Employer Sponsored Stream

The Employer Sponsored stream of the Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa permits an Australian employer to sponsor a foreign worker for a temporary visa with options to transition to permanent residency.

 

494 Visa Criteria

Applicants must be sponsored by a regional Australian employer under an occupation which appears on the Regional Occupation List. In addition to this, prospective applicants must meet the following criteria to qualify:

  • Be below 45 years of age unless an exemption applies.
  • Have worked in your nominated occupation for at least three (3) years.
  • Hold a valid positive skills assessment for your occupation.
  • Obtain an English test score equivalent to 6 in each band in IELTS.

 

Skills Assessment

Every occupation has an associated skills assessment. This skills assessment is generally conducted by a proscribed professional association or statutory body. Criteria differ greatly between occupations, meaning you should always seek legal advice before submitting a skills assessment application.

 

Nomination Criteria

In order for a nomination to be approved, it must be proven 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;
  • Dependant or secondary visa applicants are stated in the nomination;
  • 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;
  • The sponsor has not engaged in discriminatory recruitment practices; and
  • The “Specified Body” has advised that the nominee will be paid no less than the market salary rate for the nominated occupation. 

 

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 22/022. 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 this 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 scheme must not be exploited in order to engage foreign workers on terms less favorable to those that would otherwise be offered to Australian workers in the same positions. This means that the remuneration offered to prospective 494 visa applicants must be commensurate with the average annual market salary rate for the nominated occupation. However, if a nominated position offers a pay level above $250,000 per year, you will not need to prove whether your salary is at the market level.

 

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.

 

Once your 494 Visa is Granted

This visa permits you to live and work in regional Australia only. You may transition to permanent residency to a Subclass 191 visa after having lived and worked in regional Australia for at least three (3) years.

 

494 Employer Sponsored Visa
Australian Regional Sponsor Visa
NSW | VIC | QLD | SA | WA

 

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