The contents of this article are correct as at 15 May 2016.
For Standard Business Sponsors, it is a requirement that the nominated occupation (for the purposes of a 457 nomination application) must be a position within either:
- The business of the Sponsor; or
- An “associated entity” of the Sponsor
Under immigration law, “associated entity” has the same meaning as section 50AAA of the Corporations Act 2001 (Cth). This includes but is not limited to related body corporates, where one body corporate may be the holding company or subsidiary of another body corporate.
If an overseas worker is sponsored for a 457 visa to work within an associated entity of the Sponsor, it is critical that the two entities remain “associated entities” at all times whilst the person is sponsored for a 457 visa by the Sponsor. The overseas worker may work for either the Sponsor or an associated entity of the Sponsor in their nominated occupation. Note that if the duties and responsibilities of an overseas worker changes (e.g. through a change of role or promotion) then it may become necessary to renominate the overseas worker for the appropriate ANZSCO occupation.
The only exception to the above is if the overseas worker is nominated for the occupations of Chief Executive or Managing Director (ANZSCO 111111), Corporate General Manager (ANZSCO 111211), or certain medical practitioner occupations. In this case, the overseas worker may work in their nominated occupation for any number of Australian organisations.
Subclass 186 and 187 – Direct Entry stream
For permanent residency applications under the Direct Entry stream of either the Employer Nomination Scheme (subclass 186) or the Regional Sponsored Migration Scheme (subclass 187) visa programs, the position must be within the organisation’s business, as the position must be under the Nominator’s direct control. It is not possible for an organisation to nominate an overseas worker to work for an associated entity under this pathway.
Subclass 186 and 187 – Temporary Residence Transition Stream
To apply for permanent residency through the Temporary Residence Transition stream, the Australian organisation must provide evidence that the visa applicant:
- (For those nominated as Chief Executive or Managing Director, Corporate General Manager, or certain medical practitioners):
- Has been employed in the occupation which they were nominated, on a 457 visa, for a total period of at least 2 years in the 3 year period immediately before lodging the nomination application.
- (For all other occupations):
- Has been employed in the position which they were nominated for, on a 457 visa, for a total period of at least 2 years in the 3 years immediately before lodging the nomination application (excluding any unpaid leave); and
- The employment in the position has been full-time and undertaken in Australia.
For those applying under the non-exempt occupations, the position is linked to that which was approved for 457 visa purposes. Accordingly, it follows that the position to be nominated for permanent residency under the Temporary Residence Transition stream can be within either the business of the Sponsor, or an associated entity of the Sponsor (see above).
However, employers and visa applicants should note that the Immigration Department will also assess whether the 457 visa holder has been employed in the same nominated position for at least 2 years in the 3 years immediately prior to lodgement. The Immigration Department will consider whether the visa holder’s employment:
- Has been in the same role; and
- Has been with the same employer; and
- Has been in the same location
Employers and visa applicants should be mindful of any changes or differences between the 457 and 186/187 nominated positions, including (but not limited to) the employing entity, remuneration structure, terms and conditions of employment, duties and responsibilities, reporting lines and relationships, and differences in the local job market between different locations (for example, if the visa applicant has worked at different offices in different locations around Australia).
It is important to note that the Immigration Department assesses the above on a case-by-case basis.
If you have any queries in relation to employer nominated or sponsored work visas, please click this link to contact Visa Lawyers Australia.
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