Recovering Costs of a 457 Visa Application - Employer Obligations
Written By Michelle O'Sullivan
Mon, Nov 27, 2017
As part of the 457 visa programme, both visa applicants and sponsors have various obligations with which they must comply.
Often when these obligations are not met, it is because the relevant party was not fully aware of the obligation in the first instance, or they misunderstood what they were supposed to do.
One of the most commonly misunderstood sponsor obligations, is the obligation to “Not recover, transfer or charge certain costs to another person”.
To put it simply, this means that a sponsoring business cannot insist that a 457 visa applicant pays certain costs relating to being sponsored.
What are these ‘certain costs’?
This includes costs that relate to:
- the recruitment of the person you sponsored
- becoming or being a sponsor or former approved sponsor.
Generally, there are three steps to the 457 application process. The first step is for the business to become an approved standard business sponsor. The second step is for the business to nominate a position which needs to be filled by an overseas citizen within their business. The third step is for this overseas citizen to apply for a 457 visa.
It is not permissible for a visa applicant to pay for any of the costs relating to steps one and two. The applicant may pay the costs of the third step. However, the business cannot agree in principle to pay costs relating to an employee’s 457 visa application, on the basis of an agreement that requires the employee to reimburse them later.
Example scenarios in which a sponsor breaches its obligations:
A. Rob’s Restaurant Pty Ltd wishes to sponsor a Head Chef. Having been unable to find a suitable person through advertising, the business owner, Rob, contacts TSS Immigration to source a skilled Head Chef. It is decided that the business will sponsor and employ Jane Doe. Jane has many years of experience and is currently residing in the UK. Jane doesn’t have enough money to cover the visa application fee and the professional fees charged by the migration agent, so the business agrees to pay for the whole application on her behalf, including the fees payable to TSS for the recruitment process and the immigration process. The business provides Jane with an employment contract which states that Jane will need to pay the company back all of this money, in the form of weekly deductions from her wages.
B. Rob’s Restaurant Pty Ltd wishes to sponsor Jane Doe. They agree to do this, but only if Jane will pay all fees relating to the business becoming an approved sponsor, as well as for the nomination and visa. Further to this, they expect Jane to pay all costs relating the recruitment process, and the required expenditure on training Australian staff.
Example scenarios in which a sponsor meets its obligations:
A. Rob’s Restaurant Pty Ltd wants to sponsor Jane Doe. They pay all cost relating to the business sponsorship, the nomination and the visa application. These costs include the fees payable to DIBP, and the professional fees to the migration agent.
B. Rob’s Restaurant Pty Ltd wishes to sponsor Jane. They will first need to lodge an application to become an approved standard business sponsor, and then lodge a 457 nomination on Jane’s behalf. The business is happy to pay all costs for these elements but does not wish to pay for Jane’s visa application, or the migration agent fees, for the visa application. The business reaches an agreement with Jane that she will pay her own visa application fee, as well as the professional fees charged by the migration agent to submit the visa application.
The Department of Immigration and Border Protection regularly initiates monitoring of sponsoring businesses. If a business is found to have breached its obligations as a sponsor, sanctions can range from a warning to sponsorship cancellation and significant fines, depending on the scale of the misconduct.
Standard business sponsors, or 457 visa holders, who are unsure as to whether they are fully compliant with their obligations, should contact TSS Immigration for a review of their current practices.
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