The 457 visa
As the most commonly applied for and granted visa program for skilled workers to obtain sponsorship and employment in Australia, the 457 visa program allows for employment of up to four years.
The sponsoring employer can be either an Australian or overseas business with available nominated skilled positions in Australia. A 457 visa can be transferred to a new employer, without lodging an entirely new application, as of 14 September 2009.
Am I eligible?
To apply for a 457 visa as an employee, your application must follow that of your sponsoring employer. To be considered for a 457 visa, you must meet the following criteria:
- You must be sponsored by an employer to fill a nominated position
- You must have skills, qualifications, experience and an employment background which match those required for the position
- You must have English language skills equivalent to an average band score of 4.5 across the four test components in an International English Language Testing System (IELTS) test, or higher. You may also be required to demonstrate these skills through a formal test
- You must be eligible for any relevant licences or registration required for the nominated position
- You must demonstrate that you are to be paid at least the minimum salary level that applies at the time a decision is made on your visa
- You must apply for the 457 visa from outside Australia, unless the last visa you held is on the prequalifying list
- You must meet all health requirement as set out by Information Form 1163i
- You must meet all character requirements
- If you are in Australia at the time of application, you must not have prohibitive restrictions or limitations placed on your current visa
- You must, if over the age of 18, be willing to declare your respect of Australian values and adhere to Australian law
- You must have private health insurance
- You must pay all relevant non-refundable application fees
What are the sponsor’s responsibilities?
As of 14 September 2009, all sponsors of Subclass 457 visa holders are required to pay their overseas workers market salary rates. The introduction of these market salary rates is part of a wider package of changes to the 457 visa program designed to ensure that it continues to provide industry with needed skills, while not undermining local training and employment opportunities or exploring overseas workers.
Where there is an equivalent Australian in the workplace, the market salary rate is determined by the industrial arrangements that apply to this worker, such as collective agreement, award, award conditions with over award salary rates, and common law contract.
Where there is no Australian performing equivalent work in the same workplace, the employer may demonstrate the market rate by reference to the applicable modern award or collective agreement.
If there is no award of collective agreement, it is the employer’s obligation to provide a range of evidence to substantiate the market salary rate. Such evidence can include remuneration surveys, published earnings data or evidence of what employees are paid in similar workplaces.
As of 14 September 2009, business sponsors are also required to have a training benchmark. Sponsors will be required to meet one of the two following options:
- Payment to an industry training fund of at least 2% of payroll
- Expenditure of at least 1% of payroll on training of employees
One other change to the 457 visa is the removal of the sponsor’s obligation to pay for the employees health costs.
Employers no longer need to prove that the employment of a migrant on a 457 visa contributed to employment of Australians, trade in goods & services, competitiveness of an Australian business sector or links with international markets.
The Temporary Skilled Migration Income Threshold
The Australian government has introduced the Temporary Skilled Migration Income Threshold (TSMIT), effective as of 14 September 2009. This threshold is intended to ensure that all 457 visa holders have sufficient income to independently provide for themselves in Australia and do not impose undue costs on the community or find themselves in circumstances which may put pressure on them to breach their visa conditions. Currently, the TSMIT is $45,220 per annum.
Subclass 457 nominations and the TSMIT
Please note that the TSMIT has no bearing on what the 457 visa holder should be paid in the workplace. In most cases, a nomination under this subclass visa program will be refused if the market salary rate is below the level of income mentioned above.
It is also not possible for a sponsor to inflate a nominated worker’s proposed salary in order to pass or meet the TSMIT requirement. It is the market salary rate for the nominated position that is compared to the TSMIT. For example, if the market salary rate is $39,500 – that is, the market salary rate amount that is paid to equivalent Australian workers in that particular workplace – then the nomination would normally be refused, as the salary is below the TSMIT.
Even if the sponsor decided to offer the nominee a salary $45,220, then the nomination could still be refused, as it is the market salary rate that the Department of Immigration and Citizenship (DIAC) will compare, not the actual salary proposed.
When the nominated salary is above $180,000 (which equates to the threshold for the top personal income tax rate), Subclass 457 nomination applications are not required to provide evidence that this salary is set according to a market salary rate.
Transitional arrangements for existing visa holders
The Australian government has made transitional arrangements for current sponsors and visa holders. These arrangements ensure that sponsors currently paying the existing Minimum Salary Level (MSL) to 457 visa holders already in Australia have until 1 January 2010 to move to paying market salary rates.
Until then, sponsors must continue to pay existing visa holders a salary that is not less than the MSL set out in the relevant legislative instrument and that the base rate of pay is not less than the prescribed salary levels, especially where the market salary rate would otherwise be below the MSL. There are five such levels:
$81,040 for Subclass 457 visa holders who benefit from the English language exemption
- $55,725 for Subclass 457 visa holders working in Information and Communication Technology (ICT) occupations who were granted their visa under certified regional employment arrangements
- $61,920 for all other Subclass 457 visa holders working in ICT occupations
- $40,705 for all other Subclass 457 visa holders who were granted visas under certified regional employment arrangements
- $45,220 for all other Subclass 457 visa holders
Please note that these transitional arrangements will no longer apply if an existing Subclass 457 visa holder applies for a new visa in the same category, changes their employer sponsor, or is the subject of a new nomination varying their occupation.
For those whose market rates are lower than the present MSL, the transitional arrangements have a safety net requiring sponsors to pay at least the minimum salary level for the duration of the existing visa.
Subclass 457 by the numbers
The DIAC has recently released its summary report on this visa category for the financial year to 30 June 2009.
According to the report, the Healthcare industry received the largest number of skilled migrants through the Subclass 457 category, with 9,480 visas granted in 2008-09 (18.7% of the total of visas granted in this category). The second sector to benefit was the construction industry, which received 5,540 new skilled workers under this category.
In terms of occupation, registered nurses received the largest number of visas in this category, with 3,859 RNs entering Australia in 2008-09 with a 457 visa. Computing professionals NEC were the second occupation receiving the largest number of migrants.
Most foreign skilled workers that entered Australia with a Subclass 457 visa in 2008-09 moved from the UK (11,440 or 22.6% of the total) and India (7,420 or 14.6% of the total).
Is it right for me?
With a 457 visa you can work in Australia for a period of three months to four years, depending on the specifications of your visa. You may bring any eligible secondary applicants with you, who may work and study if they choose, and you may enter and exit Australia without restriction.
The Australian Government Department of Immigration and Citizenship has outlined the responsibilities of employer and employee with regard to the 457 visa in the table below:
Who |
Responsibility |
|
Employer |
• apply to be a sponsor to recruit overseas workers |
|
Employee |
• accepts the offer of employment from the employer |
Changes in your employment
If your employment contract ends before your visa expires, you must notify the Department of Immigration and Citizenship immediately. If you cannot find another employer willing to sponsor you, you are required by Australian law to leave the country within 28 days of your employment’s end.
Holders of the 457 visa can change employers without needing to apply for a new visa. All you need is for your new employer to lodge a nomination and you can start working for them once the nomination is approved.
If you cease employment, as a 457 visa holder, you will need to find new employment in 28 days.
How to apply
The 457 visa requires a three-step application process. First, the employer must apply to be a sponsor. Then, the employer must nominate a position to be filled. Once the sponsorship and position have been approved, the potential employee may apply for the visa.
