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Working Holiday Maker (WHM) Visa: Transitioning to a 457 Temporary Work (Skilled) Visa


Written By John Unger | Thu, Oct 27, 2016 John Unger

An increasingly common scenario brought to us by clients is a request to assist with 457 visa sponsorship for a young person on a Working Holiday Maker visa who the company has employed for a few months. 

The Working Holiday Maker visa (subclass 417) – together with the complementary Work and Holiday Maker visa (subclass 462) – gives young people who have not yet turned 31 the chance to live and work in Australia for 12 months.  As many of the visa holders are enthusiastic, skilled workers, it is understandable that employers would contact us to see if they can use 457 visa sponsorship to keep the person on the payroll.

There are a few issues that can typically arise in this situation and are worth bearing in mind.  These principally result from a certain mismatch between the Government’s objectives when designing the WHM and the 457 visa.

Consideration - Skills
•  Working Holiday Makers (WHMs) are under 31 years old. They may or may not hold formal qualifications and may have limited work experience.
•  The 457 visa programme is for highly skilled, qualified candidates.  Depending on the occupation being sponsored, the skill level generally required is:
    o a degree or five years’ experience; or
    o a diploma or three years’ experience

Bear in mind that someone may not meet these very specific skills requirements for a 457 visa no matter how well they are actually doing the job. 

Tips:
•  Consider what the job duties for the WHM will be if you sponsor them.  You may currently be employing the WHM in a role that does not require formal qualifications or years of experience.  If so, it is likely you won’t be able to sponsor them for a 457 visa unless there is a more skilled position for them in your company. 
•  Ask to see a copy of the person’s CV.  It is not uncommon for migration agents to receive enquiries from employers simply because the WHM has been doing such a great job and seems to have all the skills needed.
•  Keep in mind that there is no English language test needed to obtain a Working Holiday Maker visa, but there may be an English language test needed to obtain a 457 visa. The person you want to sponsor may need to sit an English test and reach the necessary score as part of the process.

Consideration - Remuneration
•  When sponsoring a skilled worker, it is necessary to offer the equivalent terms and conditions afforded to an Australian worker.  Under the rules for a 457, this means two things:
    o you must be offering the going market rate
    o the going market rate must not be lower than the Temporary Skilled Migration Income Threshold (TSMIT).  TSMIT is currently an annual salary of $53,900 (not including superannuation).

As the WHM is a young person you may have picked up through casual recruitment, they may be employed in a fairly junior position with a corresponding salary. 

Tips:
•  Consider what you pay your Australian staff doing work similar to the job for which you want to sponsor the WHM visa holder.  Or, if there is no equivalent Australian worker, consider what salary you would offer if you were to advertise the job. 
•  It will be necessary for the proposed salary to be consistent with the going market rate and not be below TSMIT.


Consideration - Timing
•  Working Holiday Makers hold visas which are subject to time constraints.  They are only allowed to work for 6 months with the one employer.
•  They can request an extension of the 6 months if they are sponsored for a 457 visa, but requests of this type can take up to 2 weeks to process.

In the case where an applicant is eligible for the 457 visa, consideration must be given to the timing of the application against the applicant’s current visa status. Working Holiday Makers are allowed 6 months of employment with each employer. In a case where the 6 months is fast approaching, the applicant may be able to continue working past the 6 months. To do so, they will need to lodge a valid 457 visa as a Working Holiday visa holder in Australia, and request a waiver to the 6-month limitation on the basis of the 457 visa lodgement. If granted, they will be able to continue working for their employer while their 457 visa undergoes processing.  If they lodge the 457 visa after the 6 months is complete, they will need to wait until the waiver is granted to return to work.

Tip:
•  If you don’t want to lose continuity of service, make sure the paperwork is lodged with the Immigration Department 2 to 3 weeks before the WHM reaches their 6 month’ work anniversary.

Consideration – Genuine Position
One of the current topical issues around 457 visa sponsorship is the Immigration Department’s criteria for determining whether a sponsored position is ‘genuine’.  Unfortunately, certain aspects of the situation of a person on a WHM visa being sponsored for a 457 visa can trigger concerns from an Immigration Case Officer.  One particular such factor is:

•  The nominee is currently in Australia and already working for the sponsor and/or the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa

If an immigration case officer raises concerns about the genuineness of the position, this can cause delays to the application process and, potentially, lead to a refusal. Generally, the Department provides an opportunity to comment and provide further documentation to respond to any concerns by issuing a request for further information.

The following factors will add weight to the claim that the position is a genuine:

•  There is evidence relating to a previous occupant employed in the position
•  There is evidence that the position has been advertised and filled through a transparent recruitment process
•  The position is a highly skilled position with commensurate job duties
•  The position fits clearly within the scope of the activities of the business.
•  If the position is new, evidence that demonstrates that new positions are required

Tip:
•  When sponsoring a WHM visa holder, it can be prudent to provide information to address the genuineness criteria when the paperwork is lodged.

Consideration – Sponsorship
In considering all of the above, don’t forget that your company must be an approved Business Sponsor in order to sponsor 457 visas.

Tip:
• If your company has not sponsored 457 visas in the past, contact TSS Immigration for advice on what is needed to become a Business Sponsor.


Upcoming Changes to the Working Holiday Visa Program in 2017

Please see our article on the upcoming changes to the Working Holiday Visa, which will come into effect on 1 January 2017, or Contact TSS Immigration on 03 9421 1020 for more information.

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