With strong links to both Asian and Western markets, the Australian government has created an entrepreneur visa — of which there are two types — to encourage foreign entrepreneurs to take their innovative ideas from concept to acceleration.
Considering leveraging Australia’s effective intellectual property laws and vast ecosystem to engage in an enterprising activity?
Have an exciting idea that you want to commercialise for the Australian market?
Keep reading to find out how you can apply for an entrepreneur visa that will allow you to pursue your entrepreneurial dream in Australia.
What is an Entrepreneur Visa?
Put simply, an entrepreneur visa allows entrepreneurs to undertake entrepreneurial activities in Australia. This could involve things such as launching a new tech product or expanding an existing enterprise located in an international market.
You may still be eligible for an entrepreneurial visa even if you are not the sole founder of the business for which your entrepreneurial activity applies to.
However, if your proposed activity is more aligned with a business activity, for example, you want to expand an existing accountancy business, then you may be better suited applying for a business visa rather than an entrepreneur visa.
What Entrepreneur Visa Can I Use To Start My Entrepreneurial Activity?
You can choose from one of two different types of entrepreneur visas to commence your entrepreneurial activity in Australia. The subclass 188 (Entrepreneur Stream) visa, also known as a 188e visa, or the subclass 132 (Venture Capital Stream) visa, referred to as a 132b visa.
Whether you should apply for a 188e or 132b visa will depend on things such as how much funding you have been able to obtain for your entrepreneurial activity and your English language ability. You can request that one of our immigration lawyers undertake an assessment for you to determine which entrepreneur visa you should apply for.
188e (Entrepreneur Stream) Visa
A 188e visa is a provisional visa that can be used to undertake a complying entrepreneur activity in Australia. You can hold a 188e visa for a maximum period of 4 years and 3 months, after which, you may be able to transition to a permanent entrepreneur visa.
If you apply for a 188e visa, your visa application fee will be $4,045AUD. If you include a family member who is over the age of 18 in your application, their visa application fee will be $2,025. The visa application fee for family members under 18 is $1,010AUD.
If a family member who is over 18 cannot demonstrate that they have functional English language abilities [link] then they will need to pay an additional visa application fee before their 188e visa application can be granted. The additional visa application fee is $4,890.
At this point in time, there are no standard processing times available for 188e visa applications. However, based on our previous experience, it is not unusual for 188e visa applications to take between 18-24 months to be processed.
132b (Venture Capital Stream) Visa
The 132b visa is a permanent visa that allows you to establish a new, or participate in an existing entrepreneurial activity. You can include family members as part of your 132b visa application.
The visa application fee for a 132b visa application is $7,855AUD. For a family member over 18, the visa application fee is $3,930AUD, whereas for a family member under 18 the visa application fee is $1,960AUD.
An additional visa application fee also applies if either yourself or a family member over the age of 18 does not have functional English language abilities. If this applies to you, the additional fee you would be liable to pay is $9,795AUD. For a family member over the age of 18, the additional fee is $4,890AUD.
There are also no standard processing times available for 132b visa applications, but as with 188e visa applications, it is not unusual for these types of applications to take between 18-24 months to be processed.
What Are The Steps Involved With Getting an Entrepreneur Visa?
Entrepreneur, like business visa applications, involves a three-step process. However, unlike a 188a visa application, you do not need to hold a certain number of points to be eligible for a 188e visa.
To submit an application for a 188e or 132b visa you will need to:
- Submit an Expression of Interest (EOI) via Skillselect;
- Apply for a nomination from an Australian State or Territory government agency;
- Submit your 188e or 132b visa application.
How Do I Meet The Criteria To Receive an Entrepreneur Visa?
There are a number of requirements that you must satisfy to be eligible for an entrepreneur visa. These requirements vary depending on which type of entrepreneur visa you are applying for.
188e (Entrepreneur Stream) Visa
Nomination from an Australian State or Territory Government Agency
To be able to apply for a 188e visa, you must first receive a nomination from an Australian State or Territory government agency. Each agency has its own set of criteria [link] that you must meet to receive a nomination from them. If your nomination is withdrawn before your visa application is approved, then you will no longer be eligible for a 188e visa.
Invitation from Minister
If you have received a nomination from an Australian State or Territory government agency, you should receive an invitation from the Minister for Immigration to apply for a 188e visa. You have 60 calendar days from the date of your invitation to submit your 188e visa application.
Under no circumstances will an extension to this deadline be granted, so you should ensure that you have prepared your application, as well as having all of the required supporting documentation on hand, as soon as possible.
Involvement in Unacceptable Business Activities
If you are found to have had a previous involvement in business activities that are generally not acceptable in Australia (i.e taxation fraud), then it is unlikely that you will be able to receive a 188e visa, unless you can prove that these previous activities have no bearing on your application (i.e they occurred because of circumstances outside your control).
Public Interest and Special Return Criteria
Similar to a business visa application, a 188e visa application will only be approved if you meet the relevant public interest and special return criteria. Satisfying the public interest criteria involves meeting the requirements surrounding your health and character, among other things.
In regards to meeting the special return criteria, this involves instances such as whether you have ever received a deportation order or had an Australian visa previously cancelled.
Age
There are two ways in which you can meet the age requirement. Either you are under 55 at the time of receiving your invitation to apply for a 188e visa, or the Australian State or Territory government agency that has nominated you have determined that your entrepreneurial activity will provide an exceptional economic benefit.
Whilst each State and Territory government agency has the discretion to provide a nomination for someone over the age of 55, not all State and Territory government agencies exercise this discretion.
If you are over 55 and wish to apply for a 188e visa, it would be prudent to make enquiries with each respective State or Territory government agency to determine whether they may consider exercising this discretion.
Competent English
188e visa applicants must demonstrate that they have competent English language abilities. Be competent in English (minimum of 6 in each band of the IELTS)
Undertake a Complying Entrepreneur Activity
There are a number of requirements that must be met to show that your proposed endeavour is a complying entrepreneur activity.
Firstly, the activity must relate to an innovative idea that will lead to either the commercialisation of a product or service or the development of a business or enterprise in Australia. However, if your proposed activity relates to either labour-hire or residential real estate, this will not constitute a complying entrepreneur activity. Purchasing, investing or acquiring an interest in an existing entity (including a franchise) is also not a complying entrepreneur activity.
You must also have in place a legally enforceable funding agreement from an eligible fund provider, and the total amount of funding you will receive pursuant to this agreement must be at least $200,000AUD * The $200,000AUD funding threshold requirement from an approved entity will be scrapped from 1 July 2021. The funding that is to be provided under this agreement must be unencumbered and lawfully acquired. Also, at least 10% of this funding must be paid within 12 months of the day that your activity starts to be undertaken in Australia.
The list of eligible fund providers includes:
- All agencies of the Commonwealth, a State or a Territory;
- Bodies that undertake publicly funded research or innovation initiatives and are established under a law of the Commonwealth, a State or a Territory;
- Investors registered or conditionally registered as a venture capital limited partnerships or early-stage venture capital limited partnerships under Part 2 of the Venture Capital Act 2002; and
- Higher education providers listed from time to time under Part 2-1 of the Higher Education Support Act 2003 (Cth) as:(i) Table A providers; and
(ii) Table B providers, unless the body ceases to be a higher education provider because of subsection 16-5(3) of the Higher Education Support Act 2003 (Cth)
A business plan for your entrepreneurial activity must also be available. This business plan needs to demonstrate how your innovative idea will lead to either the commercialisation of a product or service, or the development of an enterprise or business, in Australia.
In some instances, you may also be required to demonstrate that you have a 30% share ownership of the entrepreneurial entity.
Genuine Intention to Undertake, and Continue to Undertake Complying Entrepreneur Activity
You will need to prove that you have a genuine intention to commence undertaking your entrepreneur activity and that you will continue to undertake this activity after your 188e visa is granted.
To meet this requirement, you will need to show that your commitment to an undertaking, and continue to undertake, your complying entrepreneur activity is genuine and realistic. To do this, you will need to show that after your entry to Australia you will:
- Either establish a qualifying business or participate in an existing qualifying business, in Australia;
- Maintain a substantial ownership interest in that business; and
- Maintain direct and continuous involvement in the management of that business from day to day, and that you will make decisions that will affect the overall direction and performance of the business in a manner that benefits the Australian economy.
A qualifying business is an enterprise that operates for the purpose of making a profit through the provision of goods or services to the public and is not operated primarily, or substantially, for the purpose of speculative or passive investment.
Whether your ownership of the business constitutes substantial ownership depends on the corporate structure of your business. If you need advice regarding which corporate structure you should use for your business, we can provide this for you.
There is no clear cut way to demonstrate that you will be maintaining direct and continuous involvement in the management of your business, or that your decision making will benefit the Australian economy. Whether this requirement has been met will be determined on a case by case basis. Sufficient Funds The officer processing your 188e visa application will assess whether the net value of you and/or your spouse/de facto partner’s assets is sufficient enough for you to settle in Australia. This includes things such as being able to afford housing and the cost of living.
If you have received a nomination from an Australian State or Territory government agency, then this is generally sufficient to demonstrate that you meet this requirement. However, even if you have received a nomination, it is still possible that the officer processing your 188e visa application will not request further evidence from you to assess whether you meet this requirement.
132b (Venture Capital Stream) Visa
There is some overlap between the criteria for a 188e visa and a 132b visa. For example, both visas require you to:
- Have a nomination from an Australian State or Territory government agency which is still in force;
- Have an invitation from the Minister to apply for a 132b visa, and to submit your 132b visa application within 60 calendar days of receiving this invitation;
- Not have any previous involvement in any unacceptable business activities;
- Meet the relevant public interest and special return criteria;
- Have sufficient funds to settle in Australia;
- Establish a new, or participate in an existing business, after your entry to Australia;
- Maintain a substantial ownership interest in the business;
- Maintain a direct and continuous involvement in the management of the business; and
- Make decisions that affect the overall direction and performance of the business in a manner that benefits the Australian economy.
The main point of distinction between a 188e visa and 132b visa, is the amount and source of funding you have in place for your entrepreneurial activity.
Funding
A 132b visa, like a 188e visa, will only be granted if you have a legally enforceable funding agreement with an eligible funding provider.
Again, the funds must be unencumbered and lawfully acquired. However, a major difference between the 132b and 188e visas, is that the minimum amount of funds that are to be provided under the agreement must be at least $1,000,000AUD.
Another point of difference between a 132b visa and 188e visa, is that the funding must come from a venture capitalist who is registered as a member of the Australian Investment Council (AIC), formerly known as the Australian Private Equity and Venture Capital Association (AVCAL).
You can search the AIC’s member directory HERE
Under no circumstances can the funding that is being provided by the AIC member be connected to the applicant.
This prohibition also encapsulates situations where a 132b applicant provides funds to a third-party company, who then provides the funds to the AIC member.
If an AIC member proposes such an arrangement to you, it would be wise to reject this, and you may also want to consider lodging a complaint with the AIC and/or Department of Home Affairs.
English Language Ability and Age
Unlike a 188e visa, you do not need to be under a certain age or have competent English to receive a 132b visa.
However, this does not mean that your age and English language ability will not factor into whether or not you will be granted a 132b visa.
What Should I Do if I Don’t Meet The Criteria For a 188e or 132b Visa?
If you are of the belief that you will not be able to meet the criteria for either a 188e or 132b visa, then you may want to consider applying for a business, or some other type of visa.
We can assess your circumstances and advise you whether you may be eligible for another type of visa.
Disclaimer
Migration law and policy is subject to change without notice, which means that any of the information published on this website may no longer be accurate.
Furthermore, the criteria mentioned above is not intended as an exhaustive list, and under no circumstances should it be relied upon as legal advice.
Should you require advice about a 188e or 132b visa, this should only be obtained from a registered migration agent.
