You Can Nominate an Existing Subclass 482 Visa Holder — But Be Cautious

If you are considering nominating an existing Subclass 482 visa holder, there are several important matters you should check before proceeding. Although an existing Subclass 482 visa holder may be able to commence employment with a new sponsor without applying for a new visa, the new employer must still carefully consider the sponsorship and nomination requirements.

1. Ensure Your Business Is an Approved Standard Business Sponsor

Before lodging a nomination, ensure that your business is an approved Standard Business Sponsor (SBS).

If your business does not currently hold an approved SBS, the sponsorship and nomination processes may, in some circumstances, be prepared and lodged together. We can assess your circumstances and explain the applicable requirements before you proceed.

2. Complete Labour Market Testing Before Lodging the Nomination

Labour Market Testing (LMT) generally needs to be completed before the nomination application is lodged.

There are circumstances in which an applicant may be exempt from LMT, including certain exemptions arising from the applicant's passport country and applicable international trade arrangements.

Do not rely solely on information obtained through internet search engines. Immigration requirements can change, and information published online may be outdated or may not apply to your particular circumstances.

3. Check the Annual Market Salary Rate and the Applicant's Existing Salary

Salary requirements are an important consideration when nominating an existing Subclass 482 visa holder.

The Department of Home Affairs updates relevant salary thresholds from time to time, including annual updates that generally take effect from 1 July. You should ensure that the proposed salary satisfies the applicable requirements and that the Annual Market Salary Rate (AMSR) has been properly considered.

We also recommend reviewing the applicant's existing salary and employment arrangements before deciding on the proposed salary.

The applicable salary requirements can be complex. We can review the proposed position and salary and explain the relevant legal requirements during an initial consultation.

4. Check the Applicant's Family Members

Check the details of the applicant's family members who are included in, or otherwise associated with, their existing Subclass 482 visa arrangements.

This information can be particularly important for budget planning if you intend to sponsor the applicant for permanent residence in the future. Depending on the circumstances, family members may also need to be considered in relation to future visa applications and associated costs.

5. Check the Applicant's Current Work Rights Through VEVO

Always check the applicant's current visa status and work rights through the Department of Home Affairs' Visa Entitlement Verification Online (VEVO) system.

Do not assume that an applicant has unrestricted work rights simply because they hold a Subclass 482 visa.

Before conducting a VEVO check, ensure that you have obtained the applicant's appropriate consent where required. Keep a record of the consent and the VEVO check in your business records.

6. Understand the Visa Conditions

If you are unsure about the visa conditions attached to the applicant's current visa, seek professional advice before allowing the applicant to commence employment.

Visa conditions can have important consequences for both the visa holder and the sponsoring business. It is therefore important to understand what the applicant is permitted to do under their current visa arrangements.

7. Check Health Insurance Arrangements

Ask the applicant whether they have appropriate health insurance and whether their family members, if any, are also appropriately covered.

Health insurance requirements may apply as a visa condition. The applicant should ensure that they continue to satisfy any applicable health insurance requirements while holding their visa.

8. Check the Applicant's Previous Employment and the 180-Day Period

An existing Subclass 482 visa holder may, in certain circumstances, have a period of up to 180 days to cease working for their previous sponsor and make arrangements to commence employment with a new sponsor.

However, do not assume that the full 180-day period is available.

Always check the applicant's last day of work with their previous employer and calculate the relevant period carefully. If the applicant has already used some or all of the applicable period before commencing employment with your business, this may affect their visa status and future options.

If you are uncertain about the applicable timeframe, obtain professional advice before proceeding.

9. The Good News: A New Visa May Not Be Required

One of the advantages of sponsoring an existing Subclass 482 visa holder is that, depending on the circumstances, the applicant may not need to apply for a new visa simply because they are changing employers.

However, the new employer must still satisfy the applicable sponsorship and nomination requirements, and the applicant must continue to comply with their visa conditions.

10. The Previous Employer May Be Able to Request a Refund of Part of the SAF Levy

In some circumstances, a previous sponsoring employer may be able to request a refund of part of the Skilling Australians Fund (SAF) levy paid in connection with a nomination.

The eligibility for a refund depends on the circumstances and the applicable rules. If you are a previous sponsor and believe you may be entitled to a refund, it is important to consider the relevant requirements and act promptly.

Nominating an existing Subclass 482 visa holder can be a practical option for an employer, but it should not be treated as a simple transfer of employment. Before the applicant commences work, the new employer should carefully review the business's sponsorship status, LMT requirements, salary requirements, visa conditions, work rights, previous employment history and any other applicable nomination requirements.

 If you are unsure about any aspect of the nomination process, seek professional legal advice before taking action.

Book Consultation: kelly.lim@shlmigrationlawyers.com

Call: 0404 402 101

Legal Disclaimer - The information provided on this blog is for general informational and educational purposes only and does not constitute legal advice or a legal opinion. The content is not intended to substitute for advice from a qualified legal professional.