Question:
Scenario:
You are a registered migration agent and are attending a CPD event. You sit next to Amanda as you have seen her a few times at industry events. You decide to introduce yourself this time.
Amanda quickly asks your opinion on a case as she has not assisted in employer sponsored visas previously and is confused as to what are her client’s visa options. You explain some possible options and she suggests that you take on the file, because she is also family friends with this client and is finding it hard to manage them as they can be demanding at times.
You quickly agree and Amanda tells you she will send some background information to you via email once the client consents to this and agrees to see you.
You are quite proud of your networking skills as you have possibly secured yourself a new client.
You receive an email from Amanda the next day, an extract is below:
“Hi,
The client, Patrick Macgyver and his business partner, Maxwell, have consented to provide you this information and would like to meet with you this week!
They run a successful import/export company – I am not sure if you have seen the small backpacks all the fashionable students wear now but they are responsible for importing them into the country. Business has expanded and their recent turnover was in excess of AUD10,000,000.
They are considering sponsoring two possible employees from overseas:-
1. Belinda, who is a qualified Sales and Marketing Manager with over ten years’ experience:
(a) Is 38 years old
(b) Currently living in New York – met Patrick and Maxwell while on a business trip last month.
(c) Has a husband and two kids under 18 who would migrate with her as well.
2. Greg, who is a qualified Management Accountant with over 6 years’ experience:
(a) Is 32 years old
(b) Currently living in Shanghai – met Patrick and Maxwell while on a business trip last month.
(c) Does not have any kids and is not currently in a relationship.
Patrick and Maxwell will not consider any temporary sponsorship options as I have already informed them of possible sponsorship obligations which would apply if they do. They are of the view that it is unnecessary and a waste of time and are confident that anyone they sponsor for a permanent visa will remain in the company as they treat their employees very well.
They would like to know whether there are any permanent employer sponsored visa options for their company to sponsor Belinda or Greg. They would like clear, practical advice. I can tell you from firsthand experience that if there are no options, they are happy to be advised of this but do not want irrelevant information. They do not want to know about any other visa options, such as general skilled migration at this stage. If there are any employer sponsored permanent visas, they would like to know the requirements for both the company and the potential employee as applicable to the facts.
Task 1
Prepare a comprehensive letter of advice for Patrick and Maxwell outlining any visa options to sponsor Belinda and Greg and the requirements for both the employer and employee, including what evidence and further information you would require to support the application.
You must support your answers with reference to the specific legislative or regulatory provisions.
Scenario Continued
If Patrick and Maxwell can sponsor Belinda and Greg, they want to know whether they can include in their respective employment contracts, a clause that they will deduct 5% of their wages to cover your professional fees and any Department of Home Affairs fees until the total fee is recouped.
Task 2
What would you advise Patrick and Maxwell about their query and why?
Your answers must be supported by references to relevant legislative and/or regulatory provisions.
Answer:
Immigration Law-Australia’s visa system
Q 1.
There are various visa sponsoring options for employees by employers. Of course, these are the permanent sponsorship options. They are termed as Employer Nomination Scheme (Subclass 186) and the Regional Sponsored Migration Scheme (Subclass 187). These visa options allow skilled workers who are nominated by their employer to live and work in Australia permanently. They differ depending on the requirements that both the employer and employee have met. These nominations must be carried out in accordance to regulation 5.19 of the Migration Act 1994.
Subclass 186 Visa
For the Subclass 186 visa, there are basic eligibility requirements to be met;
- The applicant is expected to have the necessary skills for the job that they are being sponsored for.
- The applicant must be nominated by an Australian employer.
- The outlined health and character minimum requirements must be met by the sponsored applicant.
Attainment of this visa consists of two processes, – where first the employee is nominated by his employer and after which he is to make an application for a visa. The Subclass 186 visa requires that the employing business be assessed and meet the necessary requirements. In addition, the applicant must meet the English language requirements which are IELTS or any other equivalent test, score of at least 6 in each.
The employee occupation must also be among the occupations contained in the Migration (LIN 19/049: Specification of Occupations and Assessing Authorities—Subclass 186 Visa) Instrument 2019. This is a legislative instrument made by the Minister for Immigration, Citizenship and Multicultural Affairs on the 5th of March 2019. it contains all the occupations that are considered to be skilled and merit application for employer nominated visa by foreign employees.
It is important to note that the employee seeking sponsorship must have documentation to confirm that he underwent assessment and their skills pronounced suitable fort the occupation they are in. This assessment is to be carried out by the suitable authority before they make the application for the visa. An assessment that is conducted after the application was already made will be deemed invalid.
This visa is also comprehensive of three aspects of visa schemes. They include the 1. direct entry stream which requires the employee to be nominated by an an Australian employer, his occupation be on the LIN 19/049 list and have at least competent English.
- The Labor Agreement Stream which basically requires the employer to be in a labor agreement.
- Temporary Residence Transition Scheme that requires one to have a bridging visa A, B or C, worked full time for at least three years and nominated by an Australian employer.
Greg’s occupation as a management accountant falls under the list of skilled occupations under ANZSCO Code 221112 and he is therefore eligible for nomination and application of this visa. His skills are to be assessed by either CPAA, IPA or CAAANZ as stipulated by section 7 of LIN 19/049. he qualifies for direct entry stream visa upon nomination by the employer and application of the visa.
Belinda’s position as sales and marketing manager, however, is not among the subclass 186 skilled occupation list and apparently she cannot qualify for the Subclass 186 visa.
Subclass 187 Visa
This is a permanent residence visa that employers in regional Australia can use to employ migrants and their families to fill labor needs in areas within the stipulated regions. The visa can be granted to both applicants that temporarily reside in Australia and those that live outside Australia.
The basic requirements for one to be eligible for the Regional Sponsored Migration Scheme visa, ;
- One must be nominated by an approved Australian employer in regional Australia.
- The employee must be below 45 years of age
- The employee must achieve the stipulated skills requirements and English language stipulated requirements.
This visa encompasses two aspects; the direct stream approach and the temporary residence transition scheme. With the temporary residence transition scheme, the applicant can live and work in Australia indefinitely, sponsor eligible family members to come to Australia and apply for Australian citizenship if one qualifies. For one to qualify for this type of visa however, they must have worked for their employers full time for three years with a subclass 457 or TSS visa and also have a bridging visa A, B or C or any substantive visa. Amid these qualifications, one must be nominated by an Australian employee and approved by the minister 6 months before application.
The direct stream was closed as from November 2019 and replaced by Subclass 494, the Skilled Employer Regional Provisional Visa.
This new visa comes with several conditions;
On part of the employer, he must be located in any stipulated area of the regional Australia; any other place but Melbourne, Sydney and Brisbane. It requires that an employer sponsor the visa. The Regional Certifying Board must provide advice on the employer nomination before it can undergo departmental approval. The employer must also meet the Australian Minimum Salary Rates and must be above the Temporary Skilled Migration Income Threshold which is currently at $53,900 and 9.5% superannuation. It requires that the said occupation position have a likelihood of existence for 5 years. In other words, the employee must have an assured employment contract for at least 5 years. The occupation must be within the eligible occupations list stipulated for this visa.
On part of the employee, he is required to have competent English at the time he applies for the visa. The employee must have at least three years full time experience in the nominated position and at the skill level that is mandatory for the particular occupation. The two positions you want to employ in both require skill level 1 as stipulated in the occupations list. The visa requires that the position be a full time one. The visa stipulates that the sponsored employee will work in the sponsored occupation position and only that one and only work for the nominating employee. It requires that the sponsored employee commence their work within 90 days of the granting of the visa. The sponsored employee must be below the age of 45 years. The nominated employee must undergo proper skill assessment by the authorized assessing authority. In this case, the AIM for the position of sales and marketing manager and CPAA or IPA or CAANZ for the position of management accountant.
This visa is valid for 5 years and failure to adhere to any of the stipulated conditions may result to the visa being revoked.
This via also has the option of sponsoring of the spouse and minor children of the employee with fees applicable to each separately.
Successful holding of the Subclass 494 for a consecutive three-year period then qualifies the applicant for the permanent visa Subclass 191, Permanent Residence Skilled Regional visa. One must also have met all conditions of the previous visa, met all taxable stipulations and can show evidence of the minimum rate earnings for the past three years. A party’s spouse can also be eligible for the Subclass 191 visa if they can meet the said requirements.
In order for a party to make alterations to a contract, both parties must be in agreement of the terms proposed to avoid repudiation. It is therefore advisable to consult and inform the employees of the proposed pay cuts before attempting to pursue the same.
Q 2.
The first step of action would be to employ both Greg and Belinda as official employees of the company to make the nomination process of attaining the visa easier. The visas require a party to be nominated by an Australian employer and currently that is not the case for Greg and Belinda.
Comparing the two approaches
As it was noted, Belinda would not qualify for the Subclass 186 because her position is not included among those that qualify that type of visa. The other two subclass 186 approaches are also not suitable; the company has no mentioned labor agreement and both parties are not in possession of any bridging visa nor do they have any temporary visa 457 or TSS. The Subclass 186 therefore would not be a suitable option for the company as it would require two separate applications for the to be employees. This may attract unnecessary costs and may prove to be hectic for the company.
Both employees are therefore also disqualified for the Subclass 187 transition scheme approach given the circumstances antecedent named. The alternative therefore to sort out the situation of both employees at one go would be the direct entry stream that was replaced by the Subclass 494 provisional visa. This is because both the employing company and the employees meet most of the outlined requirements. Greg’s occupation is outlined in the occupation list ANZSCO Code 221112 and Belinda’s position is also outlined in the list under ANZSCO Code 131112. Greg is set to undergo assessment by the CPAA, IPA or CAANZ whereas Belinda will be assessed by the A.I.M, which are the suitable assessing authorities.
Belinda and Greg have over 10 and 6 years of experience respectively in their areas of expertise. Their years of experience in their respective fields also surpass the required threshold which was stipulated as 3 years. The skill level required for both occupations is skill level 1 which is to be proved upon assessment. The employees have also met the age limit which is set at 45 years and below, Belinda and Greg are 38 and 32 years old respectively.
The employing company should be within the regional Australia except the areas stipulated by the regulation. The company has a long-term full-time employment goal for the two parties set to be employed, this is in line with the visa requirement that the contract of employment be of at least 5 years. The company therefore should set out a contract of employment that is at least five years long to meet the stipulated threshold. The company having grown should therefore see no trouble meeting the minimum market rate salary paid to the employees of the given occupations.
The remnant conditions are minor and uncomplicated and can be met with relative ease. The employees are international working persons since they met the company officials in an overseas business trip and will undoubtedly meet the English language stipulations. One, Greg, is a resident of the United States of America, English being the national language, should have no problem on the language test.
Upon granting of the visa, Belinda and Greg should commence working within 90 days. They are to work only as sales and marketing manager and management accountant and nothing else. Any alterations to this arrangement need to be documented and the Home Affairs department be informed promptly. The employees should ensure that they do not seek alternative employment from other persons during their stay in the country. If a case is to so arise that the employment is terminated, the parties, Greg and Belinda have a maximum 90 days to re-evaluate their sponsor details and change them to their new employer. The employees should adhere to all tax regulations and laws of the land during their stay in the country.
This visa also caters for spouses and family of the nominees that would like to live, work or study in Australia. This suits Belinda’s situation as she can migrate with her husband and children.
Once they have worked for three consecutive years, having met all the stipulated conditions and not having their 494-visa revoked, the nominees can apply for permanent residence visa Subclass 191 if they so wish. Belinda’s husband and kids also qualify for the 191 visa as a result and they can apply, and their children applied for the visa if they so wish.
The subclass 494 provisional visais an emergence of the Subclass 187, which means it is a permanent residence visa that is complemented by the subclass 191 and the employer is at a duty to sponsor only the 494. Upon successful granting of the subclass 494 to the nominees, the company is deemed to have completed its duty and has successfully sponsored the employees on permanent residence grounds. Their seeking of the subclass 191 visa is therefore at their own cost and convenience.
The most suitable visa to cater for permanent residence for the two employees is the Subclass 187 Regional Sponsored Migration Scheme, direct entry stream which is now Subclass 494 Skilled Employer Sponsored (Regional) complemented by Subclass 191 Permanent Residence (Skilled Regional) as it caters for the sponsorship of both employees at one instance and is therefore fast and cost effective on the company.
I would advise you take this approach.
Bibliography
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