Australian employer sponsorship is being processed very quickly at the moment, especially the Subclass 482, where 1-3 months from lodgement to grant is commonplace. The Subclass 186 is a little slower, taking six months to a year, but the 186 delivers permanent residency in a single step.
On top of that, the government has said it will implement, by the end of 2023, a policy allowing every occupation on the short-term list to transition directly to permanent residency, suddenly adding more than 200 occupations from which you can obtain PR. In addition, employees holding a Subclass 482 who leave their current employer now have more time to find their next sponsor.
It is fair to say that, over this period, almost every piece of good news—large or small—has been about employer sponsorship. As a result, more and more people are paying attention to it.
Employer sponsorship, as the name suggests, requires an Australian employer to sponsor you.
Some people then ask: I am self-employed—can I still do it?
Whether self-employment works is not a question with a one-size-fits-all answer; the fact that your self-employment qualifies does not mean someone else’s will. So today we are simply trying to set out the basic logic. If, after reading, you feel you might qualify, you are welcome to come in for a more detailed assessment.
Is a sole trader suitable for employer sponsorship on a self-employed basis?
Although a sole trader can act as the employer sponsoring an employee, it is not really suitable where you are sponsoring yourself.
The reason is that, under Australian company law, only a business registered as a company under the company business structure can act as a separate legal entity。. It is therefore only on that basis that business owneryou can be an employee of your own business.
Once I set up a company and become both the owner and an employee, is that acceptable?
After registering as a company, business owneryou can, on the strength of your own skills and professional background, be employed by the company as a key member of its operations—in other words, playing two roles at once.
Based on the questions in the Subclass 482 nomination online application, Self-sponsorship is defined very broadly: that is, the owner or decision-maker of the company is the nominee themselves, or another person related to the nominee by blood, marriage or financial interest.
If you decide to go down the self-employed route, you should make the appropriate disclosures when lodging the relevant nomination application. Common (but not the only) forms of self-employment include:
–You own 100% of the company and use that company to nominate yourself for employer sponsorship
–You and your spouse jointly own the company and use that company to nominate yourself for employer sponsorship
–You and a family member jointly own the company and use that company to nominate yourself for employer sponsorship
–A friend owns the company and you have invested in it and receive a share of the profits, and you use that company to nominate yourself for employer sponsorship
The forms of self-employment above are all acceptable, but that still does not mean you are suited to applying for employer sponsorship through self-employment. There are two core issues to resolve here:
Issue one: how should the two roles—business manager and the specific operational position—be balanced?
Employer sponsorship requires the sponsored position to be full-time capacity, in other words, it must be a full-time position。If you hold both of the roles mentioned above at the same time, how can you demonstrate that the hours spent in the nominated position meet the full-time requirement?
For example, say you hold full ownership of the company and you also do the accounting and bookkeeping—how do you prove that the time and workload you devote to the accounting and bookkeeping reach the level of a full-time position? Or are you mainly doing management, with the accounting and bookkeeping just one of many tasks you perform?
Issue two: the genuine need for the nominated position
Employer sponsorship cases involve strict scrutiny of the genuine need for the nominated position. A question case officers readily raise is whether the position exists because the business genuinely needs it, or whether it was created for the purpose of helping the nominee obtain a visa.Self-employment is no exception—and a nomination application of a self-employed nature requires more substantial reasoning and evidence to demonstrate the genuine need for the nominated position。
The Department’s internal procedural guidelines also note that employer sponsorship does not prohibit self-employment, but one point to be mindful of is that self-employment cannot merely be used to create an opportunity for the nominee (the sponsored employee) to reside long-term or obtain permanent residency in Australia。
At the same time, earlier AAT decisions have emphasised the need for other reasons to support the genuineness and reasonableness of the sponsorship—having regard to the ongoing operation and growth of the business—even though it will also bring a favourable migration outcome for the nominee and their family.
So who is suited to the self-employed route?
Applicants suited to an employer-sponsored programme on a self-employed basis
generally:
First: work in an occupation underpinned by specialist knowledge, skills and relevant work experience—this can be either a professional or a trade occupation (for example chef, accountant, baker, and so on)
Second: it is advisable to hold relevant Australian qualifications or Australian-recognised credentials, such as professional membership, trade recognition/licence/registration, and so on
Issue two is a point scrutinised strictly in all employer-sponsorship cases; it is simply that self-employment may attract even closer scrutiny and higher requirements. Prospective self-employed applicants should pay particular attention to the answer to issue one when assessing whether the self-employed route to employer sponsorship suits them.
In practice, it is fairly common for one of a married couple—or de facto partners—to act as the manager of the company while the other is an employee and a core member of the business.
Provided all the other requirements that employer sponsorship places on the employer are met, if the party acting as employee can no longer fill their position, and a suitable replacement cannot be found locally either, the business will suffer very serious loss, to the point that it can no longer continue operating. Where this is the situation, the self-employed route to employer sponsorship may be worth considering.
For example: a husband and wife together open a Chinese restaurant，the wife handles management and other duties, while the husband is mainly responsible for the cooking. The husband wants to use the restaurant to sponsor himself for employer sponsorship through the chef position. Where the restaurant meets the relevant nomination requirements, the husband holds relevant Australian qualifications and credentials, and has previously had many years of experience as a chef both in China and in Australia—and where the design, ingredient selection, preparation and quality control of the restaurant’s dishes are now largely his responsibility—then if he could no longer hold the position, a suitable replacement might not be found for a long time, and the business could not continue.
In short, the self-employed route to employer sponsorship
first requires a thorough assessment of the company to see whether it meets the relevant nomination requirements
, and at the same time places stricter requirements on the nominee’s skills, qualifications and relevant experience as well.
Self-employment is not impossible—but it is certainly not simple.
If you are interested and would like to explore the possibilities in depth, you are welcome to add our consultant below to arrange a professional, detailed assessment:
Recent Newstarsec employer-sponsorship success stories
Supply and Distribution Manager, offshore applicant — Subclass 482 nomination and visa
The client was previously employed in China and, because of an offshore working requirement, was transferred to the Australian branch. The application was lodged in July, and the Subclass 482 nomination and visa were both granted in under a month.
Taxation Accountant — Subclass 186 DE nomination
Lodged in October 2022; the Subclass 186 DE nomination was granted in August 2023.
Accountant — Subclass 186 DE visa
Lodged in late 2022; the nomination was obtained in early July 2023, and on 26 July the Subclass 186 DE was granted, together with the partner. When the client first contacted us, they had less than three years’ work experience and built it up for a time on a Subclass 482.
Massage Therapist — Subclass 482 to 186 TRT granted
Massage therapist is an occupation on the STSOL short-term list. At present, only a small number of short-term-list Subclass 482 holders can transition directly to a Subclass 186 PR (the new policy is not expected to be confirmed until the end of the year); this client is one of that minority.
Gymnastics Coach, offshore applicant — Subclass 482 nomination
This client had many years of experience as a gymnastics coach and subsequently received an offer from a local Australian employer willing to sponsor them. To avoid being affected by the $70k salary increase, our team prepared all the materials within a week and lodged before 1 July! Half a month later, the nomination and sponsorship eligibility were granted at the same time!
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