Australian employers seeking overseas employees

There are a number of arrangements available to Australian employers and businesses that cannot find suitably skilled employees locally. Australian businesses may recruit staff from overseas on a temporary or permanent basis.

Visas granting temporary residence for a period of up to 4 years to employees recruited from overseas are available under the following arrangements:

Approved business sponsors

Visas granting permanent residence are available under the following categories:

Employer Nomination Scheme

Regional Sponsored Migration Scheme

Temporary overseas employees

Business Sponsorship arrangements

Australian businesses can employ overseas employees in Australia on a temporary basis for up to four years, if the employer has been approved by DIAC as a Business Sponsor under the business sponsorship scheme.

Business sponsorship

An Australian business may apply to the Department of Immigration and Citizenship (DIAC) for approval as a Business Sponsor, i.e. a business which is eligible to employ suitably skilled overseas employees to fill a certain number of pre-approved positions in Australia.

Sponsorship requirements

Employers are required to show that:

• The business is a lawfully and actively operating business. New businesses can be considered if there is clear evidence of intention to establish the business.
• The applicant for sponsorship must be the direct employer of the employee. In the case of corporate groups, a head company may be a sponsor, with a subsidiary being the direct employer.
• The business has a satisfactory record of compliance with immigration laws;
• The employment will be of benefit to Australia;
• The business operations will introduce, use or create new or improved technology or business skills. Alternatively, the business should have a satisfactory record of or demonstrate a commitment to training Australian citizens in their business operations.

Sponsorship Undertakings

The business is also required to undertake several sponsorship obligations in relation to overseas employees including, but not limited to:

• Complying with the tax and superannuation obligations relating to employment;
• Complying with industrial relations laws and conditions of employment; and
• Accepting financial responsibility for medical and hospital costs incurred by sponsored employees, directly or through insurance arrangements.

The business must be prepared to provide information to DIAC on an ongoing basis to show that it is complying with its sponsorship undertakings and may be subject to a site visit by DIMA to monitor compliance.

Nomination of positions to be filled from overseas

Simultaneously with the business sponsorship application or during the 2 years after approval as a business sponsor, the business will then apply to DIMIA for approval of  the positions it needs to fill from overseas. Only occupations which are listed from time to time in the Government Gazette for this purpose can be nominated.

Employers apply for approval of the number of positions they intend to fill from overseas at the time of lodging the Business Sponsorship application. Some also nominate the positions at that time, but other employers nominate the actual positions on a case by case basis until the number of pre-approved positions has been filled.

The employer must explain to DIMA how Australia benefits from the employment of these overseas employees. The employer may need to demonstrate to DIMA that a training program is in place to train Australian employees for such positions or that the overseas employees will introduce new technology or business skills.

Business sponsorship is valid for the shorter of 2 years or until the number of nominated positions have been filled.

The positions to be filled must be skilled occupations which are gazetted for this purpose at the time a nomination is lodged with DIAC. Employees must be paid a minimum gross salary specified in the Government Gazette from time to time. This level changes from time to time and should be checked before any application is lodged.

The requirements as to salary level and skills may be waived if the business is located in a regional or low growth area of Australia and a Regional Certifying Body has certified the nomination (i.e. certified that the position cannot be filled from the local labour market.

Employers must comply with the sponsorship requirements and sponsorship undertakings .

Regional employers can apply for a waiver of the minimum salary requirements and can also nominate employees for a much greater range of occupations than employers located in the urban centres of Australia.

How we assist Australian business sponsors

If you are a business seeking to bring overseas employees to Australia we will assist you with all or part of the 3 phase business sponsorship application process:

(1) A comprehensive application for approval as a business sponsor is required, supported by documentary evidence that the business complies with all the sponsorship requirements and is prepared to make the sponsorship undertakings ;

(2) The employer must apply for approval of each position to be filled from overseas - a nomination application must be prepared and lodged listing all the positions to be filled from overseas and the skills and experience required to fill those positions – the positions must all be skilled occupations suitable for nomination;

(3) A visa application for each nominee employee must be prepared and lodged for a Temporary Business (Long Stay) visa. The nominee's qualifications, skills and experience must match those specified for the nominated position.  The nominee and his/her family members must each comply with health and character requirements and may each be required to undergo a chest X-ray and medical examination.

Contact us if you wish to recruit temporary employees from overseas for your business activities in Australia.

Permanent visas for overseas employees

There are two main schemes used by employers to bring overseas employees to Australia on permanent visas - the Employer Nomination Scheme and the Regional Sponsored Migration Scheme.

Employer nomination scheme

The Employer Nomination Scheme (ENS) can be used by any Australian company or business which complies with the conditions of the scheme for 1 or more appointments from overseas.

The employer does not have to be an approved business sponsor or subject to a Labour agreement.

The ENS is therefore suitable for employers of all sizes that have specific skills requirements which cannot be filled from the Australian labour market.

The ENS consists of a 2 stage process being:

Stage 1: Nomination by the employer

The nomination must demonstrate a need for a paid, highly skilled employee for a full-time permanent position or for a term of at least 3 years.

Recent changes to the scheme implemented in March 2005 mean that the employer no longer has to demonstrate that it has unsuccessfully advertised the position in Australia for a certain period of time.  However, whereas previously an employer could nominate any skilled occupation under the ENS, after March 2005 the occupation must be on a list published in the Government Gazette for this purpose. 

The employer must have a satisfactory training record and be able to demonstrate the content and extent of its training program for its Australian employees.

 If the nominee is over 45 years old or does not have vocational English, the appointment will be regarded as exceptional, and the employer must motivate why the particular nominee should be accepted.

If the nomination is approved DIAC will advise the employer accordingly. If any particular nominee’s visa application fails for any reason, the employer can nominate someone else for the position without completing a new nomination, provided this is done within 6 months of approval of the original nomination.

Stage 2: Visa application by nominee

The nominee must submit a visa application within 6 months from the date of approval of the nomination by the employer.

Further to the March 2005 changes to the ENS, the employee may have to apply for a skills assessment to an Australian skills assessment authority, before being able to lodge the visa application. There are some exceptions to this rule - mainly if the employee has already been working for the employer in that position for two years, or earns more than

The nominee’s application will be evaluated to confirm that the nominee is highly skilled, has the relevant skills for the nominated position and complies with any mandatory licensing or professional membership requirements. The post must still be available and a copy of the employment contract must be provided where the appointment has been approved as exceptional (i.e. the nominee is over 45). Health and character requirements must be met by the nominee and all members of his/her family unit.

Our services – ENS

We assist Australian employers with preparing nominations under the ENS and providing the necessary documentary evidence for a successful nomination.

We assist nominee employees with preparing their visa application and providing the necessary supporting documentation, as well as lodging (onshore or offshore) and monitoring the progress of their application.

Contact us for more details if you are an Australian employer seeking a highly skilled employee from overseas.

Regional Sponsored Migration Scheme

This scheme allows employers located in regional areas of Australia to employ persons from overseas in skilled positions which cannot be filled from the local market.

The RSMS consists of three distinct steps:

(1) Certification of the position by a Regional Certifying Body;

(2) Applying to DIAC for approval of the position as a nominated position under the RSMS;

(3) Lodging of the visa application by the nominee employee.

The occupations which can be filled by overseas employees are listed in a Government Gazette from time to time. In addition to all the occupations which can be nominated under the ENS there are additional occupations gazetted for the RSMS, specifically skills which are in short supply in regional Australia.

The RSMS allows for employment of persons with a diploma and less post-qualification work experience than required under the ENS.  The employee is also not required to undergo an assessment of his or her qualifications.

A two year employment contract must be entered into.  If the employee resigns from the position in less than two years, DIAC may cancel the employee's permanent residence visa, depending on the circumstances surrounding the termination of the employment.

Our services - RSMS

We assist Australian employers to obtain certification of positions under the RSMS and providing the necessary documentary evidence for a successful nomination.

We assist nominee employees with preparing their visa application and providing the necessary supporting documentation, as well as lodging the visa application and monitoring the progress of their application.

Contact us for more details if you are an Australian employer located in regional Australia and wish to employ a skilled employee from overseas.