In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

• World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
• Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 457 VISA

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

• removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
• replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
• raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011
• increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
• introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
• integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.

As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

• be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
• have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
• have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
• have had at least 30 subclass 457 visa holders granted in the previous 12 months
• have lodged a high level of decision-ready applications over the previous 2 years
• have a non-approval rate of less than 3% for the previous 3 years
• have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
• have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements.

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.
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The Federal Government announced on January 27, 2011, that it will fast-track 457 visa processing for workers engaged on rebuilding work in the wake of the devastating Queensland floods.

457 visa holders and eligibility for Disaster Income Recovery Subsidy

Centrelink is an Australian Government statutory agency that delivers a range of Commonwealth services to the Australian community. Centrelink has confirmed that 457 visa holders and other temporary visa holders who can demonstrate a loss of income from the recent floods in Australia may be eligible for the Disaster Income Recovery Subsidy.

Eligibility for a second 417 Working Holiday visa (WHV) based on flood damage clean-up work

Immigration authorities have advised that WHV holders may qualify for a second WHV visa if they volunteer or undertake paid work assisting in the clean-up of recent flood damage in a designated regional area of Australia. This excludes metropolitan Brisbane.