One Step Ahead – Subclass 457 visas

More often than not there are delays for businesses that use Australian employer sponsored visas such as the Temporary Work (Skilled) Subclass 457 visas for the first time. The key to minimising the chance of delays is for the business to understand the immigration aspects of setting up overseas. As failure to do so can be costly.

The good news is that most companies do consider these immigration issues, it is just that they are often not considered early in the planning for overseas expansion.

Rightfully so the primary and initial focus for these businesses seems to be on other issues. issues such as market research, pitching for work, obtaining patents or distribution rights, or doing their homework on organisational matters such as office location, suppliers, staff, logistics and all the other set up steps that need to be done.

However when a business calls me for assistance with subclass 457 visas late in the planning process this is where the first cracks will appear in their plans. The most common outcome of this type of conversation is that I inform the business that there will be a delay for both the business and employees to get the approval and work visas they need.

In my experience the results of these delays are as simple as staff being unable to start work when planned, to businesses losing their preferred office location, businesses occurring costs not budgeted for as staff have to undertake unplanned trips in and out of the country while waiting on work visas, businesses being compromised when tendering for work and blown budgets as they have to seek additional advice from lawyers and accountants that they had not considered.

From an employee perspective there are also problems. One of the most difficult issues I have dealt with was a staff member that was unable to get a visa because they did n’t meet the skills or education level that was required. What compounded this was the employee was integral to the overseas start-up process and had travelled to Australia numerous times to put into place all the pieces that were required to get the business up and running and had been appointed to run the business in Australia. So whilst an early phone call may not have changed the outcome it would have made it easier to manage a compromising and difficult situation.

However the most potentially significant issue that I have seen from a lack of immigration planning was a business receiving a warning from the Department of Immigration and Border Protection (DIBP) before any documents had even been lodged. This was the result of a business deciding to allow staff to fly in and out of Australia on a business tourist visa (which does not allow work) to provide services for a client instead of taking the time, effort and money to ensure they complied with Australia immigration and employment laws and obtain the right visa from the start. So whilst this business had a successful outcome and their staff got the visa they needed, it was the lack of foresight to try and understand what was required early on that meant their Australian plans were almost finished before they got started. It also meant they were subjected to an immigration audit within 12 months of establishing themselves in Australia which cost the business time and money.

Having said this I should outline some, but not all, of the immigration related considerations businesses need to consider when planning their overseas expansion. As ultimately these considerations will affect how business and employees can apply for visas, what businesses and employees need to prepare and provide from a documentation perspective and what obligations businesses must comply with on a long term basis. These planning issues include:

•  Will you be an overseas business operating in Australia? Or will you be registering a local company?
• Are the positions you wish to employ foreign staff in recognised as skilled positions for visa purposes?
• Are there any licensing or registration restrictions that employees must meet in order to be granted a visa?
• Do these staff members have the experience and qualifications they need to get a visa?
• Are there any personal or family issues that will restrict an employee or family member from obtaining a visa?
• What salary package will you be offering to these employees?
• Will this salary package meet what is considered Australian market rates?
• Will their contract comply with Australian employment requirements?
• Do you intend to employ and train Australian staff?
• Are you aware of the employer sponsorship obligations you have to meet as a sponsor of foreign nationals in Australia? Are these incorporated in your contract with them?
• Can we sponsor our staff to stay permanently in Australia?

As you will see from the above questions there is a great deal of overlap with general business planning issues, but being aware of these changes the context of your research and any business agreements you enter it with clients, suppliers and service providers and allows you to stay one step ahead in being successful.