400 Temporary Work Visa Lawyers

Subclass 400 Visa allows Australian businesses to employ foreign workers with highly specialized skills for up to six (6) months. In comparison to other employer sponsored visas, Subclass 400 Temporary Work Visa provides a quicker, simpler and cheaper pathway to a working permit in Australia. For example, there is no need for sponsorship or nomination, or direct cost incurred to the Australian employer.

Although it is largely dependent on the circumstances, the applicant’s skills must be highly specialised that such skills are not readily available in the Australian labour market. Not only the benchmark is strict, but the subject work should not be ongoing. Any suspicion, that the intention of the Temporary Work Visa applicant is to settle in Australia or remain with the prospective employer for a long term, may constitute a ground for refusal.

Subclass 400 is categorised into 2 streams:

• Highly Specialised Work stream; and
• Australia’s Interest stream

Under either stream, the applicants must be outside of Australia at the time of application.

 

Highly Specialised Work Stream

Subclass 400 Highly Specialised Work stream is intended for Australian businesses that require services of highly specialised foreign workers on a short term basis. Applicants lacking manifest specialisation, or with specialisations readily available within the Australian labour market, will not be eligible for this visa. The criteria of this stream include:

• Applicant is outside Australia at the time of application;
• Applicant is invited by an Australian business for work, and reasonably required to be in Australia to carry out the work;
• Applicant possesses attributes and background which are consistent with the proposed work;
• Applicant is a genuine temporary entrant;
• The work to be undertaken is highly specialised and not ongoing;
• Applicant is not an entertainer (exceptions apply however);
• Granting the visa would not result in adverse consequences on employment, training or work conditions for Australian citizens, permanent residents or eligible New Zealand citizens.

 

Consistent Attributes and Backgrounds

Applicants must have personal attributes or employment backgrounds which are relevant to and consistent with the nature of the proposed work. In this aspect, the relevant factors may be:

• Current occupation and skill level;
• Academic qualifications;
• English proficiency;
• Experience in having undertaken similar activities or work.

The proposed work requires physical presence of the Applicant in Australia. For any work which can be undertaken remotely, this visa will unlikely be granted.

 

Highly Specialised Work

Applicants in this stream must produce evidence that the work requires highly specialised skills, knowledge or experience. The statutes do not provide a clear-cut definition of “highly specialised”. The Department however provides guidance as to relevant pieces of evidence that will be considered:

For Standard Employment

• Statement from the Australian employer;
• Assessment by a peak industry body;
• Evidence from large employment agencies;
• Comment from a union attesting that the skills cannot be reasonably sourced in Australia.

For Project-Based Employment

• Evidence from the Australian employer about its size and duration;
• Schedule and stages of work to be performed;
• Number of Australians citizens or permanent residents employed or to be employed;
• Number of jobs generated and to be generated for Australians.

This stream is appropriate for foreign workers with specialised, often proprietary, expertise in technologies developed overseas. The specialised knowledge must be unavailable or of limited availability in the Australian workforce and the role must be non-generic. Typical situations endorsed in the policy include:

• Maintenance or installation of equipment requiring specialised or proprietary knowledge;
• Advisory roles concerning industry techniques or equipment not currently used in Australia;
• Trainers being imported to support introduction of new products, concepts or methods;
• Internal auditor of a multinational corporation needed to audit a related entity in Australia.

 

Non-ongoing Work 

As a short stay visa, the applicant needs to demonstrate that the likely duration of the work engagement is less than 6 months. Work that will likely be longer than 6 months until completion will be regarded as ongoing and the visa application will therefore fail. Other grounds of refusal include:

• Frequent travels to Australia in the past;
• Any other arrangements that the applicant may have in place;
• Whether the Australian employer seems to be rotating multiple foreign employees for the same position.

 

Entertainers 

In most instances, entertainers are directed to apply for Subclass 408 visas as they are not eligible for Subclass 400 visas. Exemptions exist in limited circumstances, such as:

• Promotional activities by entertainers where activities do not include performance;
• Speakers whose principal intent is to impart information, knowledge or facts;
• Performance preparation workshops.

An example of the first permissible activity may be the appearance of an actor on local television or talk radio for promotion of an upcoming performance or motion picture. Such activities are merely promotional in nature, as the entertainer will not be engaging in a performance whilst in Australia.

 

No Adverse Employment, Training or Work Consequences

The purpose of Subclass 400 visas is to fill highly skilled vacancies for short duration when they cannot be filled with local workers. The Department is stringent on ensuring that the Australian employers are not abusing this visa scheme by undercutting local wages or hiring foreign talents under unfavourable employment conditions. This criterion is assessed in 2 stages:

• Assessing for risk factors, where the risk factors include:
• Whether the applicant holds a passport that is not eligible for Subclass 601 or 651 visas (as these visas are restricted to particular countries who are either deemed as “low-risk” for migration purposes due to their relative economic conditions or with whom Australia maintains bilateral treaties requiring access to the aforementioned subclasses);
• Where the visa is requested for more than 8 weeks and the occupation is not in the Australian and New Zealand Standard Industrial Classification Groups (ANZSIC) 1, 2 or 3;
• In any case the visa is requested for more than 3 months whether in isolation or aggregation through multiple entries;
• Whether the Australian business appears to be rotating foreign workers under multiple Subclass 400 visas;
• Nature of the Australian business to determine if there is a need for the specialised worker; and
• If any risk factor has been identified, scrutinising the proposed work conditions.

 

Australia’s Interest Stream

In extraordinary circumstances, a Subclass 400 visa may be issued on the grounds that it would be in Australia’s national interest. According to the Department’s guidelines, this may include circumstances where:

• Emergency workers are assisting in a disaster or emergency, such  as bushfire;
• Refusing the application would damage Australia’s relationship with a foreign Government;
• The refusal would result in Australia missing out on a significant benefit;
• The refusal would adversely affect Australia’s trade or business opportunities.

Under this stream, applicants are not required to prove that the work is not ongoing or will not cause adverse employment consequences. Nevertheless, if an applicant in this stream also satisfies the criteria for the visa grant in the other Highly Specialised Work stream, the visa will likely be granted in the latter stream.

 

Frequently Asked Questions – Subclass 400 Visa Lawyers

 

Q: How long can I stay on a Temporary Work Visa?

A temporary work visa cannot be issued for any longer than 6 months. This is the maximum duration for a Subclass 400 visa. A shorter duration may be granted where deemed appropriate by the Department. 

 

Q: Is there any exemption to permit an application whilst inside Australia?

It is a requirement of the visa that applications be made whilst the applicant is located outside of Australia. This is a strict requirement and no qualifiers are given in relation to this criterion. You cannot submit a Subclass 400 application whilst physically present in Australia.

 

Q: Can I transition to permanent residency from a Subclass 400 Visa?

Unlike Subclass 482, or the previous Subclass 457, the temporary work visa does not offer any special pathway to permanent residency. This visa is intended for short-term work engagements only, and does not, in of itself, give rise to any special permanent residency pathways.

 

Q: Can I study on a Temporary Work visa?

Subclass 400 temporary work visa applicants cannot be looking to engage in a course of study which would result in a formal award, such as a degree or certificate. 

In extremely narrow circumstances, training may be permitted, provided it does not contribute to the requirements of a reward. Such applicants must still be undertaking highly specialised work, meaning the circumstances in which training is appropriate are limited. One such example may include a highly specialised doctor being trained in new surgical procedures.

 

Q: I am a recent graduate. Can I qualify for a Subclass 400 Visa?

The required level of specialization will likely exclude most fresh graduates from qualifying under the highly specialised work stream. If you are not adequately skilled so as to be capable of performing highly specialised work, this visa will not be an appropriate option.   

 

Application Charges

The costs of the Subclass 400 visa are as follows:

• Base application charge: $325
• Additional applicant charge for an applicant who is at least 18: $325
• Additional applicant charge for an applicant who is less than 18: $80

Note that no application charge is payable for foreign emergency workers or persons acting on behalf of a foreign Government.

 

Visa Conditions

In relation to the main applicant, the following visa conditions must be imposed:

8107: Approved employment only.

8303: The holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community.

In relation to the main applicant, the following may be imposed:

8503: The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

In relation to a secondary applicant, the following must be imposed:

8101: The holder must not engage in work in Australia.

 

 

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