Subclass 457 visas and international trade obligations (ITOs)

​The Department is currently receiving a high volume of queries around how ITOs apply in the context of visa grant periods and the interpretation of caveats.

The frequently asked questions below are designed to address commonly asked questions and define key terms that agents have raised questions about – noting that the subclass 457 form currently asks whether the nominee is an intra-company transfer, but policy guidelines around ITOs refer to the term intra-corporate transferee, and note that certain occupations are considered 'Executives and Senior Managers' for the purposes of the program.

What is the difference between an intra-corporate transferee and an intra-company transfer?
The term intra-company transfer simply refers to an employee that is transferring between two associated entities. An intra-corporate transferee is a term used in international trade agreements to refer to an intra-company transfer to which an international trade obligation applies. Obligations vary by trade agreement, this includes aspects relating to visa duration and labour market testing, and might be restricted to particular occupations, such as Executive and Senior Managers (see list of these occupations on our website).
For example, an employee transferring from their parent company in China to an associated entity in Australia is an intra-company transfer. This transfer is also described in a trade agreement (ChAFTA) and necessitates a number of conditions, including stipulations on visa duration and labour market testing. As a result, the employee in this scenario is an 'intra-corporate transferee'.

What is the difference between an independent executive and an intra-corporate transferee?
Independent executives and intra-corporate transferees are treated as separate categories of entrant in trade agreements and are entitled to different visa treatments. The difference is that unlike intra-corporate transferees, independent executives will be managing a business in Australia that might not exist in Australia yet. That is, they are coming to Australia to establish a new branch of their company.
Important:

• Independent Executives are limited to the 'Executive or Senior Manager' occupations on the Department's website.
• Independent Executives can only be sponsored by an overseas business.

I don't understand who can get access to a 4 year visa if their occupation is on the Short-term Skilled Occupation List (STSOL)?
If the nominee is NOT from China, Singapore or Thailand, a visa period of up to 4 years for STSOL occupations is only available if:

• the nominee is a citizen or permanent resident of a World Trade Organisation (WTO) country; and
• is an intra-corporate transferee; and
• is nominated as an Executive or Senior Manager.

Nominees from the following countries also have access to a visa period of up to four years where they are an:

• intra-corporate transferee – that is they work for an Australian associated entity of a sponsor that operates in China, Singapore or Thailand;
• independent executive – that is they are in an Executive or Senior Manager occupation and are seeking to establish a branch in Australia of their business which operates in China or Thailand.

In addition, nominees from China who are nominated in the following occupations also have access to visa period of four years:

• Other Sports Coach or Instructor (ANZSCO 452317) - specialisation Wushu martial arts only
• Private Tutors and Teachers nec (ANZSCO 249299) – Mandarin language tutor only
• Traditional Chinese Medicine (ANZSCO 252214)

Where a four year visa is granted on the basis of ITOs can they get access to a further four year visa?
Yes – but only if the nominee is from Singapore and an intra-corporate transferee.
​​What about Hong Kong (HK)?
Passport holders from Hong Kong (HK) are only eligible for a visa period of up to four years for occupations on the STSOL where they are an intra-corporate transferee nominated as an Executive or Senior Manager.
​For a four year visa to be available, does the nominee have to continue to work for the overseas business?
No – they can still be an intra-corporate transferee if they are working for a sponsor in Australia, who is an associated entity of the overseas business.   
Can you explain how ITOs are relevant in the context of caveats?
Some caveats do not apply where the nominated position involves an intra-corporate transfer to which an ITO applies. For example, some caveats which require the nominated base salary to be at least a certain amount do not apply where the position involves an intra-corporate transfer to which an ITO applies.
This effectively means that a caveat which references an ITO does not apply if the nominee is:

• an intra-corporate transferee (to Australia); and
• is currently working for an overseas business that operates in a WTO country.

This is relevant in the context of the following occupations:

• Chief Executive or Managing Director (ANZSCO 111111)
• Corporate General Manager (ANZSCO 111211)
• Corporate Services Manager (ANZSCO 132111)
• Sales and Marketing Manager (ANZSCO 131112)
• Supply and Distribution Manager (ANZSCO 133611)

Source: Skilled Visa E-news September 2017

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