Employer Sponsor Visa Requirements

The employer sponsored migration program enables Australian employers to sponsor overseas workers to fill positions in their business where they are unable to source skilled labour from the local employment market. There are a number of employer sponsor visa options available that are each targeted towards meeting a specific need. Each option is also subject to its own requirements, both for the employer sponsor, and for the prospective visa holder. There are temporary and permanent visa options available, as well as a regional visa which is specifically targeted to certain regions in Australia that are experiencing critical labour shortages.

Also keep in mind that if you are not eligible for an employer sponsor visa, you may consider other skilled visa options such as an independent, state or family sponsored skilled visa.

What Employer Sponsored Visa Options Are Available?

Employer Sponsored Visa

The employer sponsored visa 482 is a temporary visa which permits the visa holder to live and work in Australia for a period of up to either two or four years. It consists of a Short-term, Medium-term and Labour Agreement stream.

Employer Nominated Visa

The Subclass 482 Temporary Skill Shortage (TSS) visa noted provides a pathway to permanent residence after two years, through the employer sponsored visa 186 under the Temporary Residence Transition Stream (TRTS).

There is also a direct pathway to employer sponsored permanent residency available through the Direct Entry (DE) stream of the Subclass 186 Employer Nomination Scheme (ENS).

A third pathway is also available under the ENS program through the Labour Agreement stream.

Regional Employer Sponsored Visa

A further employer sponsor visa option available is the Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa, which enables regional employers to address identified labour shortages within their region by sponsoring skilled workers where they cannot source an appropriately skilled Australian worker. This regional employer sponsored visa also provides a pathway to permanent residence after three years. A Labour Agreement stream is also available.

As a subclass 494 regional employer sponsored visa holder, you must be employed to work in the nominated occupation and in a position in the sponsoring employer’s business or an associated entity of that business, which is located in a designated regional area of Australia.

Employer Sponsorship Obligations

For businesses that are considering sponsoring overseas workers under the employer sponsorship visa program (that is, the subclass 482 or subclass 494 visa), it is also important to be aware of the employer sponsorship obligations that they will be subject to as an employer sponsor. If any of these obligations are not met, the Department of Home Affairs (the Department) can issue penalties. These penalties may include administrative sanctions (barring or removing the sponsor from participating in the program), infringement notices, sponsors entering into an enforceable undertaking and civil penalties.

Visa Conditions

Employer sponsor visa holders are also subject to certain visa conditions for the term of their visa. It is vital to have a full understanding of what these requirements entail as failing to adhere to visa conditions can have significant consequences, including visa cancellation and further impacts on the visa holder’s ability to apply for a subsequent visa to Australia.

For example, as a subclass 494 regional employer sponsored visa holder, you will be subject to condition 8579 which stipulates that whilst you are in Australia, you must live, work and study only in a part of Australia that was a designated regional area at the time the relevant nomination was made. You must comply with the requirements of condition 8579 for the period they you hold the subclass 494 visa to be eligible to be granted permanent residence under the subclass 191 visa.

Under condition 8608, you must also commence your employment within 90 days after your:

• arrival in Australia (if you were offshore at time of visa grant): or
• visa is granted if you were onshore at time of visa grant.

Subclass 482 visa holders too are subject to the above employment requirement under visa condition 8607.

As you can see, there are a number of factors to consider if you are interested in an employer sponsor visa, including assessing your eligibility for a skilled visa among the options availble based on your individual circumstances, goals and needs, and the requirements or conditions to which you will be subject as an employer sponsor or visa holder.

In this article, we take a closer look at the employer sponsor visa options on offer, being the employer sponsored visa 482, employer sponsored visa 186 and the regional employer sponsored visa. We examine some of the key requirements to qualify for these options, including the employer sponsorship requirements and we also discuss the employer sponsored permanent residency pathways that are available.

Employer Sponsored Visa Options

Let us begin by examining the Subclass 482 TSS visa.

Temporary Subclass 482 Temporary Skill Shortage (TSS) Visa

The employer sponsored visa 482 is a temporary employer sponsored visa which will enable you to live and work in Australia for up to two or four years, depending on the visa stream which you apply for. It provides a pathway to permanent residence in Australia after two years, subject to meeting specified requirements.

As a TSS visa holder, you can:

• work in Australia for your approved sponsor in your approved occupation;
• bring any eligible dependants with you to Australia (your dependants can work and study); and
• have unrestricted travel rights in and out of Australia for the term of the TSS visa.

The TSS visa program consists of a short-term, medium-term and labour agreement stream (you must select one when applying for the visa).

Short-Term Stream

The short-term stream enables employers to source genuinely temporary overseas skilled workers to fill short-term positions in a range of occupations for a maximum of two years (or four years if an international trade obligation (ITO) applies), with eligibility to apply for permanent residence after two years.

To apply under the Short-term stream, your occupation must included on the Short-Term Skilled Occupations List (STSOL).

Medium-Term Stream

The medium-term stream is designed for employers to source highly skilled overseas workers to fill medium-term critical skills for up to four years, with eligibility to apply for permanent residence after two years.

The Medium-term stream requires that your occupation be on ​​​​​​​​​​​either the Medium and Long-term Strategic Skills List (MLTSSL) or the Regional Occupation List (ROL).

Labour Agreement Stream

The labour agreement stream enables an employer to enter into a labour agreement with the Commonwealth to hire skilled overseas workers, where there is a demonstrated need that cannot be met in the Australian labour market and the standard visa programs are not available.

For the Labour Agreement stream, the occupation list will be specified in the labour agreement that your employer has agreed to with the Department. There are a number of different types of labour agreements, as follows:

• Company specific labour agreements;
• Designated area migration agreements;
• Project agreements;
• Global Talent Scheme (GTS) agreements; and
• Industry labour agreements.

Note that under this visa stream, the sponsorship stage of the process is replaced with the negotiation and signing of a labour agreement. Nomination and visa applications are still required.

How To Apply For A TSS Employer Sponsor Visa

The employer sponsored visa 482 program requires approval of three applications, being a sponsorship application by your employer (a new one is required every five years), a nomination application for your nominated position, and a visa application.

So what are the key eligibility requirements for an employer sponsored visa 482?

Employer Sponsorship Requirements

Some of the main employer sponsorship requirements for approval as an employer sponsor (the first stage of the TSS visa application process) include the following:

• lawfully operating a business;
• having a strong record of, or a demonstrated commitment to, employing local labour, and declaring that the sponsor will not engage in discriminatory recruitment practices; and
• there is no adverse information known to the Department about the employer or a person associated with the employer, or it is reasonable to disregard such information.

Overseas businesses can also apply for sponsorship if they seek to establish, or assist in establishing, a business operation in Australia with overseas connections; or to fulfil, or assist in fulfilling a contractual obligation.

A wide range of business structures is acceptable for sponsorship purposes, including sole traders, partnerships, companies (public and private) and non-profit organisations.

As part of the sponsorship application process, certain entities may apply for accredited status if they meet additional requirements. Becoming an accredited sponsor for the TSS visa is also an option. As an accredited sponsor, an entity will receive priority processing for all applications lodged under the TSS visa programme, as well as streamlined processing of certain nomination applications. The entity’s applications will be processed ahead of other non-accredited nomination and visa applications, which in most cases will be within 5 days.

Please note that the above employer sponsorship requirements also apply to sponsorship applications made under the subclass 494 Skilled Employer Sponsored Regional visa program. 

Nomination Requirements

The second stage of the application process looks at the actual position that the employer is seeking to nominate you for in their business.

To have the nomination approved, the employer must meet a number of specified requirements, which include the following:

• the entity must be an approved sponsor (see stage one of the process above);
• the entity must nominate an occupation from a list of eligible skilled occupations, or as specified in a labour agreement;
• there must be no adverse information known about the business or any person associated with the business;
• the position must be genuine and generally, full-time employment;
• the entity must provide a written contract of employment;
• the proposed applicant must be employed as a direct employee, or as an employee of an associated entity if the entity is an Australian business sponsor;
• meet requirements relating to the nominated salary and employment conditions;
• provide evidence of Labour Market Testing where required (this relates to advertising in the local labour market); and
• not engage in discriminatory recruitment practices.

Visa Requirements

To qualify for an employer sponsored visa 482, some of the main requirements that apply include that you must have minimum qualifications and/or employment experience as specified for the occupation, in addition to two years minimum skilled employment experience. You must also meet specified English language requirements.

To learn more about the employer sponsored visa 482 program and how it operates, we recommend that you refer to our article on the Subclass 482 – A Guide to Temporary Skill Shortage.

Employer Nominated Visa

If you meet the specified requirements, as an employer sponsored visa 482 holder, you may be eligible for a subclass 186 permanent residence visa after having worked in the position for your nominating employer for at least two of the last three years (under the temporary residence transition stream). Or, alternatively, you may qualify for this visa under the labour agreement stream. A third stream, being the direct entry stream, enables you to qualify for immediate permanent residence in Australia.

Note that different requirements apply to each visa stream. Some of the main requirements that apply include the following:

• If you are applying under the Direct Entry stream, your skilled occupation must be listed on a specified skilled occupation list, and you must have minimum qualifications and/or employment experience as specified for the occupation. Alternatively, if you are applying under the TRT stream, your nominated occupation must be in the same ANZSCO 4-digit unit group that formed the basis for granting the Subclass 482 visa. If you are applying under the labour agreement stream, your nominated occupation must be the subject of a labour agreement between your sponsoring employer and the Government;
• You must be under 45 years of age at the time of application (there are exemptions to this requirement);
• A positive skills assessment may be required; and
• You must have Competent English (unless you are subject to an exemption).

To be granted a permanent residence employer sponsored visa 186, you must commit to remaining with your nominating employer for two years from visa grant.

Regional Sponsored Migration Scheme (RSMS)

In addition to the employer sponsored visa 186 under the Employer Nomination Scheme (ENS), the permanent employer sponsored entry (PESE) visa program also includes the subclass 187 Regional Sponsored Migration Scheme (RSMS).

Be mindful, however, that the RSMS visa closed to new applications on 16 November 2019. Visa applications can only be made for a RSMS visa in the Temporary Residence Transition (TRT) stream if the applicant is a transitional 457 worker or a transitional 482 worker at the time the application is made (note these are defined terms in the migration provisions).

This permanent residence regional employer sponsored visa is similar to the subclass 186, however one key difference is that the subclass 187 visa is targeted towards regional areas. That is, the RSMS program is designed to help employers to fill critical skilled labour shortages in regional Australia.

Importantly, the subclass 494 visa replaced the subclass 187 RSMS visa on 16 November 2019.

Subclass 494 Skilled Employer Sponsored Regional (Provisional) Visa

The subclass 494 visa is a provisional, regional-based employer sponsored visa. It has a term of five years.

It consists of an employer sponsored stream and a labour agreement stream.​​​​​​​​​​

The application process is similar to the TSS visa program in that it consists of three steps: sponsorship, nomination and visa application.

Application Process

The employer must apply for approval as a standard business sponsor (SBS). This is the same type of sponsorship as used for the TSS visa program discussed above. Australian businesses that are already approved as a SBS for this purpose do not need to apply for a separate SBS in relation to the subclass 494 visa. As with the TSS visa program, the sponsorship period is five years. This means that the employer may not be required to apply for a new SBS each time they seek to sponsor a new worker.

However each new prospective visa application still requires the lodgement of a nomination application (by the employer), and a visa application (by the prospective worker).

The nomination stage requires the employer to nominate an occupation for the subclass 494 visa applicant.

At the visa application stage, the person who is nominated by the employer to work in the nominated occupation needs to apply for a subclass 494 visa.

If applying under the Labour Agreement stream, the sponsorship stage of the process is replaced with the execution of a labour agreement between the Commonwealth and the employer. Nomination and visa applications are still required.

What Can You Do As A Subclass 494 Visa Holder?

As the holder of a subclass 494 regional employer sponsored visa, you:

• can only work in Australia for your approved sponsor in your approved occupation;
• must live and work only in regional Australia;
• can bring any eligible dependants with you to Australia. Your dependants can work and study (but they must live, work and study only in a designated regional area of Australia); and
• have unrestricted travel to and from Australia for the visa term.

Permanent Residence Pathway

This visa provides a pathway to a permanent residence visa after three years with the Subclass 191 Permanent Residence (Skilled Regional) visa, provided you meet prescribed requirements.

Visa Condition 8579

As discussed earlier in this article, it is important to be aware that as a subclass 494 regional employer sponsored visa holder, you will be subject to visa condition 8579, which requires you to live and work in a designated regional area of Australia.

Note that other visa conditions also apply.

How To Qualify For A Subclass 494 Visa

Sponsorship

The sponsorship stage is the same as was discussed above for the TSS visa program.

Nomination

Key requirements for nomination approval include the following:

• be an approved Standard Business Sponsor (SBS) and an Australian business;
• nominate a skilled worker for an occupation that is included on the relevant Skilled Occupation List (SOL). Any applicable caveats must be met;
• demonstrate that you cannot find an appropriately skilled Australian citizen or permanent resident to fill the position by conducting Labour Market Testing (LMT) (advertising the position (unless an exemption applies);
• If the annual salary will be less than $250,000, you must demonstrate that the nominee will be paid at least the Annual Market Salary Rate (AMSR) (which is what an equivalent Australia worker would be paid) for the position. Both the AMSR and what the overseas worker will be paid, excluding any non-monetary benefits in both cases, must be at least equal to or greater than the Temporary Skilled Migration Income Threshold (TSMIT) (which is currently set at $53,900). A specifed Regional Certifying Body (RCB) must also assess the annual market salary rate;
• demonstrate that the nominated position is genuine, full-time and likely to exist for 5 years. Relevant factors to consider in determining the genuiness of the position include whether the:

1. skills and duties of the position are consistent with the skill level and the tasks of the nominated occupation as listed in Australian and New Zealand Standard Classification of Occupations (ANZSCO);
2. position is consistent with the nature of the business (does it fit clearly within the scope of the activities and scale of the business);
3. position was created just to help your nominee stay in, or migrate to Australia.

• The nominee must be engaged as employee under a written contract of employment, to work only for the business or an associated entity of the business (unless an exemption applies). A copy of the signed contract must be submitted with the nomination application. The terms and conditions of the nominee’s employment must not include an express exclusion of the possibility of extending the period of employment;
• the nominated position must be located in a designated regional area; and
• the terms and conditions of employment for nominated overseas workers must be no less favourable than for Australian employees.

Subclass 494 Visa

Key eligibility requirements to qualify for a subclass 494 regional employer sponsored visa include that you must:

• be nominated by an approved employer sponsor;
• be nominated to work in an occupation that is included in the relevant skilled occupation list;
• be aged under 45 years at time of visa application (unless an exemption applies);
• have Competent English; and
• have the skills, qualifications and employment experience to perform the nominated occupation – this includes:

1. having at least three years of relevant employment experience in your nominated occupation; and
2. having a positive skills assessment from a prescribed skilled assessing body for your nominated occupation (unless an exemption applies);

Other requirements include meeting health and character critieria.

Please refer to the following articles for further information about the subclass 494 regional employer sponsored visa:

New Skilled Regional Visas to be introduced

An overview on all Skilled Regional Sponsored Visas

Further Regulations released for the new regional sponsored visas to commence from 16 November 2019

Skilling Australians Fund (SAF)

The sponsor must also pay a Skilling Australians Fund (SAF) levy at the time of lodgement of the nomination application for the employer sponsored visa 482, employer sponsored visa 186 and subclass 494 regional employer sponsored visa programs.

The skilling Australians fund levy is payable under both the standard business sponsor and labour agreement sponsor streams of these visa programs.

The amount payable for the skilling Australians fund levy will depend on the visa program being applied for. A key factor is the annual turnover of the sponsoring business.

For further information on the SAF, including how it is calculated for each of the above employer sponsor visa programs, please refer to our article on the SAF Skilling Australians Fund Levy.

Employer Sponsorship Obligations

To learn more about employer sponsorship requirements, please see our article on the 482 Visa Employer Obligations (note the same obligations apply to employer sponsors under the Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa program.

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Sources/Links

Australian Bureau of Statistics – 1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1 ARCHIVED ISSUE Released at 11:30 AM (CANBERRA TIME) 25/06/2009