Migration

Shortage of skilled workers? Considering employing overseas skilled workers?

There are different types of visas available for employers who wish to employ overseas workers. Some are permanent visas, others are temporary visas. By sponsoring employees for these visas, an employer can secure the employment of the skilled workers from overseas.

This is a summary of the types of employment related visas.

Permanent visas

Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS)

Where there is a shortage of skilled workers within a business, employers are able to nominate a position for overseas residents who meet the requirement for the position under ENS or RSMS. Once a visa is granted, the holders of ENS visas or RSMS visas are able to stay and work in Australia permanently.

• RSMS visas

RSMS visas are available where an employer’s business is established in areas other than Brisbane, the Gold Coast, Newcastle, Sydney, Wollongong, Melbourne or Perth. For details of eligible post codes, see http://www.immi.gov.au/employers/rsms_postcodes.htm.

The position must be a full-time position and the nomination of the position must be approved by the relevant regional certifying body. The occupations available for RSMS visas are not specified by the Minister of Immigration and Citizenship (Minister) however, they must be occupations requiring at least an Australian qualified trade, a diploma or higher education unless exceptional circumstances exist.

• ENS visas

The employer must be a business lawfully and actively operating in Australia. Unlike RSMS visas, the employer must nominate a position that is an occupation listed on the Employer Nomination Scheme Occupation List (ENSOL) prescribed by the Minister from time to time. The minimum salary is also specified for each occupation. For current ENSOL, see http://www.comlaw.gov.au/Details/F2011L01228.

To be eligible for this visa, the employee must meet one of the following requirements:

• work experience in Australia for at least two years including at least 12 months with the nominating employer;
• nominated to fill a position with a base salary of more than $250,000 (subject to change); or
• skills assessed as suitable by the relevant skill assessing authority and have at least three years’ work experience in the occupation.

Processing time for an ENS or RSMS visa varies from time to time depending on departmental workloads but is normally within four months of the lodgement of an application.

Temporary visas

Business Long Stay visa subclass 457 (457 visa) – standard business sponsorship

The 457 visa is a temporary visa that allows Australian and overseas businesses to sponsor overseas workers to work in Australia. The 457 visa is valid for a period of up to four years and may be renewed. Many business sponsors also utilise this visa as an initial step to secure an overseas employee in a hope of keeping the employee permanently by applying for a permanent visa, such as an ENS visa, at a later stage.

There are three steps in the application process:

• sponsorship application;
• nomination of a position; and 
• visa application.

The nominated occupation must be one of the occupations specified by the Minister from time to time. For the current occupation list for the 457 visa, see http://www.comlaw.gov.au/Details/F2011L00246. The minimum salary is $47,480 (as of 23 March 2011).

Processing time may vary but is now between two and three months from lodgement of an application, depending on the applicant’s citizenship.

Labour agreement

Occupations not listed on the occupation lists for 457 or ENSOL, and not eligible for RSMS visas may be eligible for a labour agreement. A labour agreement is an agreement with the Australian government to recruit a number of overseas workers. Labour agreements are also available for on-hire businesses. Once in place, the employer may employ overseas worker in accordance with the agreement during the specified term.

For more information, please consult with our migration law team on 07 3231 2400 for the detailed information and criteria.

David is a partner in Cooper Grace Ward’s corporate and commercial workgroup. He has extensive experience in company law and practice competition and consumer law (formerly Trade practices law). He is a Foundation Fellow of the Australian Institute of Company Directors, a Fellow of the Australian Institute of Management and a Director of Indue Limited and the Chairman of its Corporate Governance Committee.

Having held past positions on public company boards, he has a commercial approach to legal problem solving.

David has delivered many papers on Corporations Act issues, the Competition and Consumer Act and on corporate governance.

His board experience includes service on audit and risk committees of public companies and as Chairman of the operational risk management committee of one public company and of the Corporate Governance Committee of another. With this experience he understands the need for companies to be managed with clear direction and efficiency.

As a lawyer he has had extensive experience in commercial and corporate matters and advises extensively on the duties and responsibilities of directors and officers. His work includes mergers and acquisitions, capital raisings, directors’ duties, joint ventures advice on strategies for corporate goals within a legal framework, compliance strategies and general commercial documentation.