The answer, as with many legal questions, is a resounding “Maybe.” When it comes to employing overseas workers, it might be helpful to begin with the assumption that Australian immigration laws are generally designed to benefit Australians. If you do however plan on employing people you know and trust from your home country, an immigration lawyer can help. But first, in order to bring your business and your workers from overseas to Australia, one of three existing visa systems will need to be accomplished.
Visa systems required for employing overseas workers
If you plan on employing overseas workers that you know and trust, there are several things you should know first, including the type of visa options there are.
The visa options include the:
- temporary skill shortage (TSS) visa;
- employer nomination scheme (ENS); or
- regional sponsored skilled migration scheme (RSMS).
These schemes generally require some qualifying efforts on the part of both the employer and the employee.
Temporary Skills Shortage visa
The TSS visa is a temporary visa that permits a full-time employee to work in Australia in a nominated position for an approved business sponsor. TSS visa holders may also bring dependent family members with them. The TSS visa has a short-term (2-year) stream and a medium and long-term (up to 4 years) stream. Individuals in the latter group may ultimately apply for permanent residency. The process has three steps.
First, in order to nominate someone for a TSS visa, an employer must qualify as an approved business sponsor. There are several sub-categories of approval – some more suitable for businesses who want to sponsor a large number of employees or for those businesses who have no legally established presence in Australia. In general, though, business approval requires a demonstration of good financial standing and compliance with relevant laws.
After a company has qualified, the nomination process requires that the business select an occupation from an approved occupations list in which a temporary shortage of workers exists, conduct labour market testing and establish a pay scheme that complies with legally required income thresholds.
Finally, the employee must apply for a TSS visa and demonstrate that he or she has at least two years’ experience in the relevant occupation and meets certain other terms and conditions related to health, language proficiency and character requirements.
Employer Nomination Scheme visa
The ENS visa is a permanent visa that many use to transition to permanent residency. The process is similar to the second and third steps in the TSS visa application process. There are several different application pathways for sponsor skilled workers. The first is open to those who have worked on a TSS visa with the same employer for three years. The second referred to as the “direct entry” stream, applies to employees who can satisfy skills competencies and demonstrate that they have been in the relevant skilled occupation for at least three years. The last stream is relevant to employees who are working under a labour agreement with an employer.
Regional Sponsored Skilled Migration visa
The RSMS visa is also a permanent visa that allows sponsored employees to work in regional areas with specific labour shortages. For an employee to apply, the position needs to be approved by a regional certifying body. In addition, as with the other skilled visa schemes, a business must nominate a position and an employee needs to satisfy certain eligibility requirements.
The three pathways to obtain an RSMS visa – transition to permanent residency, direct entry and under a labour or employer agreement – are like that lead toward an ENS visa.
As a distinct but related issue with employing overseas workers, consider the situation of a key executive of an approved business who wants to immigrate to Australia with his or her family under any of these visa systems. Suppose, in addition, that the very busy executive also wants to bring a long-time household worker, like a beloved nanny. Is this also possible?
The answer again is, “Possibly,” but only if the senior executive or diplomat and family are in Australia for tourism or during a working holiday.
Even then, the visa qualification process for the domestic worker may require the demonstration of a compelling reason such as the needs of small children and or the worker’s status as a permanent member of the executive’s household. The employee’s compensation must also comply with Australian laws and regulations. The importance of protecting domestic workers from exploitation adds additional levels of complication to this process.
If you have further questions about employing overseas workers, please call the immigration and employment law attorneys at Owen Hodge Lawyers on 1800 770 780 to schedule a consultation. We would be happy to meet with you to help you explore your options. We also have the
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Read more about the immigration process, latest visa updates and more on the Owen Hodge Blog, including our recent post regarding changes for 457 visa holders.