• Maximum Stay Period for Subclass 400 Visa Increased, But Longer Stays Must Have Strong Business Justification
  • November 25, 2014
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The maximum allowable stay period for the Subclass 400 (Temporary Work) visa will be extended from three to six months, according to new regulations effective November 23, 2014.

    According to new draft policy guidelines, employers and foreign nationals will be required to demonstrate a strong business justification in order to request a longer stay period. For example, they may be required to show the importance of the project to the local community, whether the visa holder’s employment conditions will meet Australian workplace standards, and whether the project will adversely impact Australian workers.

    Employers will have to prove three key factors to justify a longer stay, according to the proposed visa guidelines:

    • The Subclass 457 visa program is not being circumvented. This will include factors such as the nature, size, duration and importance of a project to the local community and any potential impacts to the business and community should the project not proceed; evidence that specialist advice/expertise from overseas is required; and evidence that the local employer tried unsuccessfully to hire an Australian worker.
    • The employment conditions will satisfy Australian workplace standards. This will include determining whether the employer will meet minimum wage standards for certain groups of workers such as Managers, Professionals, Technicians and Tradesworkers.
    • The proposed work or activities will not adversely impact Australian workers. In most circumstances, if it is clear the work is highly specialized and of a limited duration, this requirement should be satisfied. If the immigration authorities have concerns, they may request additional documentary evidence.

    What This Means for Employers and Foreign Nationals

    The option of a longer stay period for Subclass 400 visa holders will provide greater flexibility for employers who use the visa program for short-term work. However, employers should be prepared to present documentary evidence to prove that a six-month stay is justified.

    Consular discretion may result in variations globally in the type of documentation required to meet these policy criteria.