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Subclass 457 Temporary Work VISA
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ABOUT THIS VISA

The Subclass 457 visa is primarily intended to provide streamlined entry arrangements for businesses needing to recruit skilled staff from overseas on a temporary basis. The 457 visa program is designed to fill skill shortages that cannot be met from the local labour market.Subclass 457 visa entry streams include:

  • employment in Australia with an approved business who is party to a labour agreement (LA)
  • employment in Australia with an approved standard business sponsor.

The Temporary Work (Skilled) visa (subclass 457) allows skilled workers who are sponsored by an approved business to come to Australia and work for an approved business for up to four years.You can be in or outside Australia when you lodge your application for migration to Australia. You will be able to live and work in Australia with your family for up to four years in your skilled occupation. 

You may be able to set up your own company to sponsor yourself if you are able to demonstrate a genuine need for the position. After the employer/company is approved as a Standard Business Sponsor, you will be able to apply for a Subclass 457 visa based on the employer's nomination. You must work exclusively for your approved Standard Business Sponsor unless you make arrangements to transfer your Subclass 457 visa to another employer or make an application for another type of Australian visa. 

On 18 April 2017, the Hon Malcolm Turnbull MP, Prime Minister of Australia and the Hon Peter Dutton MP, Minister for Immigration and Border Protection jointly announced that the Temporary Work (Skilled) visa (subclass 457 visa) will be abolished and replaced with the completely new Temporary Skill Shortage (TSS) visa which will support businesses in addressing genuine skill shortages.


NOMINATION 

To lodge a nomination you must be an approved business sponsor or have lodged a sponsorship application. You can lodge a sponsorship application at the same time as a nomination and visa application. The Subclass 457 visa nomination requires that your business nominate the Subclass 457 visa applicant for a genuine position with your business, in an occupation which is on the Consolidated Sponsored Occupation List (CSOL).

To nominate an eligible occupation on the CSOL, you must: 

  • specify the position to be filled, the skills and experience required for the position and the salary rate to be paid.
  • pay the market rate for the position and must be employed on equivalent terms and conditions to an equivalent Australian employee at the same location.
  • ensure the nominee must also be paid a minimum specified salary for 457 visa purposes. This is called the Temporary Skilled Migration Income Threshold (TSMIT) which is currently $53,900.00 plus superannuation per annum

You may also be required to provide evidence that you have tested the local labour market to ensure there is no suitably qualified and experienced Australian worker available to fill the nominated position.

The nominated occupation should have the same pay, hours of work and leave entitlements as those which are provided to Australian citizens and permanent residents performing the same or similar work in the local labour market. The pay provided according to these terms and conditions is then considered the ‘market salary rate’ for that occupation in that location.

To help determine the applicable equivalent terms and conditions of employment or the ‘market salary rate’, the Department of Immigration will take into account the following:

  • Is there an equivalent Australian worker undertaking the same work your workplace?
  • is there an industrial instrument with provisions for the nominated position already in operation in your workplace?
  • Is the equivalent Australian worker’s terms and conditions of employment set in a collective agreement (enterprise agreement under the Fair Work Act).
  • Is the equivalent Australian worker’s terms and conditions of employment set directly by another industrial instrument under the Fair Work Act?
  • Is the equivalent Australian worker’s terms and conditions of employment underpinned by a safety net contractual entitlement and set in a common law contract.
  • Is the base rate of pay component of the ‘market salary rate’ above the TSMIT? If not, are the guaranteed earnings of the nominated person equal to or greater than the TSMIT (and is it reasonable to include the claimed earnings other than the base rate of pay).

TEMPORARY SKILLED MIGRATION INCOME THRESHOLD (TSMIT)

The TSMIT provides a benchmark against which the ‘market salary rate’ is measured. This aims to ensure that Subclass 457 visa holders can be self reliant and maintain a reasonable standard of living in Australia and not find themselves in circumstances that may put pressure on them to breach their visa conditions.  This is partially due to a Subclass 457 visa holder's ineligibility to access government income support payments and other government-funded services.

The TSMIT has no bearing on what a Subclass 457 visa holder should be paid in the workplace. It is not possible for an Australian business / sponsor to inflate a nominated person’s proposed salary in order to meet the TSMIT requirement, as it is the base rate of pay under the ‘market salary rate’ for the nominated occupation that is compared to the TSMIT, not the nominated person’s proposed salary.

A nomination under the Subclass 457 visa program would not meet the legislative criteria if the base rate of pay under the ‘market salary rate’ is below the TSMIT.


MARKET SALARY RATE

A Subclass 457 nomination submission must demonstarte that the terms and conditions of employment of the nominated Subclass 457 visa holder (the nominee) will be no less favourable than the terms and conditions that:

  • are provided to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location or
  • if there is no Australian citizen or permanent resident performing equivalent work at the same location, would be provided to an Australian citizen or Australian permanent resident performing equivalent work at the same location, as determined using the method specified in the legislative instrument.

LABOUR MARKET TESTING (LMT)

The LMT requirements for Subclass 457 visa nominations were introduced by the Migration Amendment (Temporary Sponsored Visas) Act 2013. The Migration Act was amended to provide that, in order for a nomination to be approved, the LMT provisions must be satisfied unless the sponsor is exempt under the provisions of the Migration Act.

The Migration Act provides exemptions from the labour market testing condition in the case of a major disaster and in relation to the required skill level and occupation for a nominated position, that is, all occupations which are classed as ANZSCO Code 1 or 2.


INTERNATIONAL TRADE OBLIGATIONS 

LMT exemptions may appliy to Subclass 457 visa  sponsors if it would not be inconsistent with Australia’s international trade obligations to be required to satisfy the LMT provisions.

Australia’s international trade obligations fall under two categories:

  • World Trade Organization General Agreement on Trade in Services (WTO GATS) Commitments
  • free trade agreements.

International trade obligations of Australia that have been determined to be obligations where it would be inconsistent under Australia’s agreement with the other country to require your business to satisfy the labour market testing condition are specified in a legislative instrument.

The legislative instrument specifies international trade agreements and obligations therein relevant to the application of the labour market testing condition to nominations by standard business sponsors. 

In summary, the LMT provisions do not apply where it would conflict with Australia’s international trade obligations, in any of the following circumstances:

  • The foreign national nominated by your business is a citizen/national of Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
  • The foreign national 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, Japan, Korea or New Zealand.
  • The foreign national 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 in the 'legislative instrument' as an “Executive or Senior Manager”.
  • The foreign national you nominate is a citizen of a World Trade Organisation member country and has worked for your business in Australia on a full-time basis for the last two years.

VISA APPLICANTS

Once your employer has been approved as a Standard Business Sponsor and has nominated you for a Subclass 457 visa, the last step will be to apply for your Subclass 457 visa.

To be considered for a Subclass 457 visa you must:

  • Be nominated to work in an approved occupation on the Consolidated Skilled Occupation List (CSOL)
  • Meet the skill requirements for your nominated occupation
  • Meet registration and licensing requirements, if applicable
  • Demonstrate that you meet the English language requirement.
SKILL REQUIREMENTS FOR YOUR SUBCLASS 457 VISA

You do not necessarily need to be formally qualified in your occupation and previous work experience may be taken into account for meeting the skill requirements for your nominated occupation. 

If your nominated occupation is a trade occupation, you may be required to provide a skills assessment.

If it is necessary for your to hold registration, licensing or professional membership to work in your nominated occupation and you provide written evidence from the relevant Australian body of registration or written evidence of eligibility for registration, the skills requirement can be considered met without further enquiry.

If you are required to provide a skills assessment but have evidence of having obtained registration or licensing in Australia, you may also be considered to have met the skills requirement without needing to provide the assessment. In these circumstances, eligibility for licensing or registration would not remove the requirement for you to provide a skills assessment.

If your nominated occupation is Project and Program Administrator or Specialist Manager not elsewhere classified, you will need to complete a skills assessment for migration purposes.

ENGLISH LANGUAGE REQUIREMENTS FOR YOUR SUBCLASS 457 VISA

If you are sponsored by a Standard Business Sponsor, you must show that you have English language proficiency that is equivalent to:

  • an International English Language Testing System (IELTS) test score of at least 5 in each of the four test components of speaking, reading, writing and listening, or
  • a score of at least 'B' in each of the four components of an Occupational English Test (OET).

You do not need to meet the IELTS requirement if your nominated occupation does not need a level of English language proficiency for a grant of registration or license and any of the following are applicable to your circumstances:

  • You will be paid a salary that is more than the English-language-requirement exempt amount. This amount is set at a gross base salary excluding all deductions. The current amount is specified in a legislative instrument. Grant of your Subclass 457 visa will need to be in the ‘best interests’ of Australia.
  • You hold a passport from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America.
  • You have completed at least five years of continuous full-time study in a secondary or higher education institution where instruction was conducted in English. 
SPORTSPERSONS

Sport based occupations for a Subclass 457 visa require high levels of personal commitment, physical fitness, sporting ability and experience in lieu of formal qualifications.

Key factors in determining whether you as a Subclass 457 visa applicant have the skills as a sportsperson include:

  • An employment record as an elite full-time professionalin your nominated occupation
  • Recent experience as a full-time elite player or coach for a substantial period under Australian occupation standards - for example, occupations in ANSZCO unit group 4523 Sports Coaches Instructors and Officials require a minimum period of at least 3 years relevant work experience.
  • Relevant work experience that does not include experience as a trainee, apprentice or cadet and/or non-professional experience
  • The nominated position for your Subclass 457 visa does not require you to supplement your sporting activities with ancillary work or income.

Your elite and professional status as a Subclass 457 visa applicant should be demonstrated by past income records. The income must be substantiated against national income levels and be the principal source of income. You may also be asked to provide references from the relevant national administrative body of the sport in which you are engaged supporting your skill level and income received.

CHEFS AND COOKS

In assessing your skills as a Subclass 457 visa applicant for a chef or cook occupation, we first consider if you are required to obtain a Subclass 457 visa skills assessment.

If no formal skills assessment for your Subclass 457 visa is required, and formal trade training is the standard method of entry into a particular cuisine, such Italian cooking, your Subclass 457 visa nomination should reflect the requirement of formal trade qualification. Under Australian occupation standards, Chefs are considered to be professionals at the Diploma level or higher, whereas Cooks are at the Certificate III level (which includes at least two years on the job training). According to.

If your nominated Subclass 457 visa position relates to a type of cuisine for which formal trade training is not common,  the nominated position should be seeking a person with on-the-job training as a cook in an establishment of good standard where experience in the skills and attributes required for the position can be demonstrated.

BUTCHERS AND SMALLGOODS MAKERS

Butchers and Smallgoods Maker apprentices in Australia are required to complete a Certificate III in Meat Processing. Alternative qualifications such as a Certificate in Food Processing would not be considered sufficient to satisfy the skills requirement for your Subclass 457 visa and might suggest that you have nominated the incorrect occupation.

MEDICAL REGISTRARS

If you are currently in the process of completing your medical based training your position can be known by various terms throughout the process, such as Resident Medical Officer, Junior Registrar and Registrar.

If any of the above titles apply to your position, you may nominated the occupation of Resident Medical Officer (ANZSCO 253112) for your Subclass 457 visa which also includes the occupation of Medical Intern as a specialisation. This is aimed to primarily ensure that different nominations are not required each time you start a new rotation in a different speciality.

If, after the initial period of hospital based training, you choose to specialise in a particular field and accepts a position as a Registrar that particular speciality, it may be appropriate for you to nominate the relevant specialist Medical Practitioner occupation. For example, a doctor working as a Cardiology Registrar could be nominated in the occupation of Cardiologist, or a Paediatric Surgical Registrar could be nominated in the occupation of Paediatric Surgeon.

In such cases, your Subclass 457 visa skills requirement may be satisfied if you hold the relevant qualifications and have the relevant level of registration with AHPRA.


457 VISA CHANGES - FREQUENTLY ASKED QUESTIONS 

What are the immediate changes to the 457 visa system I should be mindful of?

As of 19 April 2017:

  • The CSOL (Consolidated Skilled Occupation List) has been replaced with the new STSOL (Short Term Skilled Occupation List).
  • The SOL (Skilled Occupation List) has been replaced with the new Medium and Long Term Strategic Skills List (MLTSSL).
  • 216 occupations have been removed from the skilled occupation lists.
  • 59 caveats are now in place for specified occupations.
  • New visa validity periods apply under the current 457 visa programme with a 2 year period available for occupations that are eligible for the 457 visa programme but are not on the MLTSSL. That is, for occupations on the STSOL.
Do the changes impact cases that have a review application pending?

The Administrative Appeals Tribunal must make a decision based on the current framework – that is, they are required to take into account recent occupation removals and caveats.

What are caveats?

Occupational caveats are additional requirements for certain occupations to demonstrate the nominated position is appropriate for the 457 visa program. These caveats limit the use of various occupations in certain circumstances.

Where the caveat requires a business to have a turn over of at least $1M, what is the period in which $1M turnover is considered?

From 1 July 2017, the subclass 457 nomination form will collect information regarding the turnover of the business for the last financial year, which will be used to determine whether or not the relevant caveat will apply.

Will occupational caveats apply to businesses that have traded for less than 12 months? If so, will projected turnover suffice where relevant?

Occupational caveats will apply to businesses that have traded for less than 12 months. However, the Department of Immigration will consider exceptional circumstances on a case by case basis.

Where the caveat requires a business to have a minimum of five employees, are there any restrictions on the type of employee ?

If your business declares that they have five employees and this is consistent with other information provided (e.g. structure chart for business etc.), then this will be accepted unless the Department of Immigration has concerns that this is not the case. From 1 July 2017, the subclass 457 nomination form will ask companies to declare their total number of employees and how many are Australian/overseas workers, as per the current subclass 457 sponsorship form. 

What does it mean where the caveats require at least two years of work experience?

This means that a successful candidate for the nominated position would be expected to have completed at least two years full time work experience in the relevant occupation post qualification. 

Is the Regional Sponsored Migration Scheme impacted by the 19 April 2017 changes? 

No – this is because visa applicants can nominate any occupation that is ANZSCO skill level 1 to 3 for this programme. That is, applicants are not currently restricted to the MLTSSL and the STSOL at this stage.

Do the caveats impact permanent visa applications? 

The new caveats only impact subclass 457 applications. Caveats existing prior to 19 April 2017 that impacted other visas remain unchanged. 

Can you still apply for ENS if your occupation is on the STSOL but not the MTSSL? 

If your occupation is on the STSOL or an eligible occupation on the MLTSSL you can apply for the ENS Direct Entry stream. 

Current holders of subclass 457 visas continue to be eligible to apply for permanent residency through the Temporary Residence Transition (TRT) stream of the ENS visa. Access to the TRT stream is not based on the occupation lists and is therefore unaffected by these changes. 

1 July 2017 changes 

Key reforms that will be implemented from July 2017 for subclass 457 visas include: 

  • expanding mandatory skills assessments; 
  • introducing mandatory penal clearance checks consistent with other visas; 
  • tightening existing training benchmarks; and 
  • removing English language exemptions based on a skilled migrant’s salary (e.g. if their salary is higher than $96,400).  
Will there be further changes to the occupation lists for 1 July 2017? 

It is expected that the occupation lists will be regularly updated, based on a range of factors including advice from the Department of Employment and the Department of Education and Training. 

Why are mandatory skills assessment requirements being expanded?

The skills assessment requirements are being considered for expansion to cover a small number of new cohorts of concern. For example, where particular combinations of occupation and nationality have been identified as an integrity risk. 

What nationalities/occupations will be impacted? 

A final decision has not been made in this space. Registered migration agents will be informed of the specific changes proposed via an agents newsletter prior to 1 July 2017. 

What changes are being made to character requirements and why?

As of 1 July 2017, all subclass 457 applicants aged 17 years or older will be required to provide penal clearance certificates for countries in which they have lived for a significant period. 

This measure will strengthen current character and integrity measures and will bring subclass 457 visas into line with other longer stay temporary visa products. 

What reforms will be implemented on 1 July 2017 for ENS and RSMS?

On 1 July 2017, the additional changes below will be implemented for ENS and RSMS: 

  • raising English language requirements to “competent” for all applicants (IELTS 6) – with TRT and Direct Entry requirements to be consistent; 
  • upper age limit of 45 for Direct Entry applicants; 
  • 3 years skill and experience for Direct Entry applicants; and 
  • further changes to the occupations lists and their application to relevant visas
March 2018 changes 
What is the Temporary Skill Shortage (TSS) visa? 

The new TSS visa will replace the 457 visa. It will have two distinct streams: a Short-term stream of up to two years and a Medium-term stream of up to four years. 

What are the changes to the English language requirements?

The English requirements for the Short-term stream of the new TSS visa will be the same as the current Subclass 457 visa, with a minimum IELTS result (or equivalent) of 4.5 in each test component required, and an overall score of 5. 

There will be a higher standard required for the Medium-term stream with a score of 5 required in each test component. 

Will holders of the TSS visa have a pathway to become Australian permanent residents? 

TSS visa holders will be able to transition to Permanent Residency under the Medium-term stream only. 

What reforms will be implemented for ENS and RSMS in March 2018? 

From March 2018, new eligibility criteria for ENS and RSMS will include: 

  • an upper age limit of 45 (from 50) for most applicants; 
  • occupation must be on the MLTSSL (unless an additional occupation approved for regional areas); 
  • a minimum market rate salary: all visa holders must earn at least a minimum salary of $53,900 – that is the TSMIT; 
  • at least three years’ relevant work experience; and 
  • a pathway to permanent residence through TRT requires 3 years on Medium-term TSS visa. 

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