Frequently Asked Questions about changes to Subclass 457 program – Change to pathways for ASCO 5-7 Occupations
An applicant for a Subclass 457 visa under standard business sponsorship arrangements must be nominated for an activity which corresponds to the tasks of a gazetted occupation.
From 15 May 2009 the range of gazetted occupations has been revised to include only gazetted occupations in Australian Standard Classification of Occupations (ASCO) major groups 1 to 4.
This change will particularly affect employers in regional areas as they will no longer be able to nominate activities that have tasks that correspond to the tasks of occupations in ASCO major groups 5 to 7.
The most current approved list of occupations is specified in a Legislative Instrument, and is listed on the department's website.
See: Nomination Eligibility
Regional employers seeking to fill positions relating to occupations that have been excluded from the standard sponsorship arrangements may wish to seek to enter into a labour agreement.
Changes to the Subclass 457 visa program – Changes to gazetted list of occupations
What are the changes to the gazetted list of occupations?
On 1 April 2009 the government announced that the range of occupations available under standard business sponsorship arrangements has been revised to include only gazetted occupations in ASCO major groups 1 to 4. This change takes effect from 15 May 2009 and will affect employers in specified regional areas as they will no longer be able to nominate activities for overseas workers that have tasks that correspond to the tasks of certain occupations. The occupations affected are those in ASCO major groups 5 to 7.
What are the gazetted occupation requirements under the Subclass 457 Visa Program?
A minimum skill level applies to all positions to be filled by overseas employees under the standard business sponsorship arrangements for the Subclass 457 Visa Program. The tasks of the activity must correspond to the tasks of a skilled occupation in a gazetted list of skilled occupations. These occupations are those in the ASCO major groups 1 to 4 inclusive.
Employers operating in certain regional areas of Australia, may still apply to a Regional Certifying Body to access certain concessions.
The most current approved list of occupations is specified in a Legislative Instrument, and is listed on the department's website.
See: Nomination Eligibility
Why were the changes to the gazetted list of occupations introduced?
A number of changes to the Subclass 457 visa program were introduced in order to ensure that it continues to provide industry with needed skills, while not undermining local training and employment opportunities.
These measures were developed through 2008 following the commitment by the Government to implement a package of longer-term reforms to the Subclass 457 visa program in 2009 to improve both its integrity and ability to deliver the skills needed in the economy. These measures were developed in response to concerns about the integrity of the Subclass 457 visa program, at a time when the demand for skills was high and the program was growing strongly.
The slow-down in the Australian economy in the wake of the global economic crisis and the subsequent decline in demand for Subclass 457 visas has not diminished the need to implement these measures and restore public confidence in the program.
One of these measures is that if the Subclass 457 visa program is to be used for the performance of tasks that correspond to the tasks of an occupation in ASCO 5 to 7, then this can only be done through a labour agreement pathway. This is to ensure that employers using the Subclass 457 visa program to access these occupations satisfy obligations on matters such as training.
What happens to my visa application if it is not finalised before 15 May 2009 and my stated occupation is an ASCO 5 to 7 occupation?
For visa applications lodged prior to 15 May 2009, the nominated activity will be considered against the gazetted occupation list at the time a decision is made on the visa.
If the tasks of your nominated activity no longer correspond to the tasks of a gazetted occupation, your case officer will give you the option to withdraw your application and make a request for a refund.
On 15 May 2009 my ASCO 5-7 visa application was still waiting to be lodged at DIAC because the Nomination was awaiting Regional Certifying Body sign-off. What happens now?
As your application is based on the performance of nominated activities which correspond to the tasks of occupations that will no longer enable the grant of a Subclass 457 visa under the standard business sponsor program, you will not be granted a visa if you lodge an application on this basis.
I currently hold a valid Subclass 457 visa in an ASCO 5- 7 occupation and I am still employed in that occupation. Is my visa still valid?
Yes. The changes do not affect the validity of your current visa. You will however not be able to be granted another Subclass 457 visa under the standard business sponsor program for this occupation.
Your sponsor may want to contact the Department to assess whether a labour agreement may be feasible in their circumstances.
You may also consider other visa options depending on your particular background and personal circumstances close to the expiry of your current visa.
As a 457 visa holder, can I seek permanent residence through the Regional Sponsored Migration Scheme (RSMS) or the Employer Nominations Scheme (ENS)?
Yes. You will need to make a valid application for a RSMS or ENS visa and meet all of the relevant criteria including the skill, age and English language requirements for the grant of these visas.
I currently hold a valid Subclass 457 visa in an ASCO 5- 7 occupation, can I change my employer in my current occupation?
Your current Subclass 457 visa may be cancelled if you cease to be employed by your current employer.
As your occupation is no longer listed on the Gazetted List of Occupations you will not be eligible for the grant of another Subclass 457 visa under the standard business sponsor program.
You may only be granted another Subclass 457 visa on the basis of performing tasks which correspond to the tasks of an occupation in ASCO 5-7 if you are nominated by an employer who is party to a labour agreement that includes your occupation.
I currently hold a Subclass 457 (Long Stay) visa which is due to expire. The occupation I work in is in the ASCO 5-7 group, can I apply for another Subclass 457 (Long Stay) visa?
Whether you are eligible for a Subclass 457 visa will depend upon your individual circumstances and the occupation you wish to work in. If you wish to work in an ASCO 5-7 occupation you will not be eligible to apply under standard business sponsorship, however you may be eligible to apply under a labour agreement pathway.
How do I enter into a labour agreement?
Employers wishing to employ overseas workers in the ASCO 5-7 occupations should contact the Labour Agreement Section at the Department of Immigration and Citizenship.
Email: labour.agreement.section@immi.gov.au
Will refunds be available for applications affected by these changes?
Refunds are available in particular situations. The department will be contacting those clients who may be entitled to a refund and providing them with an opportunity to withdraw relevant applications and request a refund.
In general terms a refund will be available to those who have lodged a nomination or visa application that was not finalised before 15 May 2009 if the application has a nominated activity that has tasks that correspond to the tasks of an occupation in an ASCO 5-7 position. Approved nominations for ASCO 5-7 positions where a Subclass 457 visa has not been granted for this nomination may also be eligible to apply for a refund.
I do not meet the new ASCO occupation requirement. Can I apply for a short stay business visa instead?
The short stay business visas (Subclasses 456, 459, 956, 977) are not intended to be used as work visas. Work is only permitted on a short stay business visa in limited circumstances:
- where the work is highly skilled (ASCO 1-4) and not for longer than six weeks
- where the work is highly specialised and not for longer than six weeks
- where the work is in the national interest.
The short stay business visa is not an appropriate visa for people intending to take up ongoing employment in Australia.