If you’re running a small or medium sized business and struggling to fill certain roles with quality employees, you may have considered looking overseas to help grow your enterprise. Employer sponsored visas address genuine skills shortages in the labour market by allowing employers to bring qualified workers to Australia to fill positions that they cannot fill locally.
Becoming a business sponsor is a prerequisite to hiring overseas workers under the Temporary Skill Shortage visa (subclass 482). In most cases, the role to be filled must appear on a skilled occupations list. These lists are updated regularly to ensure they reflect shortages at any given time and may change with little or no notice.
Approved business sponsors have ongoing obligations, and non-compliance can result in penalties such as fines, barring from further nominations and cancellation of sponsorship status.
With so much at stake, it makes sense to work with an immigration lawyer with the expertise and knowledge required to help your business secure a skilled workforce.
Becoming a business sponsor
Approval as a standard business sponsor lasts for five years and may be renewed on a continuing basis provided the employer continues to meet the relevant criteria. Once approved, a business may apply for accredited status which provides additional benefits such as priority processing.
A standard business sponsor may apply to:
- sponsor a skilled worker who is living overseas and wants to migrate to Australia temporarily or permanently;
- sponsor a skilled person who is already living in Australia on a visa that does not currently allow them to work; or
- sponsor a skilled person who is currently working under a different visa type.
Sponsors will need to check the applicable eligibility requirements and ensure that existing visa holders are not subject to work restrictions.
Business sponsors – eligibility and process
Applications for approval as a business sponsor are made through the Department of Home Affairs and must be accompanied by the relevant fee. These costs must not be passed onto a prospective employee / visa applicant.
The proposed sponsor must lawfully operate a business within or outside of Australia and nominate the number of positions required over the term of approval. The business must be legally established and currently operating, whether that be through a sole proprietorship, partnership, trust, company or other structure.
Applications must be supported by appropriate evidence such as:
- an Australian Business Number (ABN) registration certificate;
- an Australian Registered Body Number (ARBN) registration certificate for overseas entities registered to operate in Australia;
- a company extract from the Australian Securities and Investment Commission (ASIC);
- an extract from the ASIC business name register;
- an Australian Stock Exchange (ASX) listing registration;
- profit and loss statements / financial reports;
- joint venture agreements, partnership agreements, franchise agreements;
- if the business is operating under a trust arrangement, details of the trustee, name and ABN of the trust.
Sponsors must attest to having a commitment to utilising local labour and that they will not undertake discriminatory recruitment practices. Existing Australian businesses must show that they have made genuine efforts to recruit for the occupation locally.
Start-ups and businesses operating outside of Australia
Proposed sponsors that do not presently operate in Australia should provide evidence of registration in the country in which they operate and proof that they intend to establish a business entity in Australia. This may include copies of a company or business expansion plan, joint venture agreement or contract with an Australian entity.
New businesses should provide business plans, bank statements, tax returns for the most recent year/s, business activity statements (BAS), service contracts, lease agreements, and wage records (as relevant).
Adverse information
There must be no adverse information known to the Department about the business or business owner – this is information regarding an event or situation that has occurred within the past three years and which may raise doubts about the applicant’s suitability as a sponsor. Adverse circumstances include:
- insolvency under the Bankruptcy Act 1966 or Corporations Act 2001;
- that the organisation or business owner has been found guilty of certain offences (relating to discrimination, immigration, industrial relations, occupational health and safety, people smuggling / trafficking, slavery, sexual servitude, deceptive recruiting, taxation or terrorism);
- that the organisation is being investigated, has been subject to disciplinary proceedings or legal action, or has been the subject of administrative action.
Sponsorship obligations
Business sponsors have specific reporting requirements and obligations to their workers, which may continue after the employment relationship ends.
As with all Australian employers, sponsors must comply with relevant workplace and health and safety laws, and provide workers with the same terms and conditions of employment as would be provided to Australian citizens.
The employer must pay the visa holder a market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) to ensure that overseas workers are not exploited, and Australian workers are not cut out of a position.
The visa holder must only work in the approved occupation.
A sponsor must notify the Department of events such as:
- termination of the visa holder’s employment;
- a change in the visa holder’s work duties;
- the bankruptcy or insolvency of the sponsor;
- cessation of the business;
- payment by the sponsor of a visa holder’s or family member’s return travel costs pursuant to an obligation to pay such costs.
If there is a change in the legal structure of the business entity, such as the registration of a company by a sole trader, then the new business entity must apply for approval and lodge fresh nominations for each visa holder currently employed.
Conclusion
Immigration law evolves constantly. We recommend businesses work with an immigration professional to ensure they stay abreast of changes in regulations and policy, to ensure continued opportunities to employ skilled staff.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9699 9877 or email [email protected].