482 TSS Visa Lawyers

Temporary Skill Shortage Visas, or TSS Visas visas are designed to enable Australian employers to address labour shortages by bringing in foreign workers with genuine skills where they cannot source appropriately skilled Australians. At all times, the process ensures that Australian workers are prioritised.

While 482 Visa remains in effect, the Visa Holders:

• Can work in Australia for their approved sponsor in their approved occupation; and
• May bring any eligible dependants with them to Australia, allowing their dependants to work and study; and
• Have no limit on the number of times they can travel in and out of Australia while the visa is valid.

Strong worker protection measures are also in place to maintain Australia’s high standard of labour practice. As a result, the overseas skilled workers are afforded the same workplace rights as Australian workers.

 

482 Visa Short Term Stream

The employers may source highly skilled overseas workers to fill short term positions in a range of occupations for a maximum of 2 years. It can be 4 years where an international trade obligation applies to the contrary. For more information, please see our Subclass 186 page here.

 

482 Visa Medium Term Stream

The employers may source highly skilled foreign workers to fill medium term skill needs for up to 4 years, with eligibility to apply for permanent residence after 3 years.

 

482 Visa Labour Agreement Stream

The employers must have demonstrated that their requisite skill sets cannot be obtained in the Australian labour market or through the other streams of the 482 TSS Visa Program. The process would attract strict scrutiny. Only the ones who have managed to execute labour agreements with the Commonwealth Government may utilize this Stream.

 

482 Visa Eligible Occupations

In order to qualify for the Subclass 482 Visa, the nominated position must be in an occupation specified in the legislative instrument. The maximum duration of the 482 Visa will depend on which of the available streams one’s occupation falls within.

The 482 Visa Occupation Lists as at the time of writing can be found at LIN 19/048 Instrument.

 

How to Apply for 482 Visa

Subclass 482 Visa program consists of 3 primary stages where each stage requires a separate application. Each application is subject to their own requirements and prerequisites. The application process is comprised with: 

• Sponsorship: The employer applies for approval as a standard business sponsor (SBS). This approval can be relied upon for nominations of multiple employees.
• Nomination: The employer nominates a specific individual for a position in the applicable occupation list. Lodgement of the nomination application permits an applicant to apply for a 482 Visa.
• Visa application: If granted, the 482 Visa holder is restricted to work for the nominating employer only. Should the employer change, a nomination application needs to be lodged again to lawfully facilitate the new employment.

 

Sponsorship

The application for SBS approval requires prospective employers to be lawfully operating a business, whether in or outside Australia. This requirement exists so that shelf companies that do not operate a business cannot become sponsors. It is up to the employer sponsor to show that they are legally established and actively operating.

 

Who can be a Sponsor?

For the purpose of an SBS approval application, the entity applying for sponsorship approval can be any of the following:

• Sole traders;
• Partners in a partnerships;
• Trustees;
• Companies, both proprietary and public;
• Government departments and statutory authorities;
• Non-profit organisations; and
• Educational institutions.

The precise identity of the sponsoring entity can be quite complex, and many provisions may operate differently in practice depending on the type of sponsoring entity. For example, whilst some forms of self-sponsorship may be permitted, a sole trader is not able to sponsor him or herself.

Sponsors must be operating a business, either in or outside Australia. If an SBS applicant only operates a business outside of Australia, SBS approval is generally only provided where it is sought to assist with establishing an Australian business or to fulfil a contractual obligation. 

 

“Lawfully Operating a Business”

To satisfy this criterion, SBS applicants must demonstrate that their business is both “legally established” and “operating.”

 

Legally Established

To be considered “legally established” a business must satisfy all registration requirements which apply to it within the jurisdiction in which it operates. This includes the laws of Australia’s states and territories, as well as foreign laws where business operations are undertaken outside of Australia.  

For Australian businesses, the Department of Home Affairs will generally accept the following forms of evidence in relation to the below types of business entities:

• Sole trader
  • ABN registration
• Partnership
  • Business name registration (where applicable)
• Company
  • ABN registration
  • Business name registration (where applicable)
  • ACN (for Australian companies)
  • ARBN (for foreign companies and registrable Australian bodies) 
• Incorporated Association
  • ABN registration
  • Business name registration (where applicable)
  • State or Territory issued certificate of incorporation
• Unincorporated Association
  • ABN registration
  • Business name registration (where applicable)
• Trust Structure
  • ABN of trust company (for a corporate trustee)
  • ABN of the trust
  • Trustee business name registration (where applicable)
  • Pages of the trust deed listing the parties to the trust
  • Signature page of the trust deed
• Franchise
  • Business name registration (where applicable)
  • Pages of the franchise agreement listing the parties
  • Signature page of the franchise agreement

Operating 

It is expected that actively operating businesses maintain a system of record keeping, from which evidence of said operations can be derived. The types of evidence accepted by the Department of Home Affairs in relation to this criterion is broad. 

Most acceptable forms of evidence will constitute financial documentation, such as tax documents and bank statements, evidence of commercial activity, such as a commercial contract or business plan, or evidence of business-related expenses, such as a commercial lease or proof of employment of staff.   

 

Duration of SBS Approval

The duration for which a successful SBS application remains operative is referred to as the “sponsorship period.” This sponsorship period will generally be of 5 years in duration. A sponsor can nominate multiple workers during the sponsorship period.

 

Accredited Sponsor Status

A business can apply to become an ‘Accredited Sponsor’ as part of their sponsorship approval application or renewal application. This ‘Accredited Sponsor’ status provides the employer priority processing of all nomination and visa applications associated therewith. Accredited Status may be revoked at any stage if it is found that the accredited entity does not maintain the characteristics required to hold Accredited Status, or if they declare that they no longer meet these characteristics as part of a sponsorship renewal application.

Not all employers will qualify for accredited sponsor status. To find out if your organisation is eligible, call us now on +61 03 9958 5854 to book an appointment with our solicitors.

 

Sponsor’s Obligations

Approved sponsors are subject to various conditions and obligations. Failure to comply with these conditions may result in cancellation of one’s sponsorship status, or even significant civil penalties or administrative sanctions. 

Sponsors are obliged to:

• cooperate with Inspectors who are appointed under section 140V, and exercising powers under the Migration Act;
• ensure equivalent terms and conditions of employment of a sponsored person and those of an equivalent Australian worker;
• pay travel costs to enable sponsored persons to leave Australia and keep records of any request to pay travel costs, as well as evidence of compliance therewith;
• Reimburse the Commonwealth to locate and remove an unlawful non-citizen for whom the employer was a sponsor;
• provide records and information in relation to reimbursement of travel costs to the Minister in on request and maintain said records for 2 years after sponsorship approval lapses;
• provide information to the Department when certain events occur, such as termination or variation of a sponsored person’s employment;
• ensure that the primary sponsored person works in the nominated occupation only;
• not take actions that would result in another person paying for certain costs, including migration agent or solicitor assistance; and
• not to act in a discriminatory manner in relation to one’s recruitment practices.

Depending on the violation, and the nature of the sponsor, pecuniary penalties of up to 300 penalty units, or AUD$66,000, may be imposed. It is imperative, therefore, to discuss your rights and obligations as a sponsor with a migration solicitor before sponsoring a foreign employee.

 

Merits Review of a Sponsorship Refusal

Australian businesses may appeal a negative SBS application to the Administrative Appeals Tribunal (AAT) for merits review. It is not possible for overseas review sponsors to access the AAT for this purpose.  

 

Can my Sponsorship Application Fee be Refunded?

Sponsorship refunds are generally not available, even in the event of application withdrawal. Sponsorship application fees may be refunded only where said application was made because of a mistake of the Department of Home Affairs. Refunds are thus not generally available in the usual circumstances.

 

Nomination

In order for a nomination to be approved, the delegate must be satisfied that:

• There is no adverse information about the sponsor, or an associated person, unless the delegate regards it as reasonable to disregard;
• The person is an SBS, or a party to a work agreement;
• The person has paid the SAF levy in full;
• Dependant or secondary visa applicants are named in the nomination, if applicable;
• The nominated occupation corresponds to an occupation specified in a legislative instrument or work agreement, and to the nominee;
• The nominated position is genuine;
• The position associated with the nominated occupation is full-time unless it is reasonable to disregard this requirement;
  • 38 hours per week will be considered full time; or
  • Periods between 32 and 45 hours will be acceptable if specified under an industry award or agreement.
• All salary related requirements have been met;
• There is no information that would indicate that employment conditions for the nominee are less favourable than those applicable to an equivalent Australian worker, unless it is reasonable to disregard that information; and
• The sponsor has not engaged in discriminatory recruitment practices.

 

Labour Market Testing

Nomination applications are also subject to a requirement to provide evidence of labour market testing (LMT) unless international trade obligations apply. This requirement effectively requires employers to advertise the nominated position for 28 days before submitting a visa application. This requirement is to ensure there is a genuine need to engage foreign labour and that the position cannot be filled from the domestic labour market.  

Labour Market Testing – Requirements

the nominated position must be advertised in Australia in accordance with the requirements set out in the relevant legislative instrument (LIN18/036). These requirements are summarised below:

• The advertisements must be in English
• One (1) advertisement must be published on the Australian Government’s “jobactive.gov.au” website:
• An additional two (2) advertisements must be published in any of the below mediums:
  • on a recruitment website with ‘national reach’ in Australia;
  • print media with national reach in Australia;
  • radio with national reach in Australia; or
  • if the sponsor is an accredited sponsor – on the approved sponsor’s website;
• The advertisements must include the following details:
  • the title, or a description, of the position;
  • the skills or experience required for the position;
  • the name of the approved sponsor or their recruitment agency; and
  • the salary for the position, unless the intended annual earnings for the nominated position are more than $96,400;
• The advertisement was active for 4 or more weeks.

Failing to include all requisite details in one’s LMT advertisements will likely result in nomination refusal. 

Also crucially, any employment contract between the employer and the nominee must only be signed and dated after completion of the 28 days of labour market testing. Submitting an employment contract signed before LMT is complete is exceedingly likely to result in nomination refusal. 

Labour Market Testing – Exemptions – International Agreements

Citizens and permanent residents of select countries may be nominated for a Subclass 482 TSS visa without completing LMT. These exemptions relate to obligations of the Australian government in relation to various international agreements. These obligations fall into 2 categories:

• Free Trade Agreements (FTAs); and
• World Trade Organization (WTO) General Agreement on Trade in Services (GATS).

In practical terms this means that a nomination does not require evidence of LMT if:

• The nominee is a:
  • citizen/ national of China, Japan, Mexico, Thailand or Vietnam; or
  • citizen/ national/ permanent resident of Canada, Chile, Korea, New Zealand or Singapore.

Note: As per the DFAT website, the China-Australia Free Trade Agreement (ChAFTA) does not cover Hong Kong, Macau or Taiwan.

or

• The nominee is a current employee of a company that is;
  • an associated entity of the sponsor; and
  • that associated entity is located in Canada, Chile, China, Japan, Korea, New Zealand or any ASEAN nation (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam);

or

• The nominee is:
  • a current employee of an associated entity of the sponsor’s business and that associated entity operates in a WTO member country;
  • nominated as an Executive or Senior Manager; and
  • will be responsible for the entirety, or a substantial part, of the company’s operations in Australia.

or

• The nominee:
  • is nominated as an Executive or Senior Manager;
  • is nominated by an overseas business sponsor operating in a WTO member country; and
  • will be responsible for the establishment of a new operation of that business in Australia.

or

• The nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for 2 years immediately before the nomination is lodged.

If you believe that you, or your prospective employee are exempt from the LMT requirement, it is crucial you obtain comprehensive legal advice before proceeding with your nomination. Non-compliance with LMT requirements will result in nomination refusal and significant loss of time and money. 

Labour Market Testing – Exemptions – “Select Position”

LMT requirements are not applicable to nominations for so-called “select positions,” which includes positions:

• in a profession, sport, academia, research or a top-talent chef position requiring the occupant to have an internationally recognised record of exceptional or outstanding achievement in the relevant field or profession; or
• to be filled by an employee of a company operating an overseas business and is nominated by an associated entity of that company operating in Australia; or
• held by a subclass 457, 482 or 494 visa holder, where the nomination has only been submitted due to changes in the annual earnings of the position or a change in the business structure of the sponsoring entity; or
• with annual earnings equal or greater than AUD$250,000; or
• within ANZSCO Minor Group 256, other than “General Medical Practitioner” or “Medical Practitioners nes;” or
• within ANZSCO Unit Group 4111, which includes the occupations of “Ambulance Officer” and “Intensive Care Ambulance Paramedic.” 

 

482 Visa Application

The third stage of the Subclass 482 TSS visa application process is to apply for the visa itself. This is the only application submitted directly by the applicant. The basic criteria for the subclass 482 visa, other than being successfully nominated, is as follows:

• Undertaker a “skills assessment,” if required for your occupation and nationality.
• Have complied with the conditions of your previous Australian visa, where applicable.
• Prove your genuine intention to work in the nominated occupation.
• Have the requisite skills, qualifications or experience for the nominated position.
• Have at least 2 years of prior experience in the nominated occupation, or a related field.  
• Be a “genuine temporary entrant.”
• Meet the appropriate English requirement for your stream.
• Make health insurance arrangements for yourself and your accompanying family.
• The position is within the sponsoring business or an associated entity thereof.

 

Skills Assessment – 482 TSS Visa

Certain TSS primary visa applicants, irrespective of visa stream, are required to demonstrate that they have either commenced a skills assessment process, or they must provide evidence of a positive skills assessment outcome. The relevant assessing authority must assess the applicant’s skills as suitable for the nomination occupation within the required time period.

Skills assessments are only required where the applicant is part of a class of persons specified in Migration (IMMI 18/039: Mandatory Skills Assessment – Subclass 482 Visa) Instrument 2018. Most of these occupations are trade occupations and are assessed by Trades Recognition Australia via their TSS skills assessment. The remaining occupations are assessed by VETASSESS. 

Note that a TSS skills assessment is not equivalent to a skills assessment for the purposes of other visa subclasses, such as Subclasses 186, 189 or 190. As such, a TSS skills assessment will not be sufficient to support a permanent residency application.

In rare cases, a discretionary skills assessment may be requested by the Department where it would otherwise be unnecessary. Applicants would then be required to undertake a skills assessment to meet this visa criterion. 

 

Substantial Compliance

If you are within Australia when your TSS application is decided, you must have substantially complied with all conditions of your current or most recent substantive visa, as well as any conditions applicable to any bridging visa held by you.

Breach of a visa condition when waiting for a TSS visa grant may therefore prejudice your Subclass 482 temporary work visa application. 

 

Genuine Intention

A Subclass 482 TSS visa can only be granted where the Department is satisfied that:

• The position is genuine; and
• The visa applicant’s intention to perform the occupation is genuine.

Generally speaking, approval of an associated nomination will satisfy this criterion, however further inquiries may be made by the decision maker if adverse information about your application has subsequently come to light. 

In some instances, inconsistencies between the nominated position and the credentials of the applicant may give rise to a presumption of a lack of genuineness. For example, where an applicant with little experience is nominated for a specialist management position. 

 

Skills, Qualifications and Experience

Applicants must demonstrate to the Department that they possess the skills, qualifications and employment background necessary to perform the nominated occupation. This assessment involves a comparison of the applicants qualifications and work history against the ANZSCO occupation specified in the nomination application. 

Although extremely useful for satisfaction of this requirement, this criterion does not necessarily require obtaining all necessary occupational licencing except in the case of medical practitioners. In any case, such arrangements will need to be made in relation to the condition of one’s Subclass 482 visa. See our discussion on visa conditions below.   

Medical Practitioners – Additional Requirements

Applicants nominated as medical practitioners must provide evidence that the Medical Board has recognised their qualifications and that they have been registered or that they will be given medical registration after visa grant.

 

2 Years Work Experience

Visa applicants are required to have worked in the nominated occupation, or a related field, for at least 2 years. 

Policy requires that this work experience be:

• Full-time, meaning 38 hours per week, or at least between 32 and 45 hours per week under an industry agreement; and
• Completed within the last five (5) years, though not necessarily continuously.

Does Experience from my Studies Count?

Experience gained as part of a Masters or PhD may be counted for relevant occupations, such as medical and research occupations.

Other study-related work, such as work placements or internships may be considered if undertaken as part of a CRICOS registered course of study and is relevant to the occupation. Under policy, this may include clinical placements for medical practitioners and the internship component of a Professional Year Program.  

 

English Proficiency 

English requirements are outlined under the Migration (IMMI 18/032: Language Test Requirements – Subclass 482 Visa) Instrument 2018. The exact requirements vary between streams. 

Subclass 482 (Temporary Skill Shortage) visa in the Short‑term stream

• IELTS – overall band score of at least 5.0 – score of at least 4.5 for each test component.
• PTE – overall band score of at least 36 – score of at least 30 for each test component.

Subclass 482 (Temporary Skill Shortage) visa in the Medium‑term stream

• IELTS – overall band score of at least 5.0 – score of at least 5.0 for each test component.
• PTE – overall band score of at least 36 – score of at least 36 for each test component.

English Exemptions

Applicants holding passports from the following countries are exempted from undertaking a formal English test:

• United Kingdom
• United States of America
• Canada
• New Zealand
• Republic of Ireland

Other exempt categories of applicant include:

• Those who have completed 5 years of full-time secondary or tertiary study, where the medium of instruction was English.
• Those who have obtained some form of necessary professional licencing in relation to the nomination occupation which imposes a minimum English score equivalent or superior to that required by the TSS visa requirements.  
• Those working for an overseas business and are coming to work in Australia for said company or its associated entity and have been nominated for a position with annual earnings of at least AUD$96,400.

Diplomatic and consular staff are similarly exempt from the 482 TSS English requirements.  

 

Conditions

Subclass 482 holders are subject to condition 8607, which operates to restrict a visa holder’s right to work in Australia. They are also subject to condition 8501, requiring that they, and their accompanying family members, maintain adequate arrangements for health insurance.   

 

Work Restrictions – Condition 8607

Condition 8607 imposes the following requirements upon the primary visa holder:

• They must work in the nominated occupation specified in their visa grant
• They must not work for an employer other than the nominating employer
• They must commence work within 90 days of the visa grant, if granted whilst in Australia, or 90 days of their arrival in Australia, if granted whilst overseas.
• They must not cease employment for more than 60 consecutive days.
• Comply with any regulations relating to their right to work in the nominated occupation. Any mandatory licence, registration or membership must be obtained within 90 days of the visa grant, if granted whilst in Australia, or 90 days of their arrival in Australia, if granted whilst overseas.

Note that where work limitations conflict with industrial relations law, a TSS visa holder can continue to work for a person other than the nominating employer if the work is required to fulfil a legal requirement.

 

Work Restriction Exemption – Medical Practitioners and Corporate Executives

For particular occupations, the Subclass 482 work restrictions operate quite differently. 482 visa holders nominated for one of the below-listed occupations are not restricted to undertaking work for a nominated employer. They are, however, required to work exclusively in their nominated occupation.

The relevant occupations, as per LIN 19/212 include:

chief executive/managing director corporate general manager general medical practitioner resident medical officer anaesthetist specialist physician (general medicine) cardiologist clinical haematologist medical oncologist endocrinologist gastroenterologist intensive care specialist neurologist paediatrician renal medicine specialist rheumatologist thoracic medicine specialist specialist physician (nec)

psychiatrist surgeon (general) cardiothoracic surgeon neurosurgeon orthopaedic surgeon otorhinolaryngologist paediatric surgeon plastic and reconstructive surgeon urologist vascular surgeon dermatologist emergency medicine specialist obstetrician and gynaecologist ophthalmologist pathologist diagnostic & interventional radiologist radiation oncologist medical practitioners (nec)

We stress that the aforementioned exemption exclusively relates to who the TSS visa holder can work for. Subclass 482 visa holders working as doctors or senior corporate executives must continue to fulfill other conditions contained in condition 8607, including maintaining professional regulatory compliance and not ceasing work for more than 60 consecutive days.

 

Application Charges

[1] Short Term Stream

• Base application charge: $1,330
• Additional applicant charge for an applicant who is at least 18: $1,330
• Additional applicant charge for an applicant who is less than 18: $335

[2] Medium/Long Term Stream and Labour Agreement Stream

• Base application charge: $2,770
• Additional applicant charge for an applicant who is at least 18: $2,770
• Additional applicant charge for an applicant who is less than 18: $695

 

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