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Employer Nominated Visa FAQs

05 Oct

 

In this blog, we answer some of the most common questions asked by employers and employees regarding employer nominated visa types.

Employees

Are there any work limitations on the TSS visa?

Yes. A TSS visa holder can only work for their nominating employer, in their nominated position.

 

What if I have been made redundant on my employer nominated visa?

If you hold a Subclass 186 Visa, there are no visa consequences and you are able to find a new employer at your leisure, because you are a permanent resident, with no conditions on your employment.

If you hold a Subclass 187 – Regional Sponsored Migration Scheme (RSMS) visa, there may be visa implications if you have worked for your regional employer for less than two years. We advise that you seek work for the remainder of your two year obligation with another employer in the same regional area if possible.

 

What if I have been made redundant on my TSS visa?

If you decide to leave or are made redundant by your employer, you will have 90 days to find a new approved sponsor and have your new nomination approved before you can start work. The same rules apply if your employment has been terminated or if your employer has gone out of business.

 

What if I want to change careers?

If you decide you no longer want to work in your nominated occupation, you will need to find a sponsor (it can be your existing employer) willing to nominate you in your new chosen occupation and then apply for a new visa.

What if I want to change employers?

If you’re on a TSS visa, it is possible to change employers, but your new employer will need to sponsor you and have their nomination approved before you can start working for them. Keep in mind that your visa will retain the same expiry date. For individuals on the ENS 186 , you may change employers at any time after the visa grant as you are a permanent resident. For RSMS 187 visa holders, however, you have an obligation to remain with your regional employer for at least  2 years or you risk visa cancellation.

 

Why was my employer nominated visa application refused?

The most common reasons that an employer nominated visa is refused include:

  • Refusal of the employer’s nomination.
  • There is found to be no genuine need to source skilled labour for a particular occupation from overseas
  • Failure to meet the health or character requirements
  • Insufficient supporting documentation
  • False or misleading claims made on your application.
  • Providing bogus documents.

 

Can my employer cancel my visa?

No. The Department of Home Affairs is the only body with the power to grant and cancel Australian visas. Your employer has the right to terminate employment or make you redundant, but under the terms of a TSS visa, you will be given 90 days to find a new nominating employer for the same position.

 

How long does an employer nominated visa application take to process?

Generally speaking, it takes a little over 2 months for 90% of most TSS 482 Visa applications to be processed. It takes 19 months for 90% of ENS Visa Applications to be processed and 25 months for 90% of RSMS visas to be processed. The processing time varies further depending on the entry stream.

 

Can I still get PR with my 457 visa?

Yes. If you held or applied for a 457 visa on or before April 18th, 2017, you have the opportunity to apply for permanent residency under the ENS or RSMS visa types through the Temporary Residence Transition pathway. 457 visa holders who meet the criteria are eligible for permanent residency regardless of which current occupation list their occupation falls on. The key requirements to apply for PR through this Temporary Residence Transition (TRT) pathway are:

  • You must be under 50 years of age (there are some age exemptions still available), and;
  • Have been sponsored in your nominated occupation with the same employer for 2 years (there are some exceptions to this rule)

For 457 visa holders who applied for a 457 visa after 18th April 2017, the TRT requirements are different and include:

  • You must be under 45 years
  • Your occupation must be on the MLTSSL list
  • You must have been sponsored in your nominated occupation with the same employer for 3 years

 

What happened to the 457 visa?

In March 2018, the Temporary Work (Skilled) visa (subclass 457 visa) was replaced with the Temporary Skill Shortage (TSS) visa (Subclass 482 visa). For applicants, the Temporary Skill Shortage visa differs from the 457 visa in a few key ways:

  • It has a smaller list of eligible occupations
  • It has two streams: A Short Term Stream where the visa is valid for up to 2 years and a Long Term Stream where the visa is valid for up to 4 years with a pathway to PR, after three years with the same employer.
  • It requires all applicants to have worked at least 2 years in their nominated occupation

 

Can I take maternity leave on an employer nominated visa?

Yes. All employer nominated visa holders have 10 basic entitlements under the National Employment Standards (NES). Parental entitlements cover up to 12 months unpaid leave and the right to ask for an extra 12 months unpaid leave. There are also entitlements for parents going through an adoption process. Visa holders are also entitled to annual leave, paid public holidays, and compassionate leave.

 

If my employer nominated visa is refused, can I apply for another visa type while staying in Australia?

If you are currently in Australia on another valid Australian visa, there are other visa types which you can apply for if your employer nominated visa application has been refused. However, if you are on a bridging visa, this may not be possible. The best way to explore your options in these circumstances (especially if your current visa is due to expire soon) is to get in touch with an experienced registered migration agent or immigration lawyer as soon as possible.

 

Can I withdraw an application?

Yes. You can withdraw an application for any Australian visa type by notifying the Department of Home Affairs any time before they decide on your application. This can be done by sending an email to the Department of Home affairs informing it of your withdrawal (including your full name, date of birth, date of application and file reference number) or filling out a withdrawal of a visa application form. Upload the completed form to your Immiaccount.  Removing your application from your ImmiAccount does not mean it is withdrawn.

 

Can I change from a tourist visa to a TSS  visa?

Whilst you cannot change or convert a visa, you can apply for the TSS visa whilst you are travelling in Australia, although you will need to find a sponsor willing to nominate you and ensure you meet the relevant eligibility criteria.

 

If I am Australia on another visa and are nominated/apply for an employer nominated visa, will I get a bridging visa whilst my application is pending?

Yes. If you have a visa that hasn’t expired when you lodge an application for a new employer nominated/sponsored visa, a bridging visa comes into effect upon the visa’s expiry. The bridging visa is created and actually sits ‘in the wings’ as soon as the new application is lodged, but only ‘comes alive’ once the first visa has expired. The bridging visa is granted for an indefinite period and lasts until the new visa is granted.

 

What wage will I be paid on the TSS visa?

Employees working in Australia on a 186, 187 or TSS visa must be paid a wage above the Temporary Skilled Migration Income Threshold (TSMIT) which is currently AUD$53,900. The proposed salary must also be within the market rate for the role to ensure visa holders are paid a salary equivalent to the salary earned by Australian employees in comparable roles. Some occupations have a “caveat” which sets a minimum remuneration level above the TSMIT.

 

Employers

Can you transfer a TSS visa to another employee who is on a bridging visa?

No, visas are non-transferrable and are granted on a case by case basis. If you no longer wish to nominate an individual, you can withdraw your nomination before the Department of Home Affairs makes a decision and lodge a new nomination application for another individual.

 

How much does it cost to nominate someone?

It costs AUD$330 to nominate an overseas worker. Before you can nominate an individual, you need to become an approved business sponsor, which is a separate application and costs AUD$420. Nowadays an employer must also make a prescribed contribution to the Skilling Australians Fund (SAF) at the time of nomination.

 

What is the Skilling Australians Fund?

The Skilling Australians fund is a levy payable by employers nominating overseas workers through the TSS, RSMS or ENS streams. The purpose of the fund is to contribute to the broader skills development of Australians and needs to be paid in full when a nomination application is lodged. The levy is tax deductible and the amount paid depends on the size of the sponsoring business as well as the visa type.

A small business with an annual turnover of less than $10 million pays:

  • AUD $1200 per year or part thereof for the TSS visa
  • AUD $3000 once off payment for the RSMS and ENS visas

Other businesses with an annual turnover greater than $10 million pays

  • AUD $1800 per year or part thereof for the TSS visa
  • AUD $5000 once off payment for the RSMS and ENS visas

 

Can I create a role in my business for a specific individual that I want to employ?

No. The TSS visa program is designed to address labour shortages for specific occupations where there is no appropriately skilled Australians to fill the position.  There are a number of processes (such as Labour Market Testing) built into the application process to prevent employers creating positions to facilitate a specific individual’s life in Australia if they are not properly qualified for a position or if the business does not have a genuine need for the position.

 

Can I sponsor myself?

Yes, it is possible to sponsor yourself. To do so, you will need to:

  • Register an Australian proprietary limited company (Pty Ltd)
  • Apply and be approved as a Standard Business Sponsor (SBS)
  • Make a nomination for an application, and pay the Skilling Australian levy.
  • Apply for the TSS visa

This is a complicated process with many pitfalls and there are a number of requirements for businesses who want to employ overseas workers. There are other visa pathways available to entrepreneurs which may better suit your circumstances.

 

Why was my Standard Business Sponsor application refused?

The most common reasons businesses fail to obtain Standard Business Sponsor approval include:

  • The business is a start-up or is new and therefore not considered to have an established business structure
  • The business is not lawfully trading or has insufficient cashflow
  • The business has financial issues such as operating losses or a weak balance sheet
  • The Department of Home Affairs considers there is adverse information about the company, its directors or other relevant associated individuals.

 

 

AHWC Immigration Law are here to help you find the right Australian visa pathway for your situation. Our migration agents and immigration lawyers specialise in employer nominated visa types and the TSS visa and will work with you to give your application the best possible chance of success. We have also worked with numerous businesses to streamline their sponsorship and nomination of overseas employees. To learn more about our expertise in this complex area of employer sponsorship, please get in touch with us by calling 1300 887 818 or send us an enquiry.