1. VISAS AND PERMITS
All foreign nationals coming to Australia, other than New Zealand citizens, require a visa to enter Australia. New Zealand nationals are granted a Special Category 444 visa on arrival in Australia.
Australian visas are categorized as temporary or permanent depending on the length of stay permitted by the visa. Each visa category/subclass has a unique three-digit identifier. Australia has over 150 visa subclasses. The key temporary and permanent visas are discussed below. Processing times and application fees are current as of February 2012. Fees increase each year on July 1, usually in line with the Australian Consumer Price Index.
Australia does not have a visa permit system; rather, different visa conditions attach to different visas. Visa conditions are represented by a unique four-digit number beginning with the number 8. For example, Visa Condition 8101 prohibits work in Australia and is attached to all visitor visas. Visa Condition 8107 prohibits work other than for the sponsoring employer and is attached to a sponsored employee’s visa.
2. TEMPORARY VISAS
Depending on an applicant’s country of citizenship and the purpose of his or her stay in Australia, a foreign national who intends to stay in Australia on a temporary basis may seek entry on a visitor visa, business visitor visa, working holiday or work & holiday visa, student visa, or temporary business visa sponsored by an employer (or a related entity). These visas are discussed briefly below.
Additional visas for specific occupations may also be relevant, such as the Occupational Trainee 442 visa, Religious Worker 428 visa, Media and Film Staff 423 visa, Sports 421 visa, or Domestic Worker 427 visa.
2.1 Visitor Visas
A visitor visa is designed for people who have a genuine intention to visit Australia for holidays, tourism, recreation, or informal study. The usual period of stay permitted is 3 months or less. Visa holders must comply with all visa conditions, including Condition 8101 (No Work).
It may be possible to apply for a new visitor visa after arrival in Australia to extend the period of stay permitted on the original visitor visa.
2.1(a) ETA and eVisitor Visas
For passport holders of European Union (EU) countries and other countries considered low risk, intending visitors may apply online for an eVisitor visa or a Visitor Electronic Travel Authority (ETA). There is no application fee, but an A$20 service charge applies.
Nationals of the following countries may apply for an eVisitor visa:
Electronic visas are obtained by online application. Applicants must confirm that they are in good health (free from tuberculosis) and have no criminal record/convictions for which they have been sentenced for a total of 12 months or more, whether or not the sentence was served.
It is advisable to request a printout confirmation of the grant of an electronic visa.
2.1(b) Other Visitor Visas
For nationals of all other countries not eligible to apply for a Visitor ETA or eVisitor visa, or for those wishing to stay longer than 3 months, a paper-based visitor visa application must be made at the nearest Australian mission overseas. Typical processing time varies between 1 to 2 weeks and a fee of A$110 applies.
2.2 Business Visitor Visas
To facilitate business travel, including attendance at conferences, Australia has three main categories of business visitor visas. These visas include the eBusiness Visitor visa for EU nationals, the Business ETA for nationals of other countries considered low risk, and a Business (Short Stay) 456 visa for nationals of countries considered high risk. Collectively, these are referred to as Business Visitor Visas. All Business Visitor Visas may be granted for periods of up to 3 months.
All Business Visitor Visas are issued with Visa Condition 8112, which permits limited work rights only. Holders are permitted to undertake work in Australia provided the work is highly skilled and not ongoing. However, any work is strictly limited to a period of up to 6 weeks only.
2.2(a) Business ETA and eBusiness Visitor Visas
The Business ETA and eBusiness Visitor visa allow business visitors with an EU or ETA eligible passport to apply online for a visa to enter Australia. See 3.1(a) above for a list of nationalities eligible to apply for a Business ETA or eBusiness Visitor Visa. A fee of A$20 applies.
As with other electronic visitor visas, health and character criteria must also be met.
2.2(b) Business (Short Stay) 456 Visas
A Business (Short Stay) 456 Visa allows businesspeople who are not eligible for an eBusiness Visitor Visa or a Business ETA to lodge a paper-based application at the nearest Australian mission overseas.
Typical processing time for a 456 Visa varies from 1 to 2 weeks and incurs a A$140 visa application fee.
2.3 Working Holiday Visas, Work & Holiday Visas
The Working Holiday 417 visa and Work & Holiday 462 visa are for people 18 through 30 years of age who wish to travel to Australia for up to 12 months with the option of seeking employment for up to 6 months with any one employer. A 1-year extension of this visa may be possible if at least 3 months of work is undertaken in selected rural industries in regional Australia while on the Working Holiday visa. An extension of the 6-month period of work permitted with a single employer is possible for a short period in extremely limited circumstances.
Nationals holding passports from the following 19 countries are eligible for a Working Holiday 417 visa:
Passport holders from the following countries are eligible to apply for a Work & Holiday 462 visa:
Work & Holiday 462 visa applicants must hold tertiary qualifications except for U.S. nationals, who must have completed high school.
Provided that the applicant meets character, health, and evidence of funds requirements, the Working Holiday 417 visa and the Work & Holiday 462 visa allow the holder to:
- remain in Australia for up to 12 months;
- leave and re-enter Australia any number of times 12 months from the date of first entry;
- undertake employment in Australia for up to 6 months with any employer; and
- study for up to 4 months.
Processing time for these visas is usually 1 week. The application fee is A$270. Depending on the applicant’s nationality, application may be made online.
2.4 Sponsored Employee – Business (Long Stay) Visas
This is the most commonly used program for employers to sponsor overseas workers to work in Australia on a temporary basis. A Business (Long Stay) 457 visa is a multiple-entry visa that allows holders to work in Australia for up to 4 years. Accompanying family members have unrestricted work and study rights.
There are three main stages in applying for a 457 Visa: sponsorship, nomination, and visa application. Applications for each of these stages may be lodged simultaneously. Current processing time for fully documented applications lodged in Australia varies from 1 to 4 weeks.
Businesses not operating in Australia can apply at the nearest Australian mission overseas for sponsorship and nomination approval. Visa applications by prospective employees of overseas business sponsors must also be lodged overseas.
An employer may seek approval as a sponsor to employ overseas skilled workers. The application fee is A$405. Sponsorship approval is valid for a period of 3 years. The following criteria must be met for a business to be approved as a sponsor:
- lawfully operate a business that is actively engaged in business activities
- be the direct employer (or associated entity of the direct employer) of the visa applicant, unless the visa applicant will work as General Manager or in a limited range of medical occupations
- meet training benchmarks demonstrating a record of and continuing commitment to training Australian citizens and permanent residents; this requires evidence of spending at least 1% of gross payroll on training Australian employees or contributing 2% of gross payroll to an industry training fund. This does not apply in the case of overseas business sponsor applicants
- attest to employing local labor and having non-discriminatory employment practices
- not be the subject of adverse findings or sanctions in relation to certain laws including immigration, tax, superannuation or workplace relations laws.
Sponsors must agree to meet nine sponsorship obligations in relation to sponsored persons:
- ensure that sponsored employees have equivalent terms and conditions of employment to Australians working in the same occupation at the same workplace
- ensure that sponsored employees do not work in an occupation other than the approved occupation
- not recover, or seek to recover, recruitment or sponsorship approval costs from a sponsored person
- pay travel costs to enable sponsored persons to leave Australia
- keep certain records in a reproducible format
- provide certain records and information to DIAC on request
- notify DIAC within 10 working days of certain notifiable events, including termination of employment
- cooperate with DIAC inspectors and not hinder or obstruct an inspector exercising powers under the Migration Act of 1958
- pay costs incurred by the Commonwealth of Australia to locate and remove unlawful noncitizens who overstay a 457 visa.
Compliance with a sponsor’s obligations is monitored by DIAC. Failure to meet the obligations may result in sanctions including cancellation of sponsorship approval.
An intending employer nominates a position that is to be filled by a named overseas worker. The application fee is A$80. An employer must comply with the following requirements for the nomination to be approved:
- nominate an occupation on a gazetted list of approved occupations for 457 Visa purposes; most managerial, professional, associate professional and trades positions are on the list
- provide details of the qualifications, skills, and experience required for the nominated position
- provide a copy of the contract of employment confirming that the overseas worker’s guaranteed annual earnings will be above the Temporary Skilled Migration Income Threshold of A$49,330 p.a. as of February 2012
- provide evidence that the salary offered to the expatriate is on a par with the market salary rate for an Australian worker in the same occupation at the same workplace. If there are Australian employees working in the occupation at that workplace, evidence of their salaries must be provided; if not, external salary surveys may be sufficient
2.4(c) 457 Visa Applications
Once the sponsorship and nomination applications have been approved, the overseas worker’s 457 Visa application is considered. The application fee is A$350.
Health and character criteria must be met. Applicants from medium- to high-risk countries such as China, India, Indonesia, Japan, and South Africa must undertake a chest x-ray, as must any applicant from such countries who intends to enter a classroom situation if staying longer than 12 months. No health checks are required if an applicant is from a low-risk country unless a health condition is indicated, or if he or she has spent more than 3 consecutive months in a higher-risk country in the previous 5 years.
Evidence of health insurance is required prior to visa grant. Passport holders from countries having Reciprocal Health Care Agreements with Australia are eligible to apply for Medicare once they are in Australia. Visa Condition 8501 requires 457 visa holders to maintain health insurance for the duration of their 457 Visa stay.
Note: If an overseas worker already holds a 457 Visa sponsored by his or her existing employer, the visa holder must lodge a new 457 visa application to change employers only if the remaining visa validity period is insufficient.
2.5 Student Visas
Student visas allow prospective overseas students (and family) to further their education in Australia. The application fee is A$535 as of February 2012. Processing times range from 6 to 12 weeks.
A Student Visa holder may work up to 40 hours per fortnight while his or her course is in session and full-time when not in session.
Students may have their visas cancelled for failure to achieve satisfactory academic results and/or minimum attendance requirements.
Many Student Visa holders look to further their stay in Australia following completion of their studies in Australia.
2.6 Visa Options for Partners
A fiancÃ©(e) of an Australian citizen/permanent resident may apply for a Prospective Marriage 300 visa. It is a condition of this visa that the applicant must intend to marry the Australia fiancÃ©(e) within 9 months of visa grant. The application fee is A$1,995 as of February 2012.
Once the marriage has taken place, application may be made for a Partner Visa. See 4.4 below.
3. PERMANENT VISAS
A permanent residence visa permits the holder to live permanently in Australia and:
- work and study in Australia
- receive subsidized healthcare through Medicare and the Pharmaceutical Benefits Scheme
- access certain social security payments (subject to waiting periods)
- be eligible for Australian citizenship (subject to residency eligibility criteria)
- sponsor family for permanent residence
- buy property without the need for Foreign Investment Board Approval
- travel to and from Australia for up to 5 years; thereafter, an application will need to be made for a Resident Return visa.
All permanent residence visa applications require full health checks (medical examination and chest x-ray) except for children under 11 years old, who require a medical examination only. Police checks are required from every country in which an applicant has lived for more than 12 cumulative months in the last 10 years.
With the exception of visa applications based on family relationships such as partners of Australian citizens/permanent residents, high-level English language skills – generally assessed by reference to International English Language Testing System (IELTS) results – are required of all primary applicants. Additionally, secondary applicants 18 or more years old must demonstrate that they meet English language skills to avoid having to pay a second visa application fee of A$4,110 just prior to visa grant.
3.1 Skilled Independent Visa, Skilled Independent Overseas Student Visa
Skilled Independent Visas and Skilled Independent Overseas Student Visas are points-tested General Skilled Migration (GSM) visas, which allow applicants under the age of 50 to migrate to Australia if they have sufficient English language skills as well as recognized qualifications and experience in an occupation that is on a gazetted Skilled Occupations List of just 192 occupations. Additional points are awarded to applicants who have completed studies at an Australian educational institution.
Applicants who are sponsored by either a close relative in Australia or a State/Territory government may also obtain bonus points.
The DIAC application fee is A$2,960. Assessment of the applicant’s qualifications by a gazetted assessing authority is an essential prerequisite to making an application. Applicants for off-shore Skilled Independent Visas must be out of Australia at the time of decision. This may require travel (often to New Zealand) to facilitate the visa grant. Students who have completed their studies in Australia and who have made a valid application for a Skilled Independent Overseas Student visa may remain in Australia as the holder of a Bridging Visa during processing and will not need to leave Australia to facilitate the visa grant.
Processing times are currently 2 to 3 years. Some State/Territory governments seek to attract skilled occupations to their regions by offering sponsorship. State/Territory-sponsored Skilled Independent applications are afforded fast-track processing.
The Australian government totally overhauled the GSM stream from July 2010 with publication of a new reduced SOL to better deliver the skills that Australia needs. Further changes are expected in July 2012.
3.2 Employer Nomination Scheme
The Employer Nomination Scheme (ENS) involves a two-step process that allows Australian employers to nominate highly skilled foreign nationals to work permanently in Australia. For businesses in regional Australia, the Regional Sponsored Migration Scheme (RSMS) requires an additional step of certification from a Regional Certifying Body (RCB).
Processing times for fully documented applications under Registered Migration Agent certified priority processing arrangements generally range from 2 to 4 weeks. The Australian government has confirmed that ENS visas are to be given the highest processing priority.
The employer must be actively and lawfully operating a business in Australia and have a genuine need for a paid employee to fill a position in its business. An employer’s nomination application incurs a A$520 application fee.
To be successfully nominated for permanent residence under the ENS, a foreign worker must be nominated to fill a position on the Employer Nominated Skilled Occupation List (ENSOL) and meet one of the following criteria:
- have worked full-time in Australia in the nominated occupation on a select range of temporary visas for the last 2 years, including 1 year with the nominating employer [note: this is only available to onshore applicants]; or
- be nominated to fill a position with a salary of more than A$250,000 per annum (excluding superannuation or allowances); or
- have had their skills assessed as favorable by the relevant gazetted skills assessing authority and have at least 3 years of full-time work experience in the occupation
Applicants must be under the age of 45 unless exceptional circumstances apply. The base salary for nominees must be at least A$67,556 for ICT-related occupations and A$49,330 for all others.
An ENS visa application must be lodged within 6 months of the nomination approval date; however, both applications may be lodged simultaneously.
There is an application fee of A$2,095 for an offshore ENS 121 visa application and A$3,105 for an onshore ENS 856 visa application.
Changes to the employer-nominated permanent residence program announced on March 9, 2012, effective July 1, 2012, include:
- a requirement that nominating employers pay their nominee the market salary and demonstrate that they meet the same training benchmarks for the 457 visa program
- a single consolidated list for ENSOL and 457 purposes
- a requirement that 457 visa holders work for at least 2 years with their nominating employer
- a required skills assessment for certain trade occupations if the visa applicant has not worked for his or her nominating employer for 2 years
- an increase in the age limit from 45 to 50, with exceptions in not-yet-announced occupations
- an increase in the English language requirement for all applicants to IELTS 6 unless the applicant is already in Australia as the holder of a 457 visa for at least 2 years or unless he or she is working in not-yet-announced occupations.
3.3 Business Skills
A variety of visas may provide a pathway to permanent residence for businesspeople who have established the required level of business activity in Australia as the holder of a Provisional Business Skills visa. Additionally, the Business Talent visa is a permanent residence visa for high-caliber applicants, without the need to first hold a Provisional Business Skills visa.
State/Territory government sponsorship is highly recommended because the thresholds are lower.
Business Skills visas, whether at the provisional first stage or final permanent residence stage, take at least 12 months to process and include the following applications:
3.3(a) Business Owner
A Business Owner visa is for businesspeople who have operated successful businesses of their own in significant businesses overseas who intend to own a new business, or acquire an existing business, in Australia. This is a two-stage process â holders of Provisional Business Owner visas may apply for permanent residence after a minimum of 2 years and once they have established their Australian business.
This visa is for investors who have an overall successful record of business or investment activities, and significant net assets to invest in a designated investment in Australia for 4 years. This is also a two-stage process – holders of a Provisional Investor visa who have maintained their designated investment(s) for at least 4 years and who have been in Australia for at least 2 of the last 4 years may apply for permanent residence.
3.3(c) Business Talent
This direct permanent residence visa is for high-caliber businesspeople, sponsored by a State/Territory government, who are owners of significant overseas businesses and who have a genuine commitment to participate in the management of a new or existing business in Australia.
3.4 Visa Options for Partners
Partners of Australian citizens or permanent residents may apply for a visa to enter and remain in Australia sponsored by their partner.
An applicant for a Partner Visa must provide evidence of either:
- marriage to Australian citizen or permanent resident; or
- at least 12 months’ cohabitation in a genuine and continuing relationship. The 12-month requirement may be obviated in some States where the relationship has been registered with the relevant State authority.
Applications lodged offshore incur a fee of A$1,995. Onshore applications incur a fee of A$2,960 unless the applicant holds a Prospective Marriage 300 visa, in which case the fee is A$965.