Regulation amendments to nomination and visa criteria for Subclass 457 Business (Long Stay) visa
9 November 2009 Legislation Change
Client summary
All applicants of Subclass 457 Business (Long Stay) visas are required to meet the relevant health requirements prior to the grant of the visa. In some circumstances, however, an applicant who fails to meet the health requirements due to a pre-existing disease or condition may still have the visa granted, if the employer who proposes to sponsor them makes a written undertaking to meet the costs related to the disease or condition that causes the applicant to fail to meet the health requirements.
Prior to 14 September 2009, if a holder of a Subclass 457 Business (Long Stay) visa sought to change their employer, they had to apply for a new Subclass 457 Business (Long Stay) visa. A visa holder whose visa was granted only after the Minister has waived the health requirement on the basis of such a written undertaking made by the sponsor, could only be granted a new Subclass 457 Business (Long Stay) visa if their proposed new sponsor also made the written undertaking to meet the costs of the disease or condition which causes the visa holder to fail to meet the health requirement.
As a result of amendments to the Migration Regulations 1994 ('the Regulations'), from 14 September 2009 it is no longer a requirement for holders of Subclass 457 Business (Long Stay) visas to reapply for a new visa when they change their employer. Therefore, it is possible for a Subclass 457 Business (Long Stay) visa holder who is the subject of a written health cost undertaking to move to a new sponsor, without their new sponsor having made a written health cost undertaking in relation to them.
To address this issue and ensure that such Subclass 457 Business (Long Stay) visa holders are covered by a written health cost undertaking at all times for the duration of their visa, further amendments to the Regulations are being introduced to achieve this.
Affected legislation
The following provisions of the Regulations are amended:
- Subregulation 2.72(7A) – inserted
- Subclause 4006A(2) – amended
- Subclause 4006A(3) – amended.
Additional information
Although it is no longer a requirement for Subclass 457 Business (Long Stay) visa holders to reapply for a new visa to change employer, it is a requirement that they must be nominated and have that nomination approved first before they can commence working for their proposed new employer (who must be an approved sponsor). To ensure employers who are approved sponsors and who propose to nominate a Subclass 457 Business (Long Stay) visa holder who is the subject of a written health cost undertaking also make the equivalent undertaking, a new criterion for approval of nomination to the above effect will be inserted.
In addition, there will be minor amendments to the health requirement itself in the criteria for grant of Subclass 457 Business (Long Stay) visa to ensure that it is always the sponsor who provides the written health cost undertaking, not the actual employer. This is to reflect the fact that due to the regulatory amendments which commenced on 14 September 2009, a Subclass 457 Business (Long Stay) visa applicant's sponsor and actual employer may not always be the same person.
Transitional provisions
Subregulation 2.72(7A) will apply in relation to applications for approval of nomination made, but not finally determined, before 9 November 2009, as well as all new applications for approval of nomination made on or after 9 November 2009.
Subclauses 4006A(2) and (3) as amended will apply in relation to applications for a visa made, but not finally determined, before 9 November 2009, as well as all new applications for a visa made on or after 9 November 2009.
Forms
Nil.
Instructions
PAM3: PAM3 has been amended to reflect these changes.