• Genuine Position

Assessing genuineness – 482 TSS visa

For the purposes of SC482, SC186, SC494 these are factors supporting ‘genuine position‘:

Factors supporting ‘genuine position’

The Department of Immigration will consider the following factors, which add weight to an assessment that the position associated with the nominated occupation is genuine:

  • The position is a highly skilled position with specific tasks outlined in ANZSCO (as opposed to a generalist ill-defined role).

Note: DHA check the duties of the role rather than just using the internal business titles as they may not align with the ANZSCO title.

  • The position fits clearly within the scope of the activities of the business.
  • The business has provided evidence that demonstrates that new positions are required.
  • There is evidence relating to a previous occupant employed in the position – for example, there was a previous 457 or TSS holder in the position or the business has indicated that an Australian was previously holding this position but has since left.
  • There is evidence that the position has been advertised and filled through a transparent recruitment process.
  • The business has provided evidence of having checked if the nominee is eligible for any licensing and/or registration requirements.

Evidence that can be useful to support such an assessment includes:

  • a breakdown of the organisational structure (organisation chart) to indicate how the position fits into the business activity
  • 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)
  • evidence that the position has existed and been previously occupied, but has become vacant through attrition or is currently occupied by a temporary resident
  • increase in business activity over previous months or years (for example, new contracts won, increased demand) requiring persons in the nominated occupation
  • 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
  • evidence as to what percentage of the sponsor’s workforce are Australian citizens or permanent residents, and
  • overtime work, or increases in overtime work, for employees currently in the nominated occupation.

Note:

  • If possible, independently verifiable evidence should be provided (for example, copies of contracts, purchase orders from third parties) as this will be given the greatest weight by visa decision-makers.
  • ‘genuineness submissions’ containing information specific to the business that are written by the sponsoring business will be given reasonable weight.
  • Genuineness submissions” that contain information specific to the business should be given more weight than those that contain:
    • generic template information (for example, use a template provided by an outsourced company), or
    • speculative or non-specific claims, without any attribution of the source of the information.

Such information is usually not tailored to individual companies and hence may not accurately reflect the current situation in the business.

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Factors not supporting ‘genuine position’

Factors that might add weight to an assessment that the position associated with the nominated occupation is not genuine are:

  • There is evidence that the industry in which the nominating employer operates is in decline.
  • According to a reputable source (for example, joboutlook/Workforce AU) there is an average or above-average rate of unemployment in the nominated occupation/industry.
  • The nominating employer has taken one or more of the following four actions in regard to employees in the nominated occupation or similar occupations:
    • retrenchment in the previous 12 months
    • reduction of hours worked during the previous 12 months
    • reduction in pay and conditions within the previous 12 months and/or
    • employment of a temporary visa holder on conditions less favourable than those for Australian employees.
  • The sponsor is a small business employing multiple 457 or 482 TSS visa holders or other temporary foreign workers in similar positions and/or the sponsor has no, or very few, Australian employees.
  • The nominated positions are managerial in nature and the proposed salary is at the lower end of the market salary rate range for such a position.
  • The nominated occupation is one that:
    • the ANZSCO dictionary lists only very broad, generic tasks (for example, Marketing Specialist, Program or Project Administrator, Specialist Manager NEC); and/or
    • the Department has previously identified a trend of sponsors using the occupation in an attempt to utilise the subclass 457 or 482 TSS visa program inappropriately – that is, accommodate semi-skilled workers or undermine other visa programs.
  • The sponsor is an overseas business and the sponsor seeks to employ the visa holder through an associated entity in Australia.
  • The sponsor is an overseas business that has been approved to establish a branch of the business in Australia and the positions nominated are not such that the nominee would be assisting in establishing the Australian business or be responsible for a substantial part of the operations of the business in Australia.
  • There appears to be inconsistent information provided regarding the tasks that the nominee will perform and/or these do not appear to align with those outlined in ANZSCO.
  • The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.
  • The sponsor seeks to nominate a General Manager and:
    • is a company involved in trading activity (imports/exports) with no other employees except for its directors; or
    • is a business whose main source of revenue is rental income from domestic properties it owns (for example, renting rooms to overseas students).

Note: Under policy, nominations lodged for certain occupations should also be carefully scrutinised to determine whether the position associated with the nominated occupation is not genuine or might be used to accommodate semi-skilled workers, or to circumvent/avoid having to use other visa programs. For advice on particular occupations, refer to Assessing eligible skilled visa occupations.

Important: This does not mean that nominations in such circumstances cannot be approved or are not acceptable within the 482 TSS visa program. Nominations that meet the regulatory criteria must be approved.

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