494 Regional Employer Sponsor Visa Lawyers

The subclass 494 visa (often referred to as “SESR visa”) is a temporary employer sponsored visa that permits the holder to enter and stay in Australia for a period of 5 years from the date of visa grant. The Subclass 494 SESR visa requires applicants to remain resident in regional Australia in return for a potential avenue to permanent residency via the Subclass 191 visa.

The Subclass 494 SESR visa is designed to respond to labour shortages in regional Australia. It provides concessions to regional employers for recruitment of skilled overseas workers who are willing to live and work in a region on an ongoing basis. The visa can only be used if the employer is genuinely unable to source appropriately skilled Australian workers.

 

494 Visa Obligations and Entitlements

In summary, the holder of a Subclass 494 SESR visa:

• Must work for the approved sponsor in the approved occupation;
• Must only live and work (and, if relevant, study) in a designated regional area;
• Can bring eligible dependents with them to Australia. Those dependants must satisfy the secondary criteria. Dependants can work and study but must live, work and study in a designated regional area only;
• Can travel in and out of Australia during the validity period of the visa.

 

Subclass 494 Visa Streams

There are 2 streams under the Subclass 494 SESR visa program:

• Employer Sponsored stream: for employers in regional Australia to recruit skilled overseas workers to work in specified skilled occupations for. Visa holders become eligible to apply for permanent residency after 3 years; 
• Labour Agreement stream: for employers in regional Australia who have a labour agreement with the Commonwealth to source skilled overseas workers. The applicant’s occupation must be specified in the labour agreement. Visa holders become eligible to apply for permanent residency after 3 years.

 

Stages of the Subclass 494 Visa

As with most employer sponsored visas, there are 3 stages in sponsoring an overseas worker under this visa program:

• 494 Sponsorship: The employer applies for approval as a standard business sponsor (SBS) or seeks to enter into a labour agreement with the Commonwealth. This SBS approval is the same class of sponsor as is required for the Subclass 482 TSS visa program. Australian businesses with a valid SBS approval do not need to apply again.
• 494 Nomination: The sponsor must nominate a prospective visa applicant or an existing visa holder to undertake employment in a specified occupation.
• 494 Visa application: The person identified in the nomination applies for a visa in the stream (either the Employer Sponsored stream or Labour Agreement stream) which corresponds with the nomination.

In relation to the aforementioned stages, it is important to note the following:

• The 3 stages identified above must be initiated sequentially, however it is not necessary to wait for a decision on the preceding application. For example, an online application to be an SBS can be immediately followed by an online nomination. The online nomination can be immediately followed by an online visa application. The approval process then cascades in the same way. The nomination cannot be approved unless the sponsorship has been approved, and the visa cannot be granted unless the nomination has been approved.
• The visa holders who continue to work in their nominated occupation can change employer on the basis of a new nomination by the new employer (SBS or employer with a labour agreement). 494 visa holders cannot change their employer before a nomination by the new employer is approved, unless they are in a specified occupation. Specified occupations are largely restricted to doctors and senior corporate executives.
• If an existing visa holder wishes to change their occupation, they must apply for and be granted a new Subclass 494 visa. It is not generally permitted to change occupations, even if remaining with the same employer, without first obtaining a new visa (which also requires a new nomination). This is to ensure that overseas workers are thoroughly assessed in relation to the new occupation before they commence work in Australia – see: Visa Condition 8608 – Approved Work Only.

 

Standard Business Sponsorship

Standard business sponsorship approval requirements under this subclass are largely identical to those applicable to Subclass 482 TSS sponsors. For more information on Standard Business Sponsorship requirements, see our Subclass 482 TSS Visa page. 

 

Nomination Criteria

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 position is located in a designated regional area at the time of nomination;
• 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.

• The position is likely to exist for at least 5 years;
• 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;
• The sponsor has not engaged in discriminatory recruitment practices; and

• A “Specified Body” has advised that the nominee will be paid no less than the market salary rate for the nominated occupation. 
• Labour market testing is conducted where required.

 

Designated Regional Area

The position to which the nomination application relates must be located in a “Designated Regional Area” as defined by postcode in Instrument LIN 20/292. As of the time of writing, “Designated Regional Area” includes almost the entirety of Australia with the exception of the cities of Melbourne, Sydney and Brisbane.  

Note that the area must have been designated as such at the time of nomination. Changes to regional designation will thus not retrospectively prejudice nomination applications which predate said amendments.

 

Specified Occupation

Only occupations specified in Instrument LIN 19/219, or specified in an applicable labour agreement, will be eligible for nomination under Subclass 494. The aforementioned instrument currently lists all occupations on the “Medium and Long-term Strategic Skills List” and “Regional Occupation List” as eligible for Subclass 494 under the Employer Sponsored Stream.

 

Genuine Position

Nominating employers must satisfy the Department that the nominating position is “genuine” and not merely contrived to facilitate the stay or entry of a foreign national.

A key factor in this determination is whether there is a “genuine need” to engage the foreign worker in the nominated occupation. As such, careful consideration is given by the Department as to whether the nominated position could reasonably be filled through the domestic labour market, that is to say, through hiring an Australian citizen, permanent resident or New Zealand citizen.

Factors which may indicate a lack of genuineness may include:

• Retrenchment of staff over the preceding year;
• Reducing the work hours of existing Australian employees;
• Pay cuts or worsening of working conditions of existing Australian employees;
• The employment of foreign workers on terms that are inferior to those offered to Australian employees;
• previous hiring of temporary work visa holders in a manner incongruent with the nominating employer’s ordinary course of business;
• The occupation and the tasks of the nominated position do not match; and
• There is a discrepancy between the nominated position and the nature of the sponsoring business (e.g. a Carpenter nominated by a restaurant). 

Factors with may indicate a genuine position may include:

• The nominated occupation is highly skilled with explicitly defined tasks under ANZSCO;
• There is a clear nexus between the nominator’s business activities and the nominators position;
• There is evidence that the nominating business has a need for the creation of new positions;
• Evidence exists pertaining to previous occupants of the position, thus suggesting that the position was not merely contrived; and
• The nominated position was appropriately advertised with a robust recruitment process. 

 

Full-time Long-Term Position

It is not possible to nominate a Subclass 494 worker for a part-time position. All nominations must relate to positions which entail a minimum of 38 weekly work hours, or some other period, potentially as few as 32 hours per week, if specified by an applicable industrial award.

Any application which would indicate weekly work hours which exceed those permissible by the National Employment Standards will likely be subject to additional scrutiny. 

Further, the position must be likely to continue to exist for a period of 5 years, which is the general duration of the Subclass 494 visa. This will generally be deemed to be satisfied, unless contrary evidence exists. 

 

Salary Requirements, Employment Conditions and Discrimination

The 494 visa must not be exploited in order to engage foreign workers on terms less favorable to those that would generally be offered to Australian workers. This essentially means that the remuneration offered to prospective 494 visa applicants must be commensurate with the average annual market salary rate for the nominated occupation. 

In any event, the nominated position must offer a salary of no less than $53,900 irrespective of the occupation or its corresponding market salary rate.

Nominated positions offering pay of at least AUD$250,000 per year will be regarded as presumptively satisfying salary requirements.

Similar comparisons are made regarding the conditions of employment offered to the visa applicant and those generally seen within the domestic labour market. A contract of employment must be supplied with the application for this purpose. 

Discriminatory recruitment practices, within the context of Subclass 494, referred to discrimination on the basis of a job applicant’s visa or citizenship status, unless done so for legal compliance. It is generally uncommon that nominations fail on the basis of this criterion, but may pose an issue where a nominating business’ workforce consists of a conspicuous number of temporary visa holders. 

 

Regional Certifying Body

A “regional certifying body” within the context of the Subclass 494 visa, is a body charged with determining and affirming the market salary rate for positions within the regional area or areas it is responsible for. 

The advice provided by this kind of body is not determinative, and it is ultimately the responsibility of the Department of Home Affairs to assess the appropriateness of the salary offered to the nominee.

 

Labour Market Testing

The nominated position must be advertised for a period of 4 weeks, and in a prescribed manner, subject to limited exemptions. 

For more information on advertising your nominated position, and the exempt categories of nominee, please see our discussion of labour market testing within the context of the Subclass 482 visa.

 

Visa Application

Upon lodgement of a nomination application, the prospective 494 visa holder must satisfy all primary criteria for visa grant. Other members of the family unit who are applicants for a visa of this subclass need satisfy only the secondary criteria. Furthermore, all criteria must be satisfied at the time a decision is made on the application.

The basic eligibility criteria under the Employer Sponsored stream are as follows:

• All applicants meet Australian’s health requirements
• The applicant will work in the nominated occupation for the nominating business
• The applicant is under the age of 45 
• The primary applicant holds a positive skills assessment for their occupation
• The primary applicant has at least three years of work experience in the nominated occupation
• The primary applicant can demonstrate “competent English” proficiency

 

Health Requirement

All applicants must meet Australia’s health requirement. This is assessed on a case-by-case basis. Applicants will fail this criterion where:

• Their disease or condition poses a public health risk;
• The cost of treatment of their condition exceeds a prescribed threshold; or
• Appropriate treatment is in short supply in Australia and would thus prejudice access for Australian citizens and permanent residents requiring the same care.

For more information about Public Interest Criterion 4007 health requirements, see our comprehensive health criterion article.

 

Age Requirement

The applicant must have been under the age of 45 or be a person in any of the five categories of applicants specified in a relevant legislative instrument. Proscribed exemptions include:

• Lecturers and faculty heads sponsored by an Australian University
• Regional medical practitioners
• Science applicants, such as researchers, scientists and technical specialists
• Certain Subclass 444 or 461 visa holders
• High income earning Subclass 457 or 482 visa holders

 

Skills Assessment

Each nominated occupation has an associated skills assessor. The skills assessor is a body tasked with assessing the skills, education and experience of a prospective migrant. Each assessor imposes its own criteria, meaning the skills assessment prerequisites vary with each different occupation. 

In short, at the time of application, the primary applicant must:

• Have had their skills assessed as suitable for the nominated occupation by the relevant assessing authority; or
• Have previously had their skills assessed as suitable for the nominated occupation by the relevant assessing authority in order to be granted a subclass 457 or TSS visa; or
• Be a person in either of the 2 categories of applicants specified in a legislative instrument, namely: academic applicants, or subclass 444 or 461 visa holders.

 

Employment History

At the time of application, the primary applicant must have been employed in the nominated occupation for at least 3 years, on a full-time basis, and at the level of skill required for the occupation, or be a person in either of the 2 categories of applicants specified in a legislative instrument, namely academic applicants, or subclass 444/ 461 workers.

The 3 years of employment does not need to be continuous and does not need to have occurred immediately before the application was made. Any period of employment during which an applicant changed careers, was unemployed, or took extended leave without pay will be excluded when calculating the period of employment.

Unpaid and volunteer work cannot be counted as employment experience. 

Casual employment, which is not undertaken on a full-time basis, will also not be counted towards the experience requirement.Consistent with the National Employment Standards (NES), employment will be considered ‘full-time’ where the visa applicant worked 38 hours per week. Employment experience may also be considered ‘full-time’ where the visa applicant worked for between 32 and 45 hours per week under an industry award or an agreement that was consistent with the NES, where applicable.

In some circumstances, decision makers may consider periods of part-time employment that are equivalent to 3 years full-time, where they are confident that the applicant’s experience and skills remain relevant and current.

 

English Proficiency

At the time of application, the applicant must have had competent English or circumstances specified in a legislative instrument existed. “Competent English” requires an English test score comparable to a score of 6 in each component of the International English Language Test System. Citizens of New Zealand, the United Kingdom, the United States, the Republic of Ireland and Canada are presumptively deemed to have “competent English.” 

There are no exemptions to the English language requirements.

 

Restrictions on applying for other permanent visa

To ensure that Subclass 494 visa holders remain living and working within regional Australia, they will be unable to make a valid application for the following visa subclasses for at least 3 years after their Subclass 494 visa grant:

• Subclass 820 (Partner)
• Subclass 124 (Distinguished Talent)
• Subclass 132 (Business Talent) visa
• Subclass 186 (Employer Nomination Scheme)
• Subclass 188 (Business Innovation and Investment (Provisional)
• Subclass 189 (Skilled – Independent)
• Subclass 190 (Skilled – Nominated)
• Subclass 858 (Distinguished Talent)

 

494 Visa Conditions

Subclass 494 visa holders must comply with the following conditions. Violation of any of the below may result in visa cancellation.

8578: The holder must notify Immigration of a change to any of the following within 14 days after the change occurs:

(a) the holder’s residential address;

(b)  an email address of the holder;

(c)  a phone number of the holder;

(d)  the holder’s passport details;

(e)  the address of an employer of the holder;

(f)  the address of the location of a position in which the holder is employed.

8579: While in Australia during the regional residency period, the visa holder must live, work and study only in a part of Australia that was a designated regional area at the time the relevant nomination in relation to the primary person was made.

8580: If requested, in writing, by the Minister to do so, the holder must provide evidence of any or all of the following within 28 days after the date of the request:

(a)  the holder’s residential address;

(b)  the address of each employer of the holder;

(c)  the address of each location of each position in which the holder is employed;

(d)  the address of an educational institution attended by the holder.

8581: If requested, in writing, by the Minister to do so, the holder must attend an interview:

(a)  at a place and time specified in the request; or

(b)  in a manner, and at a time, specified in the request.

8608: The visa holder must work only in the nominated occupation identified in the application for the most recent Subclass 494 (Skilled Employer Sponsored Regional (Provisional) visa granted to the holder.

 

Application Charges

First Instalment:

• Base application charge: $4,240
• Additional applicant charge for an applicant who is at least 18: $2,120
• Additional applicant charge for an applicant who is less than 18: $1,060

Second Instalment:

• Applicant: $9,800

(a) who was at least 18 at the time of application; and

(b) who is assessed as not having functional English; and

(c) who satisfies the primary criteria for the grant of a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and

(d) to whom item 3 does not apply

• Applicant: 4,890

(a) who was at least 18 at the time of application; and

(b) who is assessed as not having functional English; and

(c) who satisfies the secondary criteria for the grant of a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa; and

(d) to whom item 3 does not apply

• Applicant: Nil

(a) satisfies the primary criteria for the grant of a Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa on the basis of a nomination of the occupation of Minister of Religion; or

(b) is a member of the family unit of an applicant referred to in paragraph (a)

• Any other applicant: Nil

 

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