Guess Who?

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Immigration law can keep you guessing: who is a valid employee? Who bears the responsibility to inform the Department of Immigration about improper visas? Who do I turn to when I need advice? Certex recently launched its Immigration Compliance program. Our registered migration agents have been working with businesses and associations to help them understand the key immigration issues in employee recruitment. Today, we discuss a pertinent question that employers frequently ask us: How Do I Know if an Employee is Entitled to Work for Me? Or in other words: What is my employee's visa status?

Issue #1: Relying on VISA Entitlement Verification Online (VEVO)

VEVO is an online program that allows registered organisations to check an employee's visa details and conditions. Without a doubt, it is a very useful program and it is startling to learn how few employers use VEVO checks to find out about their employees' right to work. However, many organisations incorrectly assume that conducting a VEVO check prior to employing a candidate is sufficient to discharge their legal obligations. VEVO tells an employer about an employee's current right to work. It does not provide a guarantee to an employer that their work rights will remain valid in the future, regardless of the expiry date. The consequence is that a candidate might have a valid visa at the time that he/she is hired but no longer has the right to work when he/she is finally placed. Placing a worker who does not possess a valid visa is a breach of the Migration Act 1958.

Issue #2 : Passports are not VISAs.

It might seem like an obvious statement, but many employers rely on an employee's passport as proof of an employee's right to work. A passport is only evidence of the fact that the employee has validly entered the country. In the past, visa labels in the passport could be used to check the employee's visa conditions, but this is no longer the case since all visa information is being stored electronically.

Issue #3 :Sub Class Matters.

There's more to an individual's visa rights than simply what their visa is called. Different visas can come in a variety of different classes and each class, in turn, prescribes a set of rights, obligations and restrictions on the visa holder. Simply put: A person may have a work visa but still not be entitled to work in your company. For example, businesses are generally used to the visa term "457 visa" and tend to automatically associate it with a work visa. But what if you come across a student visa applicant wanting a position at your work? You conduct a VEVO check and, sure enough, it confirms they have a subclass 573 visa with work rights: 20 hours a week work rights during school terms. But, did you check, or did you know to check if, whether that student is already working somewhere else that is contributing to the maximum of 20 working hours a week? Whilst this person has a valid visa with work rights, do their conditions allow them to work with you?

What is the solution?

Nowadays visa conditions are stored electronically via VEVO. Visa holders still receive the email grant notification from immigration when their visas are granted. In the cases of 457 visas, this grant email also states who the sponsoring employer is, whereas VEVO does not provide this information. Checking a visa grant email and VEVO and work history is the only way to accurately know whether an individual has the right to work for or with your company. You must also conduct regular checks of all of employees to ensure that conditions haven't changed or expired. The Certex Immigration Compliance program has been established to assist employers with assurance they are doing the right thing before immigration comes knocking on their door. The Certex Registered Migration Agents can come into your business and conduct a half day risk assessment against immigration compliance. A confidential report will be submitted to you and provide an accurate picture of where you are at and where may be breaching the law. Seek help if you're unsure - don't second guess the law. Please contact our Registered Migration Agent, Donna Rowley (MARA#0854268) at donn@certex.com.au, or (03) 9555 3855.