188A Business Visa Lawyers

188A Business Visa is intended for individuals with a prior business background to establish and operate a business in Australia. If you do not have the requisite business experience or plan to operate a business in Australia, you must consider other options.

You are assessed on a competitive basis, and valid visa applications are predicated on being issued an invitation through Skillselect and a nomination by an authority of a chosen State or Territory.

 

188A Criteria

Points: You must achieve a minimum score of 65 on the Schedule 7A points test and receive an invitation on a competitive basis to apply for the visa.

State Nomination: You must submit a business proposal to the nominating State or Territory for approval. The criteria can depend on where you wish to live and changes each year.

Age: You must be under 55 years of age at the time of invitation. Exceptions may be allowed in strictly limited circumstances where you can prove you would establish or participate in business or investment activity to the State or Territory.

Need to be resident: You need to establish the need for you to be resident in Australia to establish or conduct the business activity.

Business Career: You must prove that you have a successful overall record of business by reference to your previous and/ or current businesses.

Use of Management Skills: If your main business was related to provision of professional, technical or trade services, you must prove that you spent more time on managerial and operational roles of the business than provision of the services.

Ownership: You must have had an ownership interest in a main business with an annual turnover of at least $750,000 for the last 2 of the 4 fiscal years before the invitation.

Assets: You must have a total of business and personal assets of $1,250,000 at the time of invitation. You may combine your partner’s assets for this calculation.

 

Business Innovation Visa FAQ

Q: What is a main business for 188A?

A main business is a business which has satisfied all of the following in the last 2 of the 4 fiscal years before the invitation:

• You have, or have had, an ownership interest in the business.
• You maintain, or have maintained, direct and continuous involvement in management of the business from day to day and in making decisions affecting its overall direction and performance.
• The business is a qualifying business.

 

Q: What is the necessary ownership interest for a main business for 188A?

You have the necessary ownership if your share of ownership is greater than:

• 10% if the business is a publicly listed company.
• 30% if the business is not operated by a publicly listed company and its annual turnover is greater than $400,000.
• 51% if the business is not operated by a publicly listed company and its annual turnover is less than $400,000.

 

Q: What is a qualifying business for 188A?

A qualifying business is a business that is operated:

• For profit through provision of goods or services, other than provision of rental property, to the public.
• Not for speculative or passive investment.

 

Q: What is included in turnover for 188A?

Turnover is the revenue generated in the ordinary course of business activities and includes:

• Sale of goods
• Fees for service
• Commission revenue
• Interest
• Capital gains
• Government subsidies or bounties

 

Q: What is Considered a “Successful Business Career?”

You must have a business career with an overall record of success. The Department will look at many factors of your past business when making their assessment. This includes your entire business careers, as well as external factors which may explain instances of failure. Under the Department’s guidelines, business careers are generally deemed unsuccessful in the following circumstances:

• You have become bankrupt in the last 5 years.
• You have had involvement in businesses which have been subject to insolvency, receivership or liquidation.
• You have suffered recent trading losses which stemmed from decisions you were responsible for and which are likely to render the business unsuccessful in future.

 

Q: What is a fiscal year for 188A?

Migration Regulations 1.03 defines a fiscal year in relation to a business or investment as an accounting period of 12 months. Fiscal years differ across countries: some countries use the calendar year whilst other countries prefer the tax period to be different. The Department of Home Affairs approve a period as a fiscal year if it:

• is a 12 month period; and
• has been accepted as applying to that business/ investment for taxation or reporting purposes by authorities in the relevant country.

The Department has not been very strict in asserting starting and ending dates of fiscal years to certain dates. As long as the calculation is allowed in your country or corporate constitution, it would be acceptable.

 

Q: I am running a professional services firm. Am I eligible for 188A?

The visa requirements make a clear distinction between provision of services and the exercise of business skills. Where involvement in the main business predominantly consists of delivery of services to clients and customers, you may be deemed ineligible under Subclass 188A.

The question to ask is “how do I spend most of my time? In running the business or in rendering services to customers and clients?” If your involvement in your main business mostly involves delivering services personally, you may be ineligible for Subclass 188A.

 

Q: What if I am older than the age threshold?

Generally, you must not have turned 55 at the time of invitation in order to qualify for the business and innovation stream. Nevertheless, State and Territory authorities reserve the discretion to provide waiver of this requirement if your business is deemed to be of significant economic benefit to the nominating State or Territory.

States are largely free to decide what they deem to be of “exceptional economic benefit,”. Most State and Territory authorities provide minimal guidance on when they will recommend waiver of age restrictions, meaning it is up to you and your legal representative to prove exceptional benefit as part of your nomination application.

 

Q: Is 188A a Permanent Residency?

Any type of a 188 visa, including 188A, is a provisional visa that allows you to apply for Permanent Residency if you satisfy the eligibility criteria whilst holding 188 visa. It is not just a temporary visa, but provisional in a sense that it allows transition to PR in the future.

 

188A State Nomination Criteria

188A Victoria

English: Victoria will only nominate if you can demonstrate “Vocational English.” This threshold is equivalent to a minimum score of 5 on each band of the International English testing System. Other English tests are also accepted by the Victorian government.

Citizens of the USA, UK, Canada, Republic of Ireland and New Zealand are exempt from this requirement, but must provide a copy of their passport biodata page in lieu of an English test.

Qualifications: You must have either attained:

• • Bachelor’s degree or higher in a Science, Technology, Engineering, Mathematics or Medicine (STEMM) field; or
  • Master of Business Administration (MBA).

It is expected that applicants applying with a MBA degree have obtained their qualification through at least 1 year of study. There are no restrictions on the types of MBAs accepted. Intensive MBA courses of less than 1 years duration may also be considered.

If you do not have either of the above education qualifications, you must have 3 years experience operating a business in one of the following sectors:

• • Digital technologies
  • Advanced manufacturing
  • Health and life sciences
  • Agri-food
  • New energy and emissions reduction
  • Circular economy
  • Priority precincts

Proposed Business Activity: Your proposed business activity must contribute to product innovation or process innovation in Victoria, which follow the definition of “innovation” set by the OECD.

• • Product Innovation: A good or service that is new or significantly improved. This includes significant improvements in technical specifications, components and materials, software in the product, user friendliness or other functional characteristics.
  • Process Innovation: New or significantly improved production or delivery method. This includes significant changes in techniques, equipment and/or software.

You must demonstrate how your proposed business will make contributions to the Victorian economy. In addition, you must show that you will personally be involved in the day-to-day operations and overall strategic direction of the business.

Proposals based on export businesses must take extra steps to demonstrate direct contributions to the Victorian economy. Grey market activities and parallel exporting are forbidden.

Employees: You must agree to employ no less than 2 full time Australian employees in your main business for a minimum of 24 months.

 

188A New South Wales

Proposed Business Activity: You must describe your proposed business activity as part of the nomination application. The following details must be stated in details:

• • What your business will be.
  • The products and services that your business will provide.
  • Why you chose to establish your business in New South Wales.

188A NSW nomination requirements differ depending on whether you are relocating to a metropolitan or regional area of the State. Concessional criteria apply if you plan to reside in a regional area that is outside Sydney.

Business Turnover

• • Metropolitan: For 2 of the last 4 years immediately before the nomination application is made, your main business must have achieved $1,000,000 in annual turnover.
  • Regional: For 2 of the last 4 years immediately before the nomination application is made, your main business must have achieved $500,000 in annual turnover.

Assets

• • Metropolitan: Your combined personal and business assets must exceed $1,300,000 in value.
  • Regional: Your combined personal and business assets must exceed $800,000 in value.

Proposed Business Investment

• • Metropolitan: Your proposed business investment must be greater than $500,000.
  • Regional: Your proposed business investment must be greater than $300,000.

 

188A Queensland

Certain business types are not accepted, or otherwise subject to additional criteria, for the scope of Queensland State Nomination.

• • Property Development: Under no circumstances will property development activities be accepted for nomination purposes.
  • Importing: Importing businesses will only be allowed where the enterprise involves importation of goods which are either highly innovative products, technologically advanced or unavailable in Queensland. Furthermore, your importing business must involve some value-adding service as opposed to mere importation of goods. Such services may include installation, repair, assembly, custom design or other such services. Mere importation of goods will not be permitted, irrespective of the nature of the goods.
  • Entry Level Small Retail Business: Entry level small retail businesses are only permitted in regional QLD, that is anywhere but Brisbane. If you are a skilled migrant looking to purchase a small business in regional Queensland, you may also consider Subclass 491 through the Small Business Owner Pathway.

 

188A South Australia

“Benefit to the State” Requirement: All proposed business activities for 188A South Australia must satisfy this requirement.

• • Investment into the business activities must exceed $300,000 (Director’s loans are not accepted).
  • The prospective business must employee three (3) full time equivalent employees.

Living in South Australia: You must intend to live and establish a business in South Australia.

Acceptable Businesses: Property development is generally not accepted, especially if they constitute mere private investor property development. Importing businesses require substantial justification in terms of the minimum investment amount. 

Age Exemption: South Australia may provide special endorsements of nominees aged between 55 and 65 years on a case-by-case basis. Whilst little additional guidance is given, South Australia will give priority to those looking to establish a business in a regional area.

 

188A Western Australia

The requirements for 188A WA visas mirror the federal requirements with additional criteria to property development businesses.

Proposed Business Activity: You must show how your proposed business will make economic contributions to Western Australia. Your business plan must be realistic and research-based, demonstrating your understanding of the State business environment.

Additional Points for Special Endorsement: Western Australia awards additional ten (10) points for applicants who has:

• • Net assets in WA for more than $1,500,000; or
  • More than $500,000 in business investment; or
  • Created one (1) new full time job.

 

 

188A Visa Costs – 2023

In addition to the cost of your business investment, the Australian Government charges fees when lodging your visa application. The total cost depends on a number of factors, including the English proficiency of each adult applicant and the number of total applicants.

First instalment

• Base application charge: $6,270
• Additional applicant charge for an applicant who is at least 18: $3,135
• Additional applicant charge for an applicant who is less than 18: $1,565

Second instalment, if the functional English cannot scored by the applicants

• Primary applicant without functional English: $9,795
• Secondary applicants who do not demonstrate functional English: $4,890
• Other applicants: Nil

 

 

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