Temporary Work (skilled) (subclass 457) visa and nominating
By Blaise Alexander, Solicitor and Registered Migration Agent, Lovegrove Smith and Cotton
Nominating is the process by which a standard business sponsor identifies a position in an Australian business to be filled by foreign skilled labour. The nomination process must identify amongst other things:
The occupation is relevant to the position being filled
The skills and experience required for the position
Both the market salary rate and the rate to be paid to the employee for the position
The nomination usually expires 12 months after it has been granted or at the time the 457 visa is granted to the proposed applicant. The nomination must work for your business or an associated entity (there are some exemptions to this requirement).
You do not need to be an approved standard business sponsor in order to nominate, you can lodge a sponsorship application, nomination and visa application at the same time.
To nominate you must
- meet several general requirements, and
- the Temporary Skilled Migration Income Threshold
The nominated position must be on the Consolidated Sponsored Occupations Lists’ (a simpler version is the Skilled Occupations List). These lists are updated by the Department of Immigration and Border Protection periodically with some positions removed or added. The qualifications and experience required for each position are determined by the Australian Bureau of Statistics and described in accordance with the Australian and New Zealand Standard Classification of Occupations (ANZSCO). Therefore it is important that you remain aware of the current approved occupations, and where possible consult a professional solicitor or registered migration agent in order to minimise risk and ensure compliance.
Labour Market Testing (LMT)
Labour market testing (LMT) in the Subclass 457 programme was introduced by the Migration Amendment (Temporary Sponsored Visas) Act 2013 which was passed by Parliament in June 2013 and commenced on 23 November 2013.
Standard business sponsors must ‘test’ the local labour market prior to lodging a nomination and provide information with their nomination about their attempts to recruit Australian workers and how they have determined that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder available to fill the nominated position.
You must provide evidence that you have undertaken labour market testing within the previous twelve months prior to lodging a nomination. This may include advertisements and other attempts to recruit Australians.
International trade obligations
The Department of Immigration and Border Protection states that LMT will not need to occur where it would conflict with Australia’s international trade obligations, in many circumstances, including:
- The worker you nominate is a Citizen/Permanent Resident of New Zealand;
- 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, Chile or
- 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.
- 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”.
- The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in Australia on a full-time basis for the last two years.
These provisions free up the market for hiring employees from New Zealand and high end executives and professionals from numerous WTO countries, facilitating the process for Australian businesses. This is of particular benefit to companies who regularly recruit from Asia and New Zealand to fill executive roles. The process is fast and smooth where you engage a professional with a solid reputation and rapport with the immigration authorities. A good working relationship between your business, your RMA/solicitor and the department will be an invaluable investment over the long term.