Every temporary visa holder in Australia can set up a company to employ him or herself in order to qualify for work experience

Any temporary visa holder can set up a company and obtain work from that company. That company can then offer services to anyone in Australia or overseas as an independent contractor even though the work is actually performed by the temporary visa holder. The work by the temporary visa holder would then be work or employment experience for the purposes of the Migration Act & regulations.

In essence, a company can be set up in Australia by a temporary visa holder with that person being the sole shareholder & director. Almost every occupation which could use a company structure to perform the work and the ‘gig economy’ provides a great market place for getting work via a company as an independent contractor. Even a bridging visa holder could benefit from this structure as could a student visa holder.

I have seen many cases where a temporary visa holder finds it hard to get in the relevant occupation because employers are wary of taking on temporary visa holders. But that can be overcome by the visa holder owning and operating a company which would provide those services as an independent contractor. The person engaging the visa holder company then doesn’t have to worry about taking on the responsibilities under the Migration Act of being the visa holder’s employer. Work experience gained via the visa holder’s company would count for work experience both for skilled visa points and for any requirement of work experience for employer nomination visas including a subclass 482 visa. Certainly the TRA recognises such work as work experience for skill assessment purposes.

Obviously the key is having excellent records and proper accounting and receipting. Even one or two hours work as a type of freelancer/independent contractor would help establish the requirements for full time work experience or work experience for points (20 hours per week under Reg 2.26AC(6) and noting the restriction in s2.26C of having to hold either a substantive visa or a BVA or BVB).

The visa holder’s company would need to show accurate bank account records demonstrating that money was earned properly by the company. Records would have to be kept of who the customers were, what work was performed and how much was earned. Obviously the visa holder’s company would have to pay the visa holder properly. The whole exercise would have to drip with authenticity. One would expect that the visa holder’s company would use a proper accounting program like Quickbooks, Xero or MYOB etc. Proper tax must be paid.

I have seen cases where inadequate records were produced which caused the Administrative Appeals Tribunal to doubt that the work was actually done. Full time work is regarded generally as between 32 and 38 hours per week, and in an independent contractor’s framework it would be unexpected to see hours varying from week to week. Depending on the nature of the work, the visa holder’s company could perform work for overseas customers, difficult for trade occupations but eminently suited for IT and service sector jobs.

There may be some income tax implications for a visa holder’s company having only one customer, generally the ATO would regard a person who gets 80% of his or work from one customer as being ‘employed’ by that company for tax purposes.

Obviously proper accounting and legal advice is essential for setting up a company by the visa holder to perform work. But once it is properly set up it could be an excellent vehicle to provide a basis for the visa holder to gain work experience.

We discuss these issues in great detail at the 10 CPD point workshop/webinar conducted this Saturday 22 October 2022.