Subclass 457-Business (Long Stay) visa program

WTO Mode 4 Symposium, Geneva

Linda Mortensen, Regional Director EuropeDepartment of Immigration and CitizenshipAustralian Government

• Australia’s WTO commitments on Mode 4 are based on the sub-class 457 visa.

• Most service suppliers take advantage of Australia’s trade commitments by securing a 457 visa (others obtain a 456 visa).

• The 457 visa was not designed to facilitate trade in services: but the program is open, non-discriminatory and used by very large numbers of service suppliers.

Australia’s trade commitments

Subclass 457 visa program

The Subclass 457-Business (Long Stay) visa program is for businesses seeking to recruit skilled persons from overseas for temporary entry into Australia for periods between 3 months and 4 years.

• Demand driven employment visa (visas holders come to Australia to fill specific positions not to look for work)

• Economic benefits for Australia, and also for sending countries

• More responsive and better targeted to employer needs than any other Australian visa category

Subclass 457 visa program

ResponsivenessSkill Stream (permanent) and Temporary Skilled Outcome vs Total

Unemployment in Australia

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1. Sponsorship – assess the suitability of the business to be a sponsor

2. Nomination – identify the position the business requiresto fill and skills/experience required.

3. Visa Application – assess the suitability of the overseas worker’s skills and attributes to fill the nominated position

4. Monitoring – sponsor and visa holder are monitored after arrival to ensure the Sponsorship Undertakings are being met.

Four stage process

Step 1: Sponsorship

The Business must seek approval to sponsor an overseas employee.

• Business must be actively and lawfully operating and be the direct employer of the overseas workers

• Must be of benefit to Australia• Must have a commitment to train Australian workers or be

introducing new technology• Must be in a position to fulfil sponsorship undertakings

Sponsorship approvals are for a specific number of visa holders and can be valid for up to two years.

Sponsorship undertakingsThe business sponsor must agree to meet certain sponsorship undertakings, including:

• Paying a Minimum Salary Level (MSL)

• Complying with Workplace Relations laws

• Their employees being properly licensed or registered, where

required

• Meeting certain costs of the visa holder, such as health costs in

a public hospital

• Paying tax and superannuation, as required under Australian law

• Complying with immigration laws

Step 2: Nomination

The business identifies the position to be filled by the overseas employee/s, and the skills and experience required for the position.

• This position must be of the “Gazetted List of Occupations” which is drawn from Australian Standard Classification of Occupations (ASCO) major groups 1-4.

• The nominated position must meet the Minimum Salary Level requirement.

• The visa holder must possess the necessary skills/qualifications.

Step 3: Visa Application

Assesses the suitability of the overseas worker

• The skills, qualifications and employment background must match the position on offer.

• Need to meet English language requirements, unless exempt.

• Applicant and their dependents must meet other requirements for immigration such as health and character.

Monitoring

Ensures that the sponsor is complying with the

sponsorship undertakings by performing targeted

monitoring.

If breaches of the sponsorship undertakings

are found, sponsors may be:

• Formally warned

• Barred for a period of time from using

the program

• Cancelled

Monitoring

Managing the program

Managing the Subclass 457 program poses two critical and potentially competing challenges:

• remaining internationally competitive in facilitating movement of skilled and semi-skilled persons, in the context of Australia’s changing demographic and skill needs, and in meeting international trade commitments; and

• safeguarding employment and training opportunities for Australians and protecting overseas workers from exploitation.

• Exploitation

• Undercutting Australian wages and work conditions

• Parallel industrial relation system for overseas workers

• Red tape, rules non-transparent and difficult to comply with

Key Concerns

‘The Rudd Government is committed to ensuring the 457 visa scheme operates as effectively as possible in contributing to the supply of skilled and semi-skilled workers while protecting the employment and training opportunities of Australians and the rights of overseas workers.’

http://www.minister.immi.gov.au/media/media-releases/2008/ce01-buget-08.htm

Government’s position

Inter-Departmental Committee

(DIAC, DEEWR, Treasury, DFAT, Finance, PM&C)

Skilled Migration Consultative Panel (State governments, unions,

industry)

Broader stakeholders (other government agencies,

visa holders, employers, welfare groups etc)

Independent

457 Integrity Review

Ms Deegan

Deputy Prime Minister and Minister for Immigration and Citizenship

JSCM report

COAG/CSWP report

ERG report

Key:

ERG = External Reference Group report – April 2008

JSCM = Joint Standing Committee on Migration report “Temporary visas… Permanent Benefits” – August 2007

COAG/CSWP = Commonwealth State

IDC report - arising from the Council of Australian Governments’ and the Ministerial Council on Immigration and Multicultural Affairs initiated review of temporary skilled work visa arrangements

Reform process

• Sponsorship and mobility• Distinguishing good employers from bad

employers• Determining market salary rates• Responding to demand for visas for less

skilled persons and labourers• Pathway to permanent residence• Welfare of visa holders

Key Challenges

The key objective of the reform agenda is to make the program more responsive to employer needs, while protecting the employment and training opportunities of Australians and the rights of overseas workers.

Compliance approach:Transparent rules that are easy to comply with; High cost to those who do not comply.

Objective and approach

Subclass 457-Business (Long Stay) visa program

WTO Mode 4 Symposium, Geneva

Linda Mortensen, Regional Director EuropeDepartment of Immigration and CitizenshipAustralian Government

Thank you.