Temporary Australian Business Visas:
Professionals can enter Australia on a temporary basis to conduct business or to undertake employment that is considered to benefit the Australian economy. These temporary visas are meant to streamline their application process.
The main current business and temporary residence visa (Class UC) is intended to allow for relatively streamlined entry to Australia, catering for:
Subclass 456 visa:
An applicant can apply for a stay of up to three months at a time for purposes such as pursuing investment opportunities and attending to business interests and negotiations.
Visa validity options include single entry only or multiple entry for up to five years (or life of passport to a maximum of ten years).
The applicant must be outside Australia both at the time of application and at the time of grant.
Subclass 977 visa:
The short-stay business visa is also available in electronic form (Electronic Travel Authority) to eligible passport holders of 31 countries and locations, with more than 55 airlines and 22,500 travel agents worldwide participating in the system. Application must be made outside of Australia.
Subclass 459 visa:
The Sponsored Business Visitor (Short Stay) 459 visa was introduced on 1 July 2000, and falls under Class UL. The visa program enables a small group of business visitor applicants who have difficulty establishing their bona fides overseas to provide overseas decision makers with stronger evidence of their intention to depart Australia before their visas expire.
The program requires a sponsorship by a settled Australian citizen or permanent resident and an undertaking by the sponsor that the visitor will abide by the conditions of their visa and will return home before the visa expires.
This visa however is comparatively restrictive in that it only allows Australian Government agencies, members of State, Territory and Federal Parliaments, and local government mayors, to provide formal sponsorships for business visitor visa applicants.
Subclass 457 visa categories:
Under this visa class, business people and skilled personnel from overseas may qualify and apply for one of the following categories providing for a stay of up to four years:
Descriptions are provided below for each of the above different categories by which a Subclass 457 visa can be made.
Applying for temporary employment involves a three-step application process:
(a) Sponsorship (first step):
Sponsorship by Australian businesses
Australian employers seeking to sponsor the temporary entry of an overseas person must apply for either Pre-Qualified Business Sponsorship (PQBS) or Standard Business Sponsor (SBS) status.
PQBS status initially is valid for two years with annual or biennial renewal thereafter. Employers with PQBS status may lodge any number of business nominations (see below) during the validity of their PQBS status. SBS status allows sponsors to nominate a set number of eligible occupations to be filled by non-residents over a 12-month period.
Both types of sponsor (SBS and PQBS) must establish that they are of good standing and will provide benefit to Australia through their sponsorship activity. Benefit may include contributing to employment creation or enhancing Australia's competitiveness or trading performance.
It is necessary for employers to demonstrate a satisfactory training commitment towards Australian workers or that they will introduce, utilise or create in Australia new or improved technology or business skills.
Overseas businesses may apply for Quasi-Standard Business Sponsorship (QSBS) status and nominate currently employed key personnel (for example, executives, senior managers and specialists) for the purpose of establishing a business presence or fulfilling contractual obligations for the overseas business in Australia.
Such employers are assessed against normal sponsorship criteria, and are required to meet normal sponsorship requirements.
The proposed operation must be of benefit to Australia, providing employment or enhanced competitiveness, trade or business links with international markets. Employers are required to comply with standard employer undertakings including any financial obligations to the Commonwealth, Australian industrial laws and levels of remuneration.
[Note - in 1999-2000, a total of 467 principal visas were granted to key personnel nominated by overseas companies].
(b) Nomination (second step):
An approved sponsor must lodge a nomination for each position to be filled.
From 1 July 2001, the concepts of "key / non-key" activity and "labour market testing" were replaced with a requirement for the business activity nomination to meet certain skills and salary threshold requirements.
These requirements are intended to ensure that only highly skilled occupations are approved (among other requirements). At the time the nomination is made:
The tasks of the activity nominated must correspond to the tasks of an occupation specified in a Gazette Notice.
The applicant must be paid at the level specified in the nomination, and that level must be at least the minimum salary level specified in a Gazette Notice.
(C) Visa Application (final step):
The principal applicant must possess the relevant skills and background necessary to perform the nominated activity.
Any skills assessment required of the applicant is undertaken at this stage.
Generally, the visa applicant and any dependents over 12 years of age included in the application must provide an X-ray if stay is for more than 12 months. However, applicants who are intending to work in an area of special significance, for example, health-care fields, and classroom or food situations must undertake complete medical examinations.
A temporary 457-visa holder is subject to a strict 'work limitation' (condition 8107) meaning he or she must only work for the original sponsoring employer.
Dependent partners have unlimited work rights.
From 1 March 2003 this Subclass 457 (Business (Long Stay)) visa ceased to be available to a first time "Independent Executive" (IE) applying offshore.
Overseas applicants seeking to establish new businesses or joining existing businesses in Australia now need to consider the two-stage Australian business skills visa processing arrangements introduced on 1 March 2003.
However, an "Independent Executive" visa holder (granted pre-1 March 2003), who is facing the expiry of their current visa may qualify and apply for a further 457 Temporary Business Entry (Class UC) visa without having to leave Australia provided he or she has been (among other criteria) conducting a business in Australia as a principal for at least 15 months. (If for a lesser period, an endorsement of a State or Territory government to apply on-shore for a new visa of the same class is required).
Alternatively, an eligible 457 (IE) visa holder may apply for permanent residence under either the Established Business Owner Subclass, Regional Established Business in Australia (REBA) or via the second stage State/Territory Sponsored Business Owner (Residence) visa.
Provision is made under the Subclass 457 visa for the issue of a labour agreement -- a formal agreement negotiated between the Australian Government and the employer or industrial association for the temporary and/or permanent entry of a specified number of persons with particular skills to fill a group of positions where a skill shortage can be demonstrated (frequently in labour sensitive occupations).
Applicants must be under 45 years of age (unless the appointment is considered to be 'exceptional'). No labour market testing or evaluation of the skill nature of the position occurs, having been addressed during the negotiation phase. Only the skills of individual applicants need to be verified to ensure each satisfy the requirements of the exiting Agreement.
The main aim of LAs is to ensure that the recruitment of skilled persons from overseas occurs in the context of improving employment and training opportunities for Australian citizens and/or permanent residents.
Currently, there are over 60 current Labour Agreements with more under negotiation. The major areas covered are in the ICT, resources, and hospitality sectors.
RHQs issued under the Subclass 457 visa enable the temporary and permanent transfer of key expatriate executive and specialist personnel of the company group, and such applications therefore receive priority processing over applications to which a standard Labour Agreement applies.
RHQs form part of a range of incentives, for instance, tax incentives designed to enhance Australia's attractiveness as a business location in the Asia-Pacific region.
The objectives of RHQs are to:
Invest Australia, in the Department of Industry, Science and Resources (DISR), is the responsible body for assessing all proposals of companies wishing to establish regional operations in Australia. Proposals are assessed in consultation with DIAC, which is also a signatory to any agreement.
There are over 90 current Regional Headquarters Agreements with the greatest number of visas issued in the ICT and financial sectors.
Provision is made under Subclass 457 for the issue of a visa allowing a stay of up to 6 months to persons seeking to enter for temporary business purposes as service sellers. This arrangement is to enable Australia to meet its obligations under the General Agreement of Trade in Services (GATS) to such persons whose employers are seeking to negotiate the supply of services.
Temporary admission means that a visa holder obtains a residence permit for a limited period of time (up to four years). When the time has expired, the visa holder must leave Australia unless a change in resident status is obtained -- temporary or permanent residence.
If a visa holder needs to extend their stay in Australia, a new visa must be applied for before his or her current visa expires, as it is not possible to extend an existing visa.
In such situations a temporary Business (Long Stay) visa holder may consider applying for migration or permanent residency through:
Another option is to apply for a further temporary stay (for example, Subclass 457, Graduate - Skilled, Occupational Trainee, Retirement, and so forth) without having to depart Australia, provided he or she has a current qualifying visa and specific selection criteria are met.
Beware: applying for certain temporary or migrant visas does not allow further stay in Australia, or a change in status. This means a further visa for either a temporary stay or permanent residence in Australia is not legally possible.
For instance, during the latest Migration Program year, 3,109 Business Work visa applications (includes temporary employer sponsorships) under the subclass 457 visa stream were refused (statistics provided by DIAC).
Regulations and policy are complex and ever-changing. Right now, the Australian Government is conducting a major review of the current Temporary Residence Program in an effort to simplify its operation, with a view to removing unnecessary complexities and inconsistencies.
As in every application, great care is required in preparing forms and key supporting documents. Often what is submitted initially will be relied upon by the Department of Immigration in subsequent applications.
Individuals who breach or overstay their visa may be subject to an exclusion period from returning to Australia, usually up to three years, irrespective of whether they leave voluntarily or not (only limited waiver provisions exist).
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