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How “Genuine” are your employees?

The Department of Immigration and Border Protection (DIBP) has recently introduced legislation requiring companies to demonstrate the “genuineness” of a position.

What this means in reality, is that the Department is scrutinising whether the nomination is “genuine” in circumstances where the nominated person from overseas is a family relation or personal associate of an owner or other “relevant” person of the sponsoring business.

We are seeing a dramatic increase in the number of applications that are being refused or significantly delayed where a case officer at DIBP is not satisfied that position meet the “genuine position” criteria.

To meet DIBP requirements, the position must:

• Be consistent with the nature of your business;
• Have duties that are consistent with the skill level and the tasks of the nominated occupation; and
• Not have been created just to help your nominee get a subclass 457 visa.

Indicators that there is a genuine need for a nominated position might include:

• Evidence that the position previously existed in the business;
• Evidence that the position is consistent with the nature of the business;
• Increased business activity such as an increase in revenue;
• Evidence of increased reliance on overtime for existing employees;
• A new contractual obligation or project secured by the business;
• Business plans indicating an expansion of business activities.

Certain occupations attract a higher level of attention from DIBP, and hence may require more detailed supporting evidence. These occupations include the following:

• Cafe and Restaurant Managers – DIBP policy is that duties should include the planning of menus as well as the planning events or functions. DIBP will also want evidence that the business is operating as a cafe or restaurant and not as a takeaway or fast-food outlet;
• Program or Project Administrators, or Specialist Managers NEC – these occupations have commonly been used as a “catch all” options for positions which did not clearly fit in a specific occupation;
• Customer Service Manager – DIBP’s position is that this occupation requires the sponsored person to be responsible for managing a team of customer service staff. If your nominee is the sole customer service representative in the business, the nomination may be refused.

Other common reasons for DIBP to consider that a position may not be genuine include the following:

• Self-sponsorship or sponsorship of a relative of the business owner – in these cases, DIBP may suspect the nominated position is being created purely for the purpose of securing entry for the owner or family member, and will seek further evidence to prove that the position is genuine.
• A low salary level – whilst 457 applicants must currently be paid a base salary that is over $53,900, DIBP may be suspicious if the base rate is exactly this amount or is very close to it. Unless you can prove that the market rate for a similar position is exactly $53,900, there may be a concern that the position offered is not genuine.
• A high salary to obtain an English language exemption – If you offer a high salary (currently over $96,400), DIBP may suspect that it has been inflated simply to avoid meeting the English language requirement so that your nominee can secure a 457 visa.
• Nationality of applicant – applicants from certain countries may merit closer examination by DIBP, particularly if they have no prior connection to the business. Case officers may ask how the applicant was identified and why they are the best person for the role. DIBP may suspect that the 457 applicant has paid for the position to be offered to them, or that they are a relative.

Whilst any one of the above scenarios may not necessarily result in your application being targeted or refused, it is important you understand why the provision of additional documents may be recommended to satisfy DIBP that your nominated position is genuine.

Visa Solutions has extensive experience in this area, and can help you get the best possible outcome. Contact our friendly team for more information.

Dan Engles
Principal
Visa Solutions Australia
Office: +61893282664
Freecall: 1800828008
visas@visasolutions.com.au

written by:

McKinley Plowman