Businesses can hire foreign workers in certain occupations with a TSS visa.

The first step is to obtain business sponsorship approval by applying and demonstrating that the business:

1. has a legally established and currently operating business
2. does not have any adverse information recorded against it

The business then assumes a number of sponsorship obligations, including assuming certain costs, ensuring your employee only works in their nominated occupations, and is subjected to equivalent terms and conditions of employment as your Australian workers. You will only need to apply for the SBS once every 5 years.

The second component is the nomination application, where the business nominates a position within the organisation. Generally, the position must:

1. be a genuine, full-time position;
2. have a salary in line with market rates;
3. be subject to Labour Market Testing (see here); and
4. be on the relevant occupation lists (see here).

If the position is on the Short-Term Skilled Occupation List (STSOL), the candidate may be eligible for an up to 2-year visa. The applicant will also need to demonstrate that they are a “genuine temporary entrant”. If the position is on the Medium to Long Term Strategic Skills List (MLTSSL), the candidate may be eligible for an up to 4 year visa. 

The third step is the visa application. At this stage, the main applicant must:

• have relevant skills and qualifications that match the role;
• have at least 2 years of experience in a related position;
• have a genuine intention to work in the nominated position;
• meet mandatory licensing, registration, or professional membership requirements;
• have adequate arrangements for health insurance; and
• satisfy health, character, and English requirements.
  

The applicant’s family members can be included in the TSS visa as secondary applicants, including their spouse/de facto partners and dependent children. They will be granted the same full working rights as the primary applicant, though they are not tied to working for the sponsor.

The Temporary Skill Shortage (Subclass 482) (TSS) visa requires the nominated position to be assessed as “genuine” by the DHA. There are instances where an application may be assessed as “non-genuine”, such as where the applicant is related to the sponsor or the position is created specifically for the applicant. 

In addition, Labour Market Testing (LMT) must be conducted by the Standard Business Sponsor, where they have to provide evidence that there was an attempt to hire local citizens or permanent residents to justify that the local labour market cannot fulfil the nominated position. 

It is important that the applicant and Standard Business Sponsor follow the statutory obligations and conditions of the Temporary Skill Shortage (Subclass 482) (TSS) visa if, and when, it is approved.

A breach of the visa conditions may result in visa cancellations for the visa holder and/or prevent the business from sponsoring further workers under the scheme

As a brief summary, a sponsor must:

• advise the DHA about changes to the business, its solvency, and the nature of the visa holder’s work changes from that of the nominated position
• ensure the visa holder works in the occupation which they were nominated for
• ensure the terms and conditions are “fair”, being the same as stated as per the nomination application and not less favourable than that of an equivalent Australian worker
• ensure they do not engage in discriminatory recruitment practices and maintain records to show that discrimination based on visa or citizenship did not occur during the recruitment process for the TSS visa holder
• maintain adequate records to evidence compliance with the sponsorship obligations
• provide records and information if requested by a DHA officer and cooperate with DHA inspectors, when required; and
• be responsible for all sponsorship costs, relocation costs, and travel costs of the visa holder

The full sponsorship obligations are here: https://www.hannantew.com.au/sponsorship-obligations/.

Collate all the documentation which you require for your application to ensure the DHA has all the information available to correctly assess your eligibility for the Temporary Skill Shortage Visa (Subclass 482) (TSS) visa (see documents tab).

All documents relevant to your TSS visa will have to be digitised (scanned or photographed and uploaded to a computer). Ensure all non-English documentation is translated into English. 

The application for the Temporary Skill Shortage (Subclass 482) (TSS) visa is completed online via ImmiAccount, a portal managed by the Department:

• Log-in or create an ImmiAccount on the Department website
• Attach documents as outlined in the application
• Pay the visa application charges for your TSS visa (note that the Department will not process your application until the relevant fees are paid and the Department fees do not include our professional fees).

Ensure that all family members accompanying the primary visa holder are added to your visa application, as you are unable to add family members after the application has been submitted. If you are successful in your visa application, certain family members can join you in Australia as a subsequent entrant. 

The Department will send a confirmation letter (via email and/or the ImmiAccount portal messaging system) once your application and associated documentation has been received.

The standard processing times from the Department for the Temporary Skill Shortage (Subclass 482) (TSS) visa is as follows:

• 75% of applications: 3 months
• 90% of applications: 4 months

No updates on the application will be provided during the standard processing time. If more information is required, this will be requested via the ImmiAccount portal.

Do not travel to Australia until the outcome of your visa application is received and you have been granted the visa. If you are in Australia during the TSS visa application process, ensure you hold a valid substantive visa or Bridging Visa until the application is processed.

Be sure to advise the Department if there are any mistakes on your application but submitting a Notice of Incorrect Answers, or if your personal circumstances change after you have applied.

The Department will advise you of the outcome of your Temporary Skill Shortage (Subclass 482) (TSS) visa application in writing.

If your visa application is successful, you will be advised of:

• your visa grant number
• the date your visa starts (and ends) and
• your visa conditions.

Be sure to retain a copy of the decision for when you arrive and whilst you live in Australia.

If you are refused a visa, you will be advised in writing:

• the reason(s) for the unsuccessful application and
• whether you have a right to review the decision

It is vital that you read and understand the refusal notification clearly to understand the timeframe and means of appeal. Declined visa applications are generally provided with 21 days to lodge a review application with the Administrative Appeals Tribunal (AAT).

In most cases, your application fee will not be refunded even if the application is unsuccessful.

How is the TSS visa used in the tech sector?

The usual pathway for companies to bring in foreign skilled works is through the TSS visa.  The TSS visa is a temporary visa (valid for up to 4 years depending on the occupation) for skilled foreign workers in certain occupations. It also has pathways to permanent residence, though this is dependent on a number of factors including the occupation, age, or salary.  If permanent residence is an applicant’s eventual goal (for example for business continuity) it is crucial that the appropriate occupation and pathway is selected early. Some occupations may only lead to short term visas.

From a business perspective, it might also be worthwhile considering some alternative visas:

1. The 400 visa is a temporary visa which permits highly skilled individuals to obtain short term visas for up to 3 months (in some cases, 6 months).
2. Global Talent Scheme which permits streamlined pathways to permanent residence, and can often side step conventional requirements (e.g. age or occupations). 

Can the TSS visa be used by start-ups?

One of the key challenges for the TSS visa is that a case officer must be satisfied that the position is genuine. In our experience, case officers apply this criterion more onerously to smaller companies (<10 employees). This can make it difficult for early stage / bootstrapped startups who have a brilliant concept but need to secure global talent to scale.

Despite the challenges for start-ups, applications may still be possible with as much supporting evidence as possible including:

1. a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity
2. an outline of the goods or services produced by the business and how the position and its associated duties contributes to maintaining or enhancing the volume and/or quality of these outputs (this may include detailed and quantifiable plans for future expansion)
3. evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident
4. increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation
5. hours of operation and/or growth in customer numbers which explain why additional staffing may be required – that is, to meet increased demand and ensure coverage across the working week
6. evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents, and
7. overtime work, or increases in overtime work, for employees currently in the nominated occupation.

Having worked with several start-ups through the challenging initial stages, we’re well placed to provide assistance and guidance.

What occupations are considered relevant in the tech sector?

For most skilled visa applications, the described work and the visa applicant must both align to a specific occupation on Australia’s skilled occupation lists. For TSS visas the occupation is listed here.

A few of the relevant occupations include:

It’s clear that the above doesn’t capture all occupations which are in demand in Australia. That’s why the Department has a few occupations which are Not Elsewhere Classified (or NEC). These can be used (within reason) to capture otherwise not described occupation. In the ICT space this can include for example Software and Applications Engineers (NEC), ICT Managers (NEC), Information and Organisation Professionals (NEC), ICT Support and Test Engineers (NEC). As experienced immigration lawyers working closely with organisations in the tech sector, we can assist you in finding the appropriate occupation for your needs.

How is the TSS visa used in the energy / infrastructure sector?

The usual pathway for companies to bring in foreign skilled works is through the TSS.  The TSS visa is a temporary visa (valid for up to 4 years depending on the occupation) for skilled foreign workers in certain occupations. It also has pathways to permanent residence, though this is dependent on a number of factors including the occupation, age, or salary.  If permanent residence is an applicant’s eventual goal (for example for business continuity) it is crucial that the correct occupation and pathway is selected early. Some occupations may only lead to short term visas.

From a business perspective, it might also be worthwhile considering some alternative visas:

1. The 400 visa is a temporary visa which permits highly skilled individuals to obtain short term visas for up to 3 months (in some cases, 6 months).
2. Global Talent Scheme which permits streamlined pathways to permanent residence and can often side step conventional requirements (e.g. age or occupations). 

Do Engineers require licencing and registration?

As part of the ANZSCO description, most Engineering occupations are marked as “Registration or licensing may be required”. Most engineers in Australia currently work under a system where anyone can claim to be an engineer, provide engineering services and use it in their marketing without any regulation. Currently, Queensland is the only jurisdiction with a full registration system though a registration system has been discussed in many states in territories. Hannan Tew Lawyers have worked with companies bringing in global talent in multiple state jurisdictions so are well placed to provide guidance on these requirements in your unique circumstances.

What occupations are considered relevant in the energy / infrastructure sector?

For most skilled visa applications, the described work and the visa applicant must both align to a specific occupation on Australia’s skilled occupation lists. For TSS visas the occupation is listed here.

A few of the relevant occupations include:

The above doesn’t capture all occupations which are in demand in Australia. That’s why the Department has an occupation that is Not Elsewhere Classified (or NEC). The occupation of Engineering Professionals (NEC) can be used (within reason) to capture otherwise not described occupation. As experienced immigration lawyers within the energy / infrastructure sector, we can assist you in finding the appropriate occupation for your needs. 

How is the TSS visa used in the healthcare sector?

The main visa used by businesses in the healthcare sector is the TSS visa. This allows the business to sponsor an employee for up to 4 years, and has pathways to employer sponsored permanent residency.

Certain “exempt” occupations (typically medical specialists) allow businesses to sponsor TSS visa holders and engage them as “contractors” rather than as employees. A list of these occupations can be found here.

Do medical practitioners require licencing and registration?

Healthcare professionals who wish to work in Australia must be registered with the responsible medical board. This includes general medical practitioners, nurses, pharmacists, medical specialists, and other health professionals. You can read more about the registration process and search the national register here.

For some occupations, the registration/licensing component is also equivalent to a “skills assessment” which enables them to apply for one of the many routes to Australian permanent residency. For many other occupations (such as nurses), there is a separate skills assessment process where registration may amount to one component of the assessment.

Other nuances

Medical occupations have several nuances depending on the occupation. For example:

• nurses from overseas may need to undertake a bridging program in Australia (and require specific visas to undertake them), or are subject to enterprise agreements (and need to ensure that their wages are accurately stated to avoid underpayment and breaching sponsorship obligations);
• exempt specialist practitioners may be able to be engaged as contractors (rather than employees under written contracts of employment) but this could affect their eligibility for employer-sponsored permanent residency;
• higher levels of English competency are generally required to obtain registration in Australia (than ordinarily required for a TSS visa);
• General Practitioners are required to obtain “Health Workforce Certificates” as part of the TSS visa; and
• There are certain age exemptions applicable to regional medical practitioners for employer sponsored permanent residency.

To ensure that you do not fall foul of these requirements, you may wish to contact an experienced immigration law practitioner. Hannan Tew has significant experience advising across all areas of immigration law, including to both businesses and professionals in the healthcare industry.

What occupations are considered relevant in the healthcare sector?

For most skilled visa applications, the described work and the visa applicant must both align to a specific occupation on Australia’s skilled occupation lists. For TSS visas the occupation is listed here.

These occupations generally relate to specialist medical practitioners, and nurses and usually have a direct . A few of the relevant occupations include: