Temporary Work Visas and the Coronavirus - FAQ
Many businesses across Australia have been forced to close their doors or limit their services due to COVID-19. We are aware that many Subclass 457 and 482 holders will be wondering what this means for their visa. Our industry body, The Migration Institute of Australia, is in frequent communication with the Department of Home Affairs and any advice provided by the Department will be circulated as a priority. In the meantime, we have outlined below some frequently asked questions and current Immigration policy relevant to workers holding Subclass 457 or 482 visas as a primary applicant.Reduction in work
Q. Can I reduce my hours or move to part-time work?
The Minister for Immigration announced on 4 April that subclass 457 and 482 visa holders will be able to reduce their working hours without being in breach of their visa conditions. However, the below following four policy criteria should continue to be met:- the pro-rata hourly rate of your approved salary (as per the nomination) does not decrease
- the role and duties performed remain consistent with your nominated occupation
- you are not employed under a Labour Agreement
- there is a written agreement in place between you and your sponsor. Your sponsor must maintain a copy of the agreement, and document the reason for the change.
Q. Can my employer reduce my wages?
It is only 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 AU$53,900. You would need to agree to the revised wage by signing a new employment contract, and the new application would incur an additional Skilling Australians Fund levy payment on behalf of your sponsor.Q. Can I go on Leave Without Pay (LWOP)?
482 or 457 visa holders are covered by the National Employment Standards, making them eligible for unpaid leave (e.g. study or sabbatical leave, recreational or holiday leave without pay, sick leave without pay, parental/carer/personal leave, maternity and/or paternity leave). You would not be considered to be in breach of your visa conditions solely on the basis of this unpaid leave. This is because you are considered to continue to be employed by your sponsor (despite not working or receiving a salary). Immigration has confirmed that 457 and 482 visa holders who have been 'stood down but not laid off' will be able to maintain their visa validity and to apply for an extension of the visa through the usual application process. For any LWOP it is expected that:- both you and your sponsor have agreed that LWOP will be taken; and
- there is a formal application for leave without pay that has been formally approved by your sponsor (including leave applications that are processed and approved electronically).
Overseas Workers / Travel
Q. Can I return to Australia on my 457/482 visa if I am currently offshore during the Covid-19 pandemic?
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
- attend the funeral of a close relative
Q. Can I work from overseas on my 457/482 visa if I cannot return to Australia?
If it is possible for you to perform your work remotely, then you can still work from overseas. A written agreement between you and sponsor 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 your sponsoring employer in Australia for the purpose of a permanent visa (such as a Subclass 186 in the Temporary Residence Transitional stream). Immigration will assess this on a case by case basis.Other Work
Q. Can my staff member do other work within the business?
Under conditions 8107 and 8607 of the 457 and 482 visas respectively, holders are limited to working only in their nominated occupation. In addition, sponsors are obliged to ensure that the 457/482 visa holder works in the nominated occupation. If you are found working in a different occupation, your visa may be cancelled and your sponsor may become subject to sanctions affecting their ability to sponsor workers in future. In order to change occupations, a 457 visa holder would need to have an approved nomination in the new occupation before commencing in the role. A 482 visa holder would need an approved nomination and approved visa in the new occupation. Under policy, the work condition would not be considered to have been breached if the change of duties is only temporary and will not exceed 60 consecutive days. However, if your duties are revised for a period of more than 60 days, or if they are regularly changed, you must ensure a new nomination (457) or new nomination and visa (482) are lodged.Q. Can I work somewhere else and go back to my original sponsor when business picks up?
Again, conditions 8107 and 8607 of the 457 and 482 visas respectively limit the holder to only working for their sponsoring employer (or associated entity). In this situation, a new employer would need to sponsor you and have this approved before you could commence work there. Another application would then need to be lodged to return to the original sponsor. We are seeking further information from Immigration on the possible relaxation of these conditions to allow visa holders to work in areas of need during this crisis (for example; providing services to the health sector).Q. Can I receive Centrelink payments or access my superannuation early?
Subclass 457 and 482 visa holders will be able to access up to AU$10,000 of their superannuation this financial year. An application should be made directly with your superannuation fund provider. Temporary visa holders who have departed Australia and wish to access their superannuation can request voluntary cancellation of their visa and a 'Departing Australia Superannuation Payment'. Further information is available here . There have not been any announcements regarding social security payments for 457 or 482 visa holders.Termination
Q. Can I be temporarily laid off, e.g. due to a business shutdown or reduced trading?
See 'Leave Without Pay' above.Q. Can my sponsor terminate my employment? Can I leave Australia and travel home?
From an Immigration perspective, Standard Business Sponsors are required to continue to comply with their sponsorship obligations, as well as following the standard Fair Work rules during this period. If your employment was terminated, you would generally have 60 days to depart Australia, or find a new sponsor, or lodge a different type of visa to stay here before Immigration would consider you to be in breach of the work conditions and look to cancel your 457/482 visa. Immigration have taken the view that visa holders who have been laid off due to coronavirus should leave Australia if they are unable to secure a new sponsor. However, there is some good news in that the Minister has also announced: "should a 4-year visa holder be re-employed after the coronavirus pandemic, their time already spent in Australia will count towards their permanent residency skilled work experience requirements". Based on this announcement, our interpretation is that if:- You hold a 457 or 482 in a MLTSSL or ROL occupation (i.e. a '4-year visa'); and
- Your employment is terminated and you leave Australia; and
- You are re-employed by your original sponsor after the pandemic period
Then you could count the time you had already spent working in Australia with the original sponsor towards the work requirement for a permanent employer-sponsored visa.
- travel from your usual place of residence in Australia to your departure point from Australia (i.e. from home to the airport)
- travel from Australia to the country for which you hold a passport and intend to travel to
- economy class air travel or reasonable equivalent
