FAQ Covid-19 - Sponsors

Our business is no longer able to provide full time employment to a temporary sponsored visa holder (subclasses 482, 457). Can we reduce sponsored workers' hours or move them to part-time work?

Ordinarily, the sponsored position must be a full-time position and the earnings must be as per the approved nomination. It is unclear at this stage what the Department’s approach will be in situations where a full-time position has now become part-time due to the Covid-19 crisis.

Under policy, the related regulation would be considered met where periods of part-time work occur in connection with:

• Graduate return from maternity leave;
• sick leave or a work-based injury; and
• significant personal reasons.

The circumstances listed above also need to meet the following criteria:

• the pro-rata hourly rate of the approved nominated salary of the sponsored person does not decrease;
• the role and duties performed by the sponsored person remain consistent with the position approved at nomination;
• the nominee is not employed under a Labor Agreement which was restricted to full-time arrangements only;
• this arrangement is mutually agreed upon by the sponsor and sponsored person. Sponsors must maintain written evidence to demonstrate this agreement and document the reason for the change.

Policy does not currently specify what is covered under ‘significant personal reasons’ and whether this can be extended to cover businesses affected by the coronavirus restrictions.

Can sponsored workers’ wages be reduced?

It is possible to reduce wages by lodging a new nomination with a lower wage, provided the wage is still market rate and above the Temporary Skilled Migration Income Threshold (TSMIT), currently AUD$53,900.

Our business has had to stand down temporary sponsored visa holders. How long are they allowed to be on Leave Without Pay (LWOP)?

Ordinarily, Departmental policy allows for up to three months of LWOP however, longer periods can apply in ‘exceptional circumstances’. For 457 visa holders, policy specifies up to 12 months, however, the policy for 482 visa holders does not specify a time limit.

As per Departmental policy, LWOP arrangements must:

• be mutually agreed upon by the sponsor and sponsored person; and
• a formal application for leave without pay must be applied for by the employee and formally approved by the employer.

These changes must be communicated to the Department in line with sponsorship compliance requirements.

It should be noted, as per current legislation, that the visa may be subject to cancellation if LWOP is extensive and the Department is satisfied that the visa holder has ceased to have a genuine intention to perform that occupation.

Currently, these circumstances are addressed on a case by case basis, however, we expect the Department will soon release Covid-19 specific policy surrounding the ‘exceptional circumstances’ mentioned above.

It should be noted that periods of LWOP may not be included as time spent working for the sponsoring employer for the purpose of a permanent visa (such as a Subclass 186 in the Temporary Residence Transitional stream).

Can the business claim the JobKeeper subsidy for temporary sponsored employees?

No, as per the information available in the ATO’s website, the JobKeeper subsidy is only available for Australian Citizens, Permanent Residents and New Zealand Citizens (Subclass 444 Visa holders). There are some exemptions for Protected Special Category Visa holders and Non-protected Special Category Visa holders who have been residing continually in Australia for 10 years or more. For more information on the JobKeeper eligibility, please refer to the government’s factsheet here.

Will temporary visa holders have access to financial support for the Government whilst on LWOP? 

Temporary visa holders are usually not eligible for social benefits. Below is a summary of the entitlements announced by the Federal Government on 4 April 2020 for temporary visa holders.  

• 457/482 TSS visa holders who have been stood down, but not laid off, will maintain their visa validity (with businesses having the opportunity to extend their visas as per normal arrangements).
• Businesses are also able to reduce the hours of the 457/482 visa holder without the person being in breach of their visa conditions.
• 457/482 visa holders will have access of up to $10,000 of their superannuation in this financial year.
• 457/482 visa holders who have been laid off should depart Australia in line with their existing visa conditions if they are unable to secure a new sponsor and lodge a new 482 nomination and visa.
• Should a 4-year visa holder be re-employed after this pandemic, their time spent in Australia will count towards their permanent residency skilled work experience requirements.

Can my temporary sponsored visa holders do other work within the business?

457 and 482 visa holders are limited to working only in their nominated occupation and sponsors are obliged to ensure this is enforced. If a visa holder is found working in a different occupation, their visa may be cancelled, and the sponsor may become subject to sanctions.

Under policy, the work condition will not be considered to have been breached if the change of duties is only temporary and will not exceed 60 consecutive days. However, if the visa holder's duties are revised for a period of more than 60 days or if they are regularly changed, action must be taken to obtain a new nomination (457) or new nomination and visa (482) as required.

Can temporary visa holders work for another employer and come back to our business when things improve?

457 and 482 visas holders are limited to only working for their sponsoring employers (or associated entity). In this situation, the new employer would need to sponsor the visa holder and have this approved (new nomination for 457 or new nomination and visa for 482 visa holders) before the visa holder can commence work there.

Another application would need to be lodged to return the visa holder to the original business. 

The Department may address any relaxation to these rules as part of their Covid-19 specific measures.

My employee is currently offshore, can my employee return to Australia on their 457 or 482 visas?

There is a process for applying for an exemption to the travel ban which may be applicable in some cases. We do not have any further information about what may constitute an exemption, other than the limited examples given on the Department of Immigration’s website:

• care for close relatives who are seriously ill; and
• attend the funeral of a close relative.

There is no guarantee of success, and thoughts are that the restriction will only be lifted in genuinely exceptional, compelling and compassionate circumstances.

Where an exemption is granted, the employee would be expected to go into enforced 14-day quarantine period upon arrival in Australia.

Can my employees work from overseas on their 457 or 482 visas if they cannot return to Australia?

If it is possible for the employee to perform their role remotely, then they can still work from overseas. A written agreement between the employer and employee should be put in place for record-keeping and sponsorship obligation purposes.

It should be noted that work performed overseas may not be included as time spent working for the sponsoring employer in Australia for the purpose of a permanent visa (such as a Subclass 186 in the Temporary Residence Transitional stream). The Department will assess this on a case-by-case basis.

Our business has had to permanently dismiss temporary sponsored employees. Will they be entitled to any financial assistance from the Government or early access to their superannuation?

Temporary visa holders are usually not eligible for social benefits. Below is a summary of the entitlements announced by the Federal Government on 4 April 2020 for temporary visa holders.  

• 457/482 TSS visa holders who have been stood down, but not laid off, will maintain their visa validity (with businesses having the opportunity to extend their visas as per normal arrangements).
• Businesses are also able to reduce the hours of the 457/482 visa holder without the person being in breach of their visa conditions.
• 457/482 visa holders will have access of up to $10,000 of their superannuation in this financial year.
• 457/482 visa holders who have been laid off should depart Australia in line with their existing visa conditions if they are unable to secure a new sponsor and lodge a new 482 nomination and visa.
• Should a 4-year visa holder be re-employed after this pandemic, their time spent in Australia will count towards their permanent residency skilled work experience requirements.

Temporary visa holders who have departed Australia and wish to access their superannuation can request voluntary cancellation of their visa and apply for a ‘Departing Australia Superannuation Payment’. Further information is available here.

Is the business responsible for the repatriation of temporary sponsored visa holders?

Yes, as per sponsorship obligations, the business must pay for ‘reasonable and necessary’ travel costs to allow the sponsored employee and their sponsored family members, leave Australia. These include:

•  travel from the employee's usual place of residence in Australia to their departure point from Australia;
• travel from Australia to the country for which the employee holds a passport and intends to travel to; and
• economy class air travel or reasonable equivalent costs.

Travel costs must be paid within 30 days of receiving the request. 

If we terminate the employment, is the business eligible to apply for a refund of the SAF?

There are currently no provisions for a refund of the Skilling Australians Fund (SAF) where employment is terminated. If an employee was to resign within the first 12 months of employment, it is possible to apply for a partial refund.

What are my other obligations as a Standard Business Sponsor?

From an Immigration perspective, Standard Business Sponsors are required to continue to comply with their sponsorship obligations during this period.

Any changes to employment circumstances of temporary sponsored employees need to be notified to the Department within 28 days in line with sponsorship obligations.

You can access a comprehensive list of your sponsor obligations by visiting the Department’s website.

Our business is no longer able to provide full time employment to a permanent sponsored visa holder (subclass 187,186). What are our obligations?

As per the approval of permanent sponsored nominations, any changes to employment circumstances must be notified to the Department. Ordinarily, positions must remain full time for the first two years from the time of visa grant. For 186 visa holders however, there are no provisions for the cancellation of their visa should this not occur.

For 187 Visa holders, though there are cancellation provisions within the legislation if the 2 years of employment (full-time) with the sponsoring business post visa grant is not completed, there are also policies that address exceptional circumstances and circumstances outside of one’s control.

Businesses are required to notify the Department of changes in circumstances, but it is highly unlikely cancellations will be pursued given the worldwide current crisis.

Can the business claim the JobKeeper subsidy for permanent sponsored employees?

If their visa has been granted already, 186 and 187 visa holders are considered permanent residents. As per the information available in the ATO’s website it appears that business will be able to seek JobKeeper subsidy for these visa holders. However, as this is outside of the scope of Migration Law, we recommend that you contact the ATO directly. More information on the JobKeeper subsidy can be found here.

Can our permanent sponsored employees apply for the JobSeeker allowance if we need to dismiss them?

Permanent visa holders generally must undergo a waiting period before being eligible for benefits, however, the government has announced that this has been temporarily lifted (for six months) to allow them access during the Covid-19 crisis.

We recommend that visa holders contact Centrelink directly, as this area is outside the scope of migration advice.