Visa Information

• are actively and lawfully operating in Australia;
• have a policy of employing local labour and non-discriminatory employment practice;
• can meet the prescribed training benchmark in relation to training of Australian employees; (if employers have previously been approved as a SBS, they must have fulfilled previous prescribed training obligations as training is an on-going sponsor’s obligations);
• are directly employing the visa applicants (No on-hire arrangement);
• must propose the number of nominations for the entire sponsorship period;
• are able to meet the prescribed Sponsorship Obligations (including on-going training), and
• the employer has no Adverse Information known to DIBP.

SBS Validity
SBS is generally provided for 5 years (Exceptions - 18 months only for New Start SBS sponsors, and 6 years for Accredited sponsors). As only a limited number of Nominations is given to an approved sponsor, a SBS expires either at the end of the SBS validity period or when the number of approved Nominations has been used – whichever is to occur first.

• New Start (or Start-up) Businesses - Businesses are considered to be New Start (Start-up) if they have been operating (registered) for less then 12 months. The term of sponsorship approval for New Start (Start-up) businesses has been amended to 18 months and all related subclass 457 visa holders sponsored by the New Start (Start-up) businesses are limited to a 18 month visa.

Overseas business sponsors (OSBS)

A business that has no formal operating base or representation in Australia may apply for Overseas Business Sponsorship status to bring employees to Australia to do one of the following:

• Establish a branch or other business activity such as joint ventures, agency distributorship's or subsidiary branches in Australia
• Fulfil obligations for a contract or other business activity in Australia.

Note: Overseas Business Sponsors do not need to be operating in Australia but must meet all other employer eligibility requirements and the sponsorship obligations.

Issues Specific to Overseas Business may include:

• Direct Employer/Employee relationship, salary and superannuation and the related employment terms and conditions are likely to be closely scrutinised by DBP.
• Compliance and monitoring of Immigration and other related Australian laws may also be an issue for DIBP as these employers operate outside Australia.
• Overseas businesses with an Australian related entity (e.g. a subsidiary) cannot apply for Standard Business sponsorship status. Their related entity in Australia must apply for the SBS.
• Overseas Business Sponsors cannot nominate their overseas workers for permanent residence visa (186/187) under the Employer Nomination Scheme.
• Labour Agreement – may be appropriate for large scale projects/lower salary or language requirements.

(2) The Nomination Application requires:  

• the nominated position (job) is listed on the CSOL (Consolidated Skilled Occupation List);
• the position meets the minimum qualifications and skills requirements, and the duties sought must be equivalent to those occupations prescribed in the ANZSCO;
• the position associated with the nominated occupation is genuine - ‘Genuineness Test’
• evidence of Market Salary Rate (MSR) – ie overseas workers receive the same terms and conditions of employment as an equivalent Australian worker;
• Vocational English language proficiency – unless exempt (existing 457 holder will need to meet English requirement);
• the sponsor has no adverse information known to DIBP
• Meet Labour Market testing – unless exempt (LMT will be implemented in November 2013).

(3) The Subclass 457 Visa Application process assesses:

• the appropriateness of the match between the nominated position and the personal attributes / employment background of the 457 visa applicant;
• the applicants must maintain adequate health insurance for duration of stay in Australia;
• the applicant against health and character requirements;
• English language proficiency, where relevant.
• Skills Assessment for certain trades occupations, where relevant.

(4) Monitoring of Sponsorship Obligations

Sponsorship Obligations are enacted in the Migration Act and apply to all approved sponsors by operation of law. The Minister for DIBP must take all reasonable steps to ensure these legal obligations are met by all sponsors. These sponsorship obligations (under s140HA of the Migration Act) now include:

• Paying a market salary rate to a visa holder;
• Paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing former visa holder from Australia;
• Paying prescribed costs to the departure of a visa holder (or a former visa holder) from Australia;
• Complying with prescribed requirements to keep information, and provide information to the Minister;
• Notifying the Department (DIBP)of prescribed changes in the circumstances of an approved sponsor, a former approved sponsor, a visa holder or a former visa holder; 
• Cooperating with the exercise of powers by an inspector;
• Ensuring that a visa holder participates in an occupation nominated by an approved sponsor (including by preventing the on-hire of a visa holder);
• Requiring an approved sponsor or former approved sponsor not to transfer, charge or recover prescribed costs;
• Requiring an approved sponsor or former approved sponsor to continue to meet prescribed training requirements.

Visa holders will be monitored for compliance with condition 8107 (e.g. no cessation of employment), and condition 8501 (maintenance of adequate health insurance for duration of stay in Australia). 8107 has also been amended to require a 457 visa holder to commence work with their sponsor within 90 days of arriving in Australia.

(5) Sanctions for Non Compliance

Non Compliance by Sponsors:

If a sponsor fails to satisfy a sponsorship obligation, DIBP may take the following action:

• Cancel one or more of the sponsor's existing approval as a sponsor;
• bar the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing approvals as a sponsor for different kinds of visas;
• bar the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of sponsor;
• apply to a Court for a civil penalty order of up to AUD $51,000 for a corporation and AUD $10,200 for an individual for each failure;
• issue an infringement notice of up to AUD $10,200 for a body corporate and AUD $2,040 for an individual for each failure;
• require and take security; or
• Enforce a security already taken.

Post 1 July 2013, Enforceable Undertakings is a court-enforceable promise made between the Minister and a sponsor. This is an additional enforcement option where there has been non-compliance. They are designed to be flexible and secure compensation to restore harm resulting from contraventions of the obligation (e.g payment to worker to compensate for underpayments).

Non Compliance by visa holders:

If a visa holder fails to meet a visa condition, DIBP may cancel their visas.

Conclusion
The Migration Amendment (Temporary Sponsored Visas) Act 2013 was enacted by the Parliament on 28 June 2013 to ensure employers only use the temporary skilled visas program to fill genuine skill shortages. Greater investigative and sanctions powers are given to the Department (DIBP) and its inspectors to ensure employers comply with the related laws and obligations governing this scheme.

(Disclaimer: Abacus Visa does not guarantee the accuracy of any information contained in this information sheet. It contains general information and is not a substitute for professional advice).