threshold (TSMIT)

Although a separate requirement, the Temporary Skilled Migration Income Threshold (TSMIT) is an important consideration when determining the Market Salary for a 457 visa application. The rules in relation to the TSMIT are:

• The market salary for the position must be greater than the TSMIT
• If the market salary for the position is lower than the TSMIT then you will not be able to sponsor an overseas worker for the position under the 457 visa programme
• You cannot pay an overseas worker above the market salary rate just to meet the TSMIT

The TSMIT is currently set at AUD 53,900.

If you need further information that is specific to your business, industry or situation, please contact us to find out more details on the 457 visa application requirements.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The DIBP does not clearly spell out the exemption to Labour Market Testing based on skill levels of the occupation. As such there have been instances where businesses paid thousands of dollars to agencies that provide Labour Market Testing services when it was not necessary. Occupations such as Software Engineers or Marketing and Sales Managers do not need Labour Market Testing due to their occupation skill level, but businesses have paid unnecessarily to meet the Labour Market Testing requirement. Always check with an experienced Registered Migration Agent to determine if the Labour Market Testing is applicable for the position you are nominating.

While standard business sponsors are required to meet the Labour Market Testing and Market Salary requirements at the time of application, it is also important that the sponsors adhere to the employments terms and other obligations after the 457 visa is granted.

Failure to maintain such conditions can lead to monitoring and sanction penalties from the Department of Immigration and Border Protection (DIBP).

This information is accurate on 19 February 2016

Source:

1. https://www.border.gov.au/Trav/Visa-1/457-
2. https://www.fairwork.gov.au/

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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This is the news that many have been waiting for. The Department of Immigration and Border Protection (DIBP) has amended English requirements for the Subclass 457 (Temporary Work (Skilled)) visas. The change will affect all new applications lodged on or after 18 April 2015, and also existing applications in progress that have not been finalised. Here are the new scores requirement:

Additionally the exemption to the English requirement has now changed to requiring an applicant to have at least 5 years of cumulative full-time study in a secondary and/or higher education institution where the instruction was delivered in English. Previously the studies needed to be completed consecutively for 5 years.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

Along with the changes announced for the 476 and 485 visas (read the news here), the 457 visa programme now has lower English requirements as well. There are no changes to the OET test scores requirement, and CAE exams need to be completed on or after 1 January 2015.

While this will allow more applicants to meet the 457 visa requirements, it is important to know that there are other criteria that need to be fulfilled prior to lodging an application, as well as important obligations to fulfil after a 457 visa is granted, for both the applicant and business sponsor. Failing to meet the criteria and obligations thereafter may cause invite monitoring and sanctions from the Department.

Source:

1. http://www.comlaw.gov.au/Details/F2015L00563

This information is accurate on the 21 April 2015

Do you need help with an Employer Sponsored work visa application?

At Work Visa Lawyers we are experienced in assisting applicants for the Employer Sponsored work visa applications, which include business sponsorship application, nomination and visa application. We are also experienced in general skilled migration visas, business skills visas and family visas.

If you require further information regarding your Australia visa options you can contact us through:

(08) 7225 5091 or +61 8 7225 5091

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The Department of Immigration and Border Protection (DIBP) has released a response to the 457 Visa Programme integrity review report today. The majority of the changes announced are expected to be implemented over the next 6 months.

Here is a snapshot of the changes announced:

• English requirements for the 457 visa applicant will be changed to overall 5.0 for the IELTS exam, with no components scoring lesser than 4.5.
• Other English exams to be accepted for the visa application will be announced next month.
• Visa charges are being reviewed and are likely to change.
• Training Benchmarks will be replaced by annual training fund contributions to the Department of Industry (possible implementation in 2016)
• Severe penalties for Business Sponsors who receive payment from visa applicants/holders in return for sponsorship and nomination.
• Validity of Standard Business Sponsorships (SBS) to be lengthened from 3 to 5 years for existing businesses; from 12 to 18 months for new businesses.

More information will be available as the DIBP gets closer to implementing the planned changes.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The 457 visa programme has undergone many changes as the Department tries to strike a balance between helping Australian businesses meet short-term labour needs and protecting Australian workers and their jobs. It is important for both the Business Sponsor and Visa Applicant/Holder to take note of current developments to the 457 programme to ensure sponsorship and visa obligations are complied with to avoid violation and possible sanctions or penalties.

It is noted that the changes are being implemented in the near future and the date of effect for the changes will be crucial in relation to new sponsors, nominees (position) and visa applicants.

 UPDATE

There has been plenty of responses from various parties since the annoucement was made. Here are a few of them:

"Ensuring that visa holders and sponsors are meeting their obligations will boost business and community confidence in the 457 programme."- Kate Carnell, Head of Australian Chamber of Commerce and Industry, on the announced changes

"The labour market testing regime was always flawed and we urge the government to accept the review's recommendation that it be scrapped. The testing amounts to ineffective, time-consuming red tape. Using the scheme is costly for employers and the vast majority don't recruit 457 workers unless they absolutely have to."- Innes Willox, Head of Australian Industry Group, on the Government's decision to keep the labour market testing component

"The government's proposed changes to the 457 visa scheme will improve its operation and reduce business costs, but it has missed the opportunity to do away with redundant regulation."

"It is disappointing that on Repeal Day the government has declined to support the independent review's recommendation to abolish labour market testing. This is a classic case of a regulation that adds to business costs, without improving the integrity of the scheme."- Jennifer Westacott, Chief Executive of Business Council of Australia (BCA)

Scott Barklamb, Executive Director of policy and public affairs for Australian Mines and Metals Association (AMMA) says that foreign workers played a small, but critical, specialist role in the mining industry. He too was disappointed that labour market testing was not abolished.

National Farmers Federation (NFF) president Brett Finlay welcomed the changes and mentioned that while Australian workers were the backbone of the country's agricultural sector, some farm businesses in regional and remote areas struggled to find workers with relevant skills and relied on overseas workers to fill essential roles.

Part of the announcement also mentions the re-establishment of the Ministerial Advisory Council on Skilled Migration (MACSM), which will aid to provide labour market analysis and advice on the composition of the Consolidated Sponsored Occupation List (CSOL).

It appears that many stakeholders welcomed the changes but were concerned about the continuation of labour market testing and the proposed training fund that will replace current Training Benchmarks.

 Source:

1. http://www.immi.gov.au/pub-res/Pages/reviews-and-inquiries/government-response.aspx
2. http://www.sbs.com.au/news/article/2015/03/18/457-visa-changes-announced
3. http://www.theaustralian.com.au/national-affairs/immigration/liberals-tighten-checks-on-457-visas/story-fn9hm1gu-1227267088406
4. http://www.bca.com.au/newsroom/statement-on-the-governments-response-to-457-visa-review

This information is accurate on the 22 March 2015

Do you need help with a 457 business sponsorship or visa application?

At Work Visa Lawyers we are experienced in assisting businesses and individuals in the 457 visa application process. The process is complex with many stages of work involved and we aim to simplify the application process for you and make sure the various criteria for sponsorship and visa are met.

If you require further information regarding your Australia visa options you can contact us through:

(08) 7225 5091 or +61 8 7225 5091

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Business Sponsorship • Nomination • Training Benchmarks • Nominated Position • TSMIT • Market Salary • LMT • English Requirements • From 457 to PR

The 457 visa is the most common Employer Sponsored visa for overseas workers to start working temporarily in Australia. While the 457 program has the simple objective of filling employment gaps for Australian and overseas businesses, the application process is not straightforward. Watch the video to learn more.

0:40 Number One - Three stages of the 457 application:Business Sponsor application, Nomination application (position) and Visa application.
1:17 Number Two - Sponsor must meet training requirements
1:37 Number Three - Nominated position must be on the CSOL list
2:21 Number Four - Nomination requirements include meeting TSMIT, Market Salary and LMT
3:42 Number Five - Visa applicant must have required skills and English
4:33 Number Six - There are conditions that apply to the Business Sponsor and Visa holder after grant of 457 visa
5:40 Number Seven - 457 offers pathway to Australian PR
6:03 Number Eight - Government Review and recommendations to change 457 to cut ‘Red tape’
6:38 Number Nine - Alternative visas to the 457: If your occupation is not on the CSOL
7:35 Number Ten - Do I need help to apply for a 457?

If you would like assistance with getting a visa in Australia, you can contact us via our email at: This email address is being protected from spambots. You need JavaScript enabled to view it.

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2018 UPDATE

Notice: The 457 visa is no longer being granted and was replaced by the 482 visa. 

Top 10 Facts You Need to Know About the New Australian 482 Visa

Video: Top 10 Facts You Need to Know About the New Australian 482 Visa

 Introduction to the 457 visa

Subclass 457 visa is the most common Temporary Work visa. The duration of the visa is for up to 4 years. You can bring your family with you to Australia. Your family can live, work or study for the duration of your visa.

The first requirement to apply for this visa is a Business who is ready to Sponsor you to work for them. The Business should be able to satisfy the Standard business Sponsor requirements discussed later in the Blog. Secondly, you as an applicant should have the required qualifications, work experience and English proficiency.

10 things to know about when applying for a 457 visa – Australia’s most common temporary work visa

1.    Three stages of the 457 application: Subclass 457 is applied in three stages:

i.        Stage 1 - Sponsorship: The Business has to apply for approval as a ‘Standard Business Sponsor’ to DIBP. The business will need to meet a range of criteria including active operation and Training Benchmarks.

ii.        Stage 2 - Nomination: Once the business is approved as a ‘Standard business Sponsor’, a nomination application is to be lodged to the DIBP which will identify the position that is to be filled and key features of the position.

iii.        Stage 3 - Visa: This is the third and last stage of the 457 application. The applicant applies for a visa and must have the required qualification or skills and English.

2.    Training benchmark A and benchmark B: This is one of the requirements of the business to become a Standard Business Sponsor. The Business has to fulfil either of the two benchmarks at the time of applying for the Sponsorship application (Stage 1):

i.        Benchmark A – Business has paid 2% of the total wages paid to its employees in the last 1 year to an Industry Training fund. This Industry Training Fund should be relevant to the employer’s business.

ii.        Benchmark B – Business spent 1% of the total wages paid to its employees in the last 1 year to train the Australian employees. Australian employees include employees of the Business who are either Australian citizens or Australian Permanent Residents.

3.    Do you have an accepted occupation?

Nominated Occupation must be on the CSOL: The occupation of the applicant should be on the Consolidated Skilled Occupation List. This list can be found on http://www.immi.gov.au/work/pages/skilled-occupations-lists/skilled-occupations-lists.aspx

Top 10 occupations for a 457 visa are:

·         Cook (ANZSCO: 351411)

·         Cafe or Restaurant Manager (ANZSCO:141111)

·         Developer Programmer (ANZSCO: 261312)

·         Marketing Specialist (ANZSCO: 225113)

·         University Lecturer (ANZSCO: 242111)

·         General Practitioner (ANZSCO: 253111)

·         ICT Business Analyst (ANZSCO: 261111)

·         Accountant (General) (ANZSCO: 221111)

·         Mechanical Engineering Technician (ANZSCO: 312512)

·         Customer Service Manager (ANZSCO: 149212)

There are currently 651 occupations on the CSOL. So it is worth checking if yours is on the list.

Do you need help establishing the most appropriate occupation? Call us.

4.    Nomination requirements include meeting TSMIT, Market salary and LMT:

 TSMIT (Temporary Skilled Migration Income Threshold): This is the income threshold that is set by the DIBP. Currently the TSMIT is set at $53,900 (please check the figure before you apply as it is subjected to change). Business has to pay a yearly salary of equal to or more than this amount to the applicant to meet the TSMIT requirements.

Market Salary: Market salary is the salary that is being paid to employees with similar occupation in the market. It must be more than TSMIT. Business has to pay a salary equal to or more than the market salary to the applicant.

Please note: The salary to be paid to the applicant should be equal to or more than TSMIT and equal to or more than the market salary for the nominated occupation.

LMT (Labour Market Test) may be required: Business may be required to provide evidences that they tried to fill the nominated position with an Australian employee and that the Business advertised the position in last 1 year but could not get a suitable candidate for the position.

5.    Visa applicant must have required skill and English: The visa applicant should hold skill and work experience in the nominated occupation in some cases. If the nominated occupation is a Trade occupation, applicant may require a Skill assessment from the Trade Recognition Australia (TRA). The nominated occupation may have Registration and Licensing requirements as well.

Visa applicant will need to meet English requirements or an exemption: The visa applicant is required to score 5 bands in each module in IELTS or a score “B” in each of the four components in OET. Applicant may be exempted from this requirement if:

i.        Applicant is to be paid a base salary of more than the English-language-requirement exempt amount which is $96,400 per year at present (it may change in future), or

ii.        Applicant holds a passport from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America, or

iii.        Applicant has completed at least five years of continuous full-time study in a secondary or higher education institution in English.

6.    Conditions applicable to Business Sponsor and applicant after grant of 457 visa:

There are a large number of requirements for approved 457 Business Sponsor and 457 visa holders to comply with. The conditions include:

  i.        Conditions applicable for business:

     i.    Applicant works in the nominated occupation.

     ii.    Business should retain all the records.

     iii.    Provide training to Australian citizens or permanent residents.

ii.        Conditions applicable for the applicant:

       i.     Primary applicant can only work for the approved sponsor

     ii.    Secondary applicants have no work restrictions

     iii.    There are a limited number of occupations with exemption to work rights

     iv.    Must maintain adequate arrangements for health insurance

     v.    Must inform DIBP if applicant stops working.

The Department of Immigration and Border Protection does undertake monitoring on approved Business Sponsor. We have expertise in helping businesses respond to monitoring requirements.

Do you need help with responding to the Department regarding Business Sponsor Monitoring.  Call us.

7.    457 offers pathway to Australian PR: After working with the approved Sponsor for two years, applicant can apply for a Permanent visa subclass 187 under the Temporary Residence Transition Stream. The Business Sponsor must meet all Sponsorship requirements for the two years the person is on a 457, if they want to be able to use the Temporary Transition pathway.

8.    Government Review and recommendations to change 457 to cut ‘Red tape’

The Government has release a review report on the 457 program titled, Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme.

The Report contains 22 recommendations, which include the following:

·         Labour Market testing requirements be abolished;
A more flexible and adaptive approach to adding occupations to the 457 list (CSOL list), due to limitations of the current ANZSCO occupations.

·         That the English language requirement be amended to an average score. For example, in relation to International English Language Testing System, the 457 applicant should have an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider)

For more details on the recommendations, please go to:

http://www.workvisalawyers.com.au/news/entry/457-visa-news-government-report-recommends-changes-including-easing-english-requirements-and-lmt.html

9.    Alternative visas to the 457:

If your occupation is not on the CSOL then your options may include:

1.    RSMS visa – this requires that the position is a Trade or Diploma level on ANZSCO but is not limited to a list.

2.    Labour Agreement – It is possible to apply for a labour agreement to get access to occupation not on CSOL or to varying other 457 condition. The Labour agreement process is usually external and would require professional assistance.

3.    Partner visa - if you have an Australian Partner.

4.    Student visa

This is not the full range of options, but just some of the most common.

10.Do I need help?

The 457 process is complicated and the requirements are regularly changed by the Australian Government. Currently 73% of 457 visa applications are lodged by Registered Migration Agents. This is based on figures for April to June 2014.

In Australia, migration agents must be registered with the Office of the Migration Agents Registration Authority (MARA). If you choose to use a migration agent, you should use a registered migration agent.

Registration gives you protection and helps ensure people working as migration agents are aware of current laws and procedures and give correct advice.

https://www.mara.gov.au/media/337494/MAAR_Apr_Jun_2014_Web.pdf

If you require assistance with a 457 visa process then Work Visa Lawyers has a team of Migration Lawyers and Registered Migration Agents that can assist you.

Sources:

Australian Government Report:

http://www.immi.gov.au/pub-res/Documents/reviews/streamlined-responsive-457-programme.pdf

News release by Senator the Hon. Michaelia Cash:

www.minister.immi.gov.au/media/mc/2014/mc217716.htm

Warning -This information is accurate on the 28 November 2014.  

DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application. 

Do you Need Help with the 457 process, to be approved as a business sponsor or to get an Australian Visa for an employee?

If you require further information regarding an employer sponsored visa applications, either as an employer or an applicant, we can help you.

Our contact details are:

 (08) 7225 5091 (if calling from within Australia)

+61 8 7225 5091 (if calling from outside Australia)

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