The Employee must:

• Speak English if that will be required to do the job
• Have background or past employment relevant to the job
• Have the necessary skills to do the job (for professions the minimum requirement is a relevant 3-year university degree OR at least 5 years experience in the relevant job, other jobs may have lesser requirements but must be up to Australian standards; we can advise you about this)
• It must be proved that the job was not “created” to allow the Employee to obtain a Visa to Australia.

The Job must be on a list of approved occupations (we can advise you about this)

Special rules apply to Employers who do not already operate a business in Australia. The staff member seeking a visa must either:

• Be involved with the establishment of a business in Australia with overseas connections (such as a branch office of their Employer's business), or
• Be sent to Australia to fulfill a contract on behalf of their Employer (the intention of the Australian Government is to allow specialists and managers to supervise a project in Australia).

A person granted an Employer Sponsored Visa is not eligible for government benefits such as Medicare, free schooling and social security. These benefits are reserved for Australian permanent residents.

Sponsor's Undertaking

Employers who wish to sponsor non-Australian employees into their business in Australia must sign an Undertaking to the Australian Government. Many of the responsibilities in the Undertaking can be dealt with by negotiating an appropriate salary package with the employee. For example, including comprehensive medical insurance for the employee and their family in the salary package can cover most of the obligation relating to payment of medical expenses. Responsibility for the undertakings will commence on the grant of the visa and ceases when the sponsored person ceases to hold the visa for which they were sponsored (there are a few exceptions, see below). The Undertaking is as follows:

Undertaking

The business undertakes to do the following in relation to sponsored persons, including accompanying family members:

• ensure that the cost of return travel by a sponsored person is met;
• not employ a person who would be in breach of the immigration laws of Australia as a result of being employed;
• comply with its responsibilities under the immigration laws of Australia;
• notify Immigration of:
• any change in circumstances that may affect the business’s capacity to honour its sponsorship undertakings; or
• any change to the information that contributed to the business’s ability to be approved as a sponsor or the approval of a nomination;
• cooperate with the Department’s monitoring of the business or of any sponsored persons; this undertaking continues until the earlier of the following:
• if the sponsored person ceases to hold the visa for which he or she was sponsored, the earlier of the time when the person leaves Australia and the time when the person is granted a substantive visa; and
• the time when the sponsor ceases to be an approved sponsor of the sponsored person;
• notify Immigration within 5 working days after a sponsored person ceases to be in the business’s employment
• comply with laws relating to workplace relations that are applicable to the business and any workplace agreement that the business may enter into with a sponsored person;
• ensure that a sponsored person holds any licence, registration or membership that is mandatory for the performance of work by the person;
• ensure that, if there is a gazetted minimum salary in force in relation to the nominated position occupied by the sponsored person, the person will be paid at least that salary;
• ensure that, if it is a term of the approval of the nomination of a position that a sponsored person must be employed in a particular location, the business will notify Immigration of any change in the location which would affect the nomination approval;
• pay all medical or hospital expenses for a sponsored person (other than costs that are met by health insurance arrangements). This undertaking continues until any such expenses are paid;
• make any superannuation contributions required for a sponsored person while the person is in the business’s employment;
• deduct tax instalments, and make payments of tax, while the sponsored person is in the business’s employment;
• pay the Commonwealth an amount equal to all costs incurred by the Commonwealth in relation to a sponsored person. These costs may include those relating to locating and detaining the sponsored person, removing the sponsored person from Australia and processing any application for a protection visa made by a sponsored person; this undertaking continues until all such costs are paid.

It is possible for Immigration to request securities from sponsors to ensure their compliance with the undertaking and the law. This occurs in very few circumstances and only where significant concerns exist.

If you would like to discuss the Sponsorship Undertaking, salary package negotiation, employment contracts or any other aspect of an Employer Sponsored Visa, please contact us.

Permanent Residence

Australian employers may Sponsor overseas staff for employment positions in Australia. Once an employee is granted permanent residence they are eligible for government benefits such as Medicare, free schooling and all other benefits available to Australian residents.

All such applications are decided in Australia, regardless of if the employee is here or overseas.

No Advertising of Position Required

Under the current system there is no requirement to prove that an Australian cannot be found to do the job. No advertising or explanations are required in this regard.

How to Qualify

The employer must:

• Offer a job which matches Immigration requirements (the tasks of the job must match the tasks of a job on a government approved list)
• Provide the employee with full time employment contract with a duration of at least 3 years
• The minimum salary acceptable to Immigration is $39,100.00 + superannuation
• Other terms are required; we can assist you with this
• Be actively operating a business in Australia which is substantial enough to justify and afford the employee, and have a history of compliance with Australia’s laws
• Prove that it is committed to training Australians, or be involved in the introduction of new skills or technology into Australia

The employee must:

• Be under 45 (exceptions can be made)
• Have a vocational level of English (exceptions can be made)
• If applying in Australia, needs an appropriate visa to be able to apply (we can check this). Holders of Student visas must have completed their course (diploma or better) to apply. Special limitations apply to Students assisted by AusAID or by a foreign government.
• Have any licenses, registrations or professional memberships required to do the job in Australia, or be eligible for them
• Pass medical, character and livelihood checks
• Fall within one of 3 categories:
1. Get a skill assessment for the job offered from an organization appointed by Immigration for this purpose (we can assist with this); you must have 3 years experience in a job the same as the job now offered; Immigration prefers this experience to be in the 3 years just before you apply for permanent residence; or
2. Have worked in Australia in a job the same as the job now offered for at least the last 2 years; also the last 12 months of that work experience must have been with the employer who is offering you permanent residence; all of this work must have been done while on a certain type of visa (Subclass 457, 418, 422, 428, 421 or 444). We can check this for you; or
3. Be paid a base salary of $151,500 more (Immigration is willing to accept that anyone paid this much has the necessary skills).

Jobs in Regional Areas

Many concessions are given to cases where the employer operates a business in a regional area and the job offered is in a regional area. Immigration has a special list of post codes to define which parts of Australia are considered to be ‘regional’. We can check this for you as required.

The following rules apply to ‘regional’ cases.

The employer must:

• Have the endorsement of a regional authority appointed by Immigration for this purpose (we can assist you to seek this)
• Be actively operating a business in Australia which is substantial enough to justify and afford the employee, and have a history of compliance with Australia’s laws (Immigration checks with various other government departments to verify this)
• Provide the employee with full time employment contract with a duration of at least 2 years
• The job offered must be in an area designated as ‘regional’ by Immigration
• The work to be done must require a person with a Diploma or higher qualification (exceptions can be made)
• The terms of employment must equal/better Australian Award rates
• Other standard terms are required; we can ensure these are included

The employee must:

• Meet 3 basic criteria (exceptions can be made)
1. Be under 45
2. Have a functional level of English
3. Have a diploma or better qualification that is relevant to the job offered
• Have any licenses, registrations or professional memberships required to do the job in Australia, or be eligible for them (no exceptions possible)
• If applying in Australia, needs an appropriate visa to be able to apply (we can check this). Holders of Student visas must have completed their course (diploma or better) to apply. Special limitations apply to Students assisted by AusAID or by a foreign government.
• Pass medical, character and livelihood checks

Family members may be Included in the visa

The employee’s family may be included in the permanent residence visa. Normally a spouse and children under 18 can be included. Children over 18 can be included if they live at home and are a full time student (doing their 1st qualification). It is also possible to include certain other relatives if they live with the employee and are dependent on the employee (we can advise you about this).

The employer does not take any responsibility for any family members included in the visa.

What if the Employment Contract is terminated soon after visa grant? Or what if the employee never starts in that job?

Different rules apply to visas approved under the ordinary scheme and under the ‘regional’ scheme.

If the residence visa is approved under the ‘regional’ scheme, special visa cancellation laws apply. Immigration expects that the visa holder will commence work in the job within 6 months of visa grant and will work in that job for at least 2 years. At the very least, it must be shown that genuine efforts were made towards achieving these goals. Immigration sets its own benchmarks on what is sufficient in that regard. Contact us immediately if you are concerned about any of these possibilities.

In any other case, after the grant of permanent residence the employee will be an Australian resident, so the normal employment laws and rules will apply to any situations. This includes termination of employment. Immigration generally only investigates a case if it appears that there was something false, misleading or dishonest about the original application. If an employee quits or is terminated after visa grant, it does not automatically mean that the visa will be cancelled. Immigration knows that employment relationships do not always last the expected duration. The situation of the employee never starting work is more likely to be investigated by Immigration; even so visa cancellation can sometimes be avoided if sufficient justifications and evidence can be provided. If you have any cause for concern, please contact us to discuss before taking action.

Please contact us for case specific advice on your matter.

Permanent residents of Australia are eligible for government benefits such as Medicare, free schooling and social security.

Employers who want to employ foreign workers and Employees who have a job offer in Australia should complete our FREE Case Assessment.

Employer Sponsored Visas