Skills in Demand (SID) Subclass 482 visa holders are subject to condition 8607, which amongst other things requires them to work only for their sponsoring employer or an “associated entity” of the sponsor. The only exemption to this is if the SID 482 visa has nominated one of several exempt occupations.
Employers who have applied for a “standard business sponsorship” to be able to sponsor employees for SID Subclass 482 visas need to be aware of which entity the employee is formally working for to avoid them breaching their visa conditions.
Who is the sponsoring employer?
The entity that has applied for the “standard business sponsorship” and therefore sponsors the employee for a SID Subclass 482 visa is ordinarily the entity that the employee must work for.
The sponsored SID Subclass 482 visa holder must therefore work for the approved business sponsor, or an “associated entity” of the business sponsor.
What is an “associated entity”?
The term “associated entity” in a migration context has the same definition as an “associated entity” under s50AAA of the Corporations Act 2001.
There are six definitions of when one entity (the associate) is an “associated entity” of another (the principal).
- the associated and the principal are related bodies corporate;
- the principal controls the associate;
- the associate controls the principal AND the operations, resources or affairs of the principal are material to the associate;
- the associate has a qualifying investment in the principal AND the associate has significant influence over the principal AND the interest is material to the associate;
- an entity has a qualifying investment in another entity if the first entity has an asset that is an investment in the second entity, or has an asset that is the beneficial interest in an investment in the second entity and has control over that asset.
- the principal has a qualifying investment in the associate AND the principal has significant influence over the associate AND the interest is material to the principal;
- an entity (the third entity) controls both the principal and the associate AND the operations, resources or affairs of the principal are material to the associate.
Ultimately, if an approved business sponsor employs a SID Subclass 482 visa, the onus is on the business to ensure that the visa holder is working for an appropriate associated entity.
What are examples of “associated entities”?
While each situation is of course situation-specific, some clean examples of “associated entities” may be where:
- the business sponsor is a wholly-owned (100%) subsidiary of Company B (or vice versa);
- the business sponsor and Company B are both wholly owned subsidiaries of Company C.
Where a company has a complex corporate structure, it is often worth spending some time to strategically think about the most appropriate entity to hold the business sponsorship for the reasons set out above.
Conclusion
Hannan Tew Lawyers have assisted numerous companies with their mobility issues, including strategic planning around the appropriate entity to obtain business sponsorship. Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you’d like assistance.
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THIS DOCUMENT DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP. PLEASE CONSULT AN IMMIGRATION PROFESSIONAL FOR UP TO DATE INFORMATION
