Australian Taxation Office (ATO) and Immigration

The Government is implementing measure in attempt to clamp down on fraud, tax avoidance, superannuation requirements and working without proper permission.  This may impact you directly if you are a visa holder.

The Australian Tax Office (ATO) has announced that around 20 million visa holders are to be scrutinised under a data matching scheme with the aim of catching those who are avoiding tax, falling foul of superannuation compliance and working illegally.

What it means

Under the data matching scheme, the ATO will become privy to your tax, bank, social security and wages and will be able to share this information with the Department of Home Affairs (DHA) (Immigration).

This means it will be easier for officials to detect anyone who is flouting their obligations be that a visa holder or an employer.

The Federal Government will look at records and review information on not just sponsors and visa holders but also migration agents and education providers.  Officials will be able to find out where visa holders have travelled, where they have worked or studied and the payments they have received.

It could also mean that those who left Australia may be entitled to superannuation which they didn’t know about.

How will it affect employers and visa holders?

If you claimed that you undertook some regional work as part of your Working Holiday Visa but didn’t actually carry it out, if that information comes to light, it could prevent you from extending your visa.

If you're employer and an approved sponsor, then you have a duty to keep records of wages and produce pay slips. Even if you pay cash, this needs to be documented.

Subclass 457 and 482 visa holder employees who do not declare their wages to the ATO will be found to be in breach of their visa conditions and this may lead to visa cancellation.

Data matching will pick up any discrepancies between Business Activity Statements (BAS), tax assessments, bank records between employers and employees.  

If evidence emerges that you’re an employer who offers sponsorship and are paying visa holders below average wages, then it could result in your sponsorship approval being cancelled.

When will the audit take place?

This audit will take place over the next three years and is part of a recent Australian Government drive to pay closer attention to the information it holds and be able to share records to investigate fraud and non-compliance.

Should you have any questions about the above information or if you want to discuss your particular circumstances in more detail please do not hesitate to contact us for a confidential discussion on (03) 9614 7111.

 

Global Talent Visa

On Sunday 18th March 2018 the subclass 457 visa was abolished and immediately replaced with the Temporary Skilled Shortage Visa (TSS visa).  Against the backdrop of this well publicised reform, The Minister for Citizenship and Multicultural Affairs, The Hon Alan Tudge MP announced a further expansion of this program, unveiled as the Global Talent Visa.  The Global Talent Visa will in effect be a new stream of the TSS program that will apply in two different scenarios:

1.       Established business wanting to employ high income earners from abroad with salaries of AUD$180,000 and above; or

2.       For proposed employees of “approved” start-up entities which operates within STEM fields. 

Prior to its abolition, there was widespread criticism that the 457 visa program was no longer fit for purpose and this served as a significant driver for its reform and ultimate replacement with the TSS visa.  So far a lot of focus of the TSS visa has been on the occupation lists and the restrictions in this area however, the mechanics of the TSS visa limit not just the types of roles which are permitted to be filled by overseas nationals, but also to limit the types of businesses that are permitted to use this program.  For many occupations, minimum turnover and minimum existing employee head counts are required before the business can access the TSS program.

These additional limitations can dramatically reduce the options available for start-ups.  Under the Global Talent Visa pathway, there will be no specific occupation limitations however, under both streams, the business will be required to demonstrate that the appointment will have the capacity to pass on skills or to develop other Australian employees.  

The 12-month trial, if successful will allow the visa holders to access Permanent residency in ways that mirror the existing Permanent Residency pathways for TSS visa holders with occupations on the Medium to Long Term visa.  Like all TSS visas, the applicants will be required to meet health and character and have the skills and experience necessary to perform the role. 

Should you have any questions about the above information or if you want to discuss how your business can access these arrangements in more detail please do not hesitate to contact us for a confidential discussion on (03) 9614 7111 on send us an on-line enquiry.

New Subclass 482 Temporary Skill Shortage Visa

As a result of a broad package of reforms relating to employer sponsored skilled visa programs, announced by the Government on 18 April 2017 the 457 visa will cease to exist on 18 March and will be replaced by the new Temporary Skill Shortage (Subclass 482) visa which enables employers to access a temporary skilled overseas worker if an appropriately skilled Australian worker is unavailable.

An overseas worker must be nominated by a sponsoring business and obtain a Subclass 482 visa before they can commence work in Australia. The Subclass 482 visa has three streams:

  • Short-term stream – allows employers to source skilled overseas workers in occupations on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if the two year limitation would be inconsistent with an international trade obligation);
  • Medium-term stream – allows employers to source skilled overseas workers for occupations on the Medium and Long-term Strategic Skills List (MLTSSL) for up to four years; and
  • Labour Agreement stream – allows employers to source skilled overseas workers in accordance with a labour agreement with the Commonwealth, where there is a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available.

Changes to the Employer Nomination Scheme (Subclass 186) visa and the Regional Sponsored Migration Scheme (Subclass 187) visa will be implemented to complement the introduction of the Subclass 482 visa. The main changes will result in a tightening of eligibility for these visas by reference to criteria dealing with age, employment history, salary, English language, and eligible occupations.

Changes to eligibility requirements for the Temporary Residence Transition stream in the Subclass 186 and Subclass 187 visas will not apply to persons who held or had applied for a Subclass 457 visa when the changes were announced by the Government on 18 April 2017.

If you require further information or advice please contact the experienced team at Nevett Ford Lawyers.

Temporary Skill Shortage visa (TSS Visa) and Skilled Occupation Lists (SOL)

The Skilled Occupation List (SOL) is a list of skilled occupations that are in demand.

Occupations on the SOL List are assessed on an ongoing basis with new roles being included and removed from time to time (Immigration has confirmed that the list will be revised every 6 months).

The new Temporary Skill Shortage (TSS) visa (subclass 482) will come into effect in March and will replace the 457 program.

The TSS visa will still allow skilled workers to come to Australia to help fill a legitimate skills shortage. But this new type of visa will have fewer eligible skilled occupations than the 457 visa.

The Short-Term stream of the TSS visa will allowing an individual a stay of up to two years, and a Medium-Term stream will allow a stay of up to four years. The occupations will now be divided into the Short Term Skilled Occupations List (STSOL) for those applying under the Short-Term stream and the Medium and Long-term Strategic Skills Occupation List (MTSOL) for those applying under the Medium-Term Stream.

These new occupation lists for the new Temporary Skills Shortage (TSS) visa, along with the Employer Nomination Scheme (ENS) 186 visa and Regional Sponsored Migration Scheme (RSMS) 187 visa will be published in March 2018.

The Short-Term stream visa is renewable only once in Australia. 

The Medium-Stream visa holders may renew their visas onshore and may apply for permanent residence pathway after working for three years in Australia.

Tighter regulations

These new visa streams will have stricter requirements attached to them, and this includes higher English language capability, work experience requirements, additional character, anti-discrimination and training requirements and salary rates in line with current Australian market rate salaries. There will also be strict Labour Market Testing (LMT) requirements which means business sponsors will have to test the local labour market before taking someone from overseas.

If you require further information or advice please contact the experienced team at Nevett Ford Lawyers.

US Government Shutdown

In light of recent events in the U.S., many of you may be asking yourself, what is a government shutdown and how does this effect me? Here is a quick summary of this complex situation -

The U.S. government has shut down as the U.S. Congress has not passed any short-term or long-term measures to fund the government beyond this past weekend.  As a result, there is no funding available for U.S. government agencies outside of essential services or user-fee funded agencies or services.  The shutdown may or may not impact an individual immigration case depending on the type of case and/or where the case is in processing. We currently have no information as to how long the shutdown could continue, but when there is a Congressional agreement and the passage of a measure to fund the government either temporarily or for the fiscal year, the government will resume all services.  The following is how each agency is impacted as of the latest information we have on the government shutdown:

U.S. Citizenship and Immigration Service (USCIS)
USCIS is a fee-funded agency with the exception of E-Verify, so in a government shutdown, only E-Verify shuts down.  The USCIS hotline and processing should continue for the time being without disruption.

Department of State/U.S. Embassies and Consulates (Visa Processing) 
Visa and passport operations are fee-funded, so in a government shutdown there should not be any short-term effects to operations.  We will keep you updated the longer there is a shutdown if there are any impacts on visa or consular services as it is possible that if the shutdown continues over a longer term, these services may be impacted.

Department of Labor (DOL)VERY IMPORTANT FOR E-3 APPLICANTS
The  DOL Office of Foreign Labor Certifications (OFLC) has ceased processing all applications in this government shutdown, and personnel will not be available to respond to email or other inquiries. All processes with OFLC, including Labor Condition Applications (LCAs) will not be processed and cannot be filed.  The website to retrieve certified LCAs or to check processing on submitted applications has been shut down as well.

Customs and Border Protection (CBP)
CBP inspection and law enforcement personnel are considered "essential,” so are not impacted by a shutdown and ports of entry will be open.  Thus, travel to the U.S. should not be impacted and ESTA registrations online should remain open as it is also funded by user fees.   However, certain other functions of CBP may be impacted.

Please contact me directly at Melissa@nevettford.com.au or call us at (03) 9614 7111 if you have any concerns about your individual situation. 

 

Skilling Australians Fund

There have been significant legislative changes affecting visa holders and applicants of both the permanent Skilled Migration Program and the Temporary Skilled Migration Program (often known as the 457 visa program) and these continue throughout 2018.  However there are also changes forecasted for employers who participate in these programs, specifically in terms of an increased economic contribution into a newly formed fund designed to increase the skills, training and vocational education of Australians.

A Commitment to Training – The Existing Requirements

At present, in order to be an approved sponsor for the purposes of the 457 visa program (or support an application for permanent residency through the employer sponsored program), an organisation has two ways in which they can demonstrate their commitment to training. 

The first option is to demonstrate that they are spending at least 1% of their annual payroll on activities for the benefit of their employees that can be appropriately characterised as having a learning outcome.  These requirements come with a few caveats including:

  • The training outcomes must fit the size, scope and nature of the business;
  • The training must be for the benefit of Australian employees; and
  • The expenditure must not be for family members of the principals of the business. 

This leaves some discretion in the hands of employers as to how they want to engage and develop the skills of their existing employees.  For example, one of the most direct and obvious ways in which it is possible to meet the training obligations is for an employer to take on an apprentice or trainee.  The wages paged to that individual are then directly attributable to the employer’s commitment to training.

In the event a particular employer cannot meet this requirement there is an alternative option whereby a contribution to the value of 2% of the organisation’s annual payroll can be made into an Industry Training Fund (such as TAFE organisations). 

Skilling Australians Fund – The New Requirements

Commencing in March 2018, a new fund will be set up to assist with vocational education and training for Australians – the Skilling Australians Fund.  While the details of the funding model are currently being finalised, it will in part be funded by organisations who are participating in the temporary and permanent employer sponsored programs.

Organisations who have a need to source labour from abroad will be categorised as either small or large organisations depending on whether their turnover is below or above $10 Million.  From there they will be required to pay a levy per applicant into the Skilling Australians Fund.  From the information that has been announced, the levy will be payable in full at the time of the nomination, that is before a decision has been made on the nomination or the visa applications. 

The details of the levy payable are as follows: 

Table One:  Overview of Skilling Australian Levy of Organisations participating in Economic Migration Programs

Migration Program     

Temporary (457 / TSS) Visa Program
- Small Organisation: $1,200 per year per visa applicant
- Large Organisation: $1,800 per year per visa applicant

Permanent Visa Program
- Small Organisation: $3,000 per year per visa applicant
- Large Organisation: $5,000 per year per visa applicant

Should you have any questions about the above information or if you want to discuss how your business can access these arrangements in more detail please do not hesitate to contact us for a confidential discussion on (03) 9614 7111 on send us an on-line enquiry.

 

The new Temporary Skills Shortage (TSS) Visa

The Temporary Skill Shortage (TSS) visa will come into effect by March 2018.  It replaces the 457 visa and will be split into two groups Short-Term stream and Medium-Term stream. Here’s what you need to know:

What happens if I am on a 457 visa?

Those currently on a 457 visa will continue under the existing rules which apply to a 457.  The Department of Immigration and Border Protection is expected to announce what may happen to these 457 holders in the future.  It may be that an individual can transfer from a 457 to a TSS visa.

Short-Term TSS stream

The aim of the Short-Term TSS visa scheme is to allow businesses to fill posts with foreign workers on a temporary basis. They can only do this when they cannot find a suitably skilled Australian worker.

The positions eligible on the Short-Term TSS visa stream will be listed on the Short-Term Skilled Occupations List.  It’s a two-year visa with the possibility of one renewal so that’s a maximum of four years. It’s not clear at this stage whether they will be available to move onto permanent residency under the Employee Nominated Scheme (ENS) or Regional Sponsored Migration Scheme (RSMS). All potential applicants will need to meet a certain standard of English and score 5 or above on an International English Testing System (IELTS). 

Medium-Term TSS stream

The aim of this scheme is to allow Australian businesses to fill posts with foreign workers where there is a severe shortage in highly skilled and in demand occupations.  These positions have been assessed as being of high value to the Australian economy.

The positions eligible on the Medium-Term TSS visa stream will be listed on the Medium and Long Term Skilled Occupations List.  This visa is available for 4 years and people can qualify for permanent residency after three years of employment with the same employer.

For further information, advice and assistance, please contact the experienced team of Immigration Lawyers and Registered Migration Agents at Nevett Ford Lawyers Melbourne:

Telephone: + 61 3 9614 7111

Emailmelbourne@nevettford.com.au

 

 

Visa Cancellation

The Full Federal Court of Australia has clarified the test of “risk” in cancellation decisions.

Justice Charlesworth in the case of Muggeridge v Minister for Immigration and Border Protection [2017] FCAFC 200 held at paragraph 46:
        ‘The fact of prior offending will, in most if not all cases, invite consideration of the question of whether the person in question in fact presents some risk to the Australian community and the starting point in that consideration will invariably be the fact of the prior offending. But that is all. The statute does not, of itself, supply an answer to the factual question of whether a particular visa holder has a propensity, however slight, to re-offend.’

This case will likely have a large impact on person’s whose visa was cancelled on the basis of historical offending.

If your visa has been cancelled or you have received a notice of intention to cancel, it is important to obtain proper legal advice.

For further information, advice and assistance, please contact the experienced team of Immigration Lawyers and Registered Migration Agents at Nevett Ford Lawyers Melbourne:

Telephone: + 61 3 9614 7111

Email: melbourne@nevettford.com.au

Changes for visa applicants in same-sex relationships

From 9 December 2017, you can apply for a visa as your partner’s ‘spouse’ if you are in a same-sex marriage following the legalisation of same-sex marriage in Australia.

Under the changes, if you are in a same-sex marriage you can apply for a visa as your partner’s ‘spouse’, rather than as their ‘de facto partner’.

The changes will apply to Partner visas (subclasses 100, 309, 801 and 820) and to all other visas where you can include your spouse in your application.

You can also apply for a Prospective Marriage visa (subclass 300) if you are in a same-sex relationship and genuinely intend to marry your prospective spouse in Australia.

For further information, advice and assistance, please contact the experienced team of Immigration Lawyers and Registered Migration Agents at Nevett Ford Lawyers Melbourne:

Telephone: + 61 3 9614 7111

Email: melbourne@nevettford.com.au

One strike, you're out: The visa changes that could leave you facing a 10-year ban

New regulations introduced by the Federal Government which was changed recently to target anyone who submits incorrect information as part of an Australian visa application could be effectively barred from reapplying for a decade.

The previous penalty was only 12 months which is now replaced with a potential ban from making a new application for 10 years. The material targeted includes inaccurate statements, omissions of fact, or lodging bogus documents such as bank records, work experience claims or false English language proficiency scores.

An application lodged since November 18 may now be refused if fraud was detected on any earlier application made within the previous 10 years. This replaces a 12-month period that had applied to those who withdrew their application once notified of suspected fraud - a way to avoid a potential three-year ban if that visa was subsequently refused.

The measure covers a range of temporary visa classes, including student visas, family visas and skilled migration classes, as well as any applications made by members of a person’s family.

Therefore, it’s important for applicant’s to be cautious when completing their documents and make sure that all the information provided must be correct.

Temporary Sponsored Parent Visa – Bill not passed

The Department originally announced that the new 5 year Temporary Sponsored Parent Visa would be introduced at around this time.  However, the Bill enabling the new visa to come into effect has not yet been approved by the Senate.

We will monitor the situation and provide a further update in due course.

457 News Update: New training levy (March 2018)

The existing Subclass 457 training benchmark requirements will cease in March 2018, with a new Skilling Australians Fund (SAF) levy to be paid instead at the time a Nomination is lodged for the new Temporary Skill Shortage (TSS) visa, as well as the subclass 186 and 187 visas.

Based on currently available information the amounts payable per applicant are set out as follows:

·         The charge will be calculated according to the number of years set out in the nomination.

·         A small business (annual turnover of less than $10 million) will pay $1,200 per nomination per year for a TSS visa.

·         A large business will pay $1,800 per nominee per year.

·         If the employee is applying for a 4 year TSS visa, this will require the 4 annual payments to be made at the time of application. If a large business nominates an employee for a 2 year TSS visa, the business must pay the annual amount for 2 years.

·         For permanent visas, the charge will be $5,000 per applicant for a large business, and $3,000 per applicant for a small business.

·         The maximum amount of the nomination training contribution charge is capped at $8,000 for nominations relating to a temporary visa, and $5,500 for nominations relating to permanent visas, for the financial year commencing 1 July 2017.

·         Nomination contribution charges to be made in later financial years will be indexed in line with CPI.

It is still unclear but it is likely that this fee cannot be passed on to the visa applicant.

For further information and advice please contact Nevett Ford Lawyers:

Telephone: + 61 3 9614 7111

Email: melbourne@nevettford.com.au

Migration Update - November 2017

The Department of Immigration & Border Protection (DIBP) has made some important changes in November, including:

-       Postponing the introduction of the new Sponsored Parent visas;

-       Changes to the Public Interest Criterion ‘4020’ (fraud);

-       New requirements for health insurance and not having a health care debt

-       New conditions requiring temporary residents to use a single identity in dealing with Government departments and not to engage in criminal conduct in Australia.

Temporary Sponsored Parent Visa Update

The Government previously announced the introduction of temporary sponsored parent visas in November 2017.

The relevant legislation - the Migration Amendment (Family Violence and Other Measures) Bill 2016 has not passed the Senate and has been referred to a Senate Committee for Consideration.

Further updates are expected in 2018.

Changes to Public Interest Criteria (PIC) ‘4020’ (Fraud)

Significant changes have been introduced to the 4020 Public Interest Criteria (PIC).

PIC 4020 can result in refusal of a visa application if false or misleading information is provided.

Previously, Immigration would look at information provided in either:

-       the current application being processed; or

-       a visa which has been held by the applicant within the last 12 months; or

-       an application which has been refused in the last 3 years (or 5 years in some cases).

The changes will mean that an application can be refused if false or misleading information is provided for:

-       Visas held; or

-       Visas applied for within the last 10 years.

Therefore, if false or misleading information is provided in a visa application, it could affect future applications for up to 10 years.

Previously, it was possible to withdraw a visa application if false or misleading information had been provided and this would not necessarily result in 4020 refusals for future applications. This will no longer be the case as 4020 will apply for any visa applications made within the last 10 years, whether the application is granted, refused or withdrawn.

One of the commonly encountered issues with 4020 is the failure to declare past criminal records when making a visa application. Generally, a declaration about previous offences is included in the visa application form. If this is not correctly completed, it can enliven 4020 issues. This would affect both the current application, and potentially any future applications for the next 10 years.

Public Health Care Debts

A new visa condition ‘8602’ requires visa applicants for temporary visas not to have an outstanding public health debt. This would apply to medical costs owing to either Australian state, territory or federal governments. If a temporary visa holder incurs a public health debt, this could result in cancellation of their current visa and also make it more difficult to obtain subsequent visas.

Health Insurance Requirements Clarified

Many temporary visas have a requirement that the applicant hold suitable health insurance for grant and that they continue to do so whilst in Australia on their visa.

A definition of "Adequate arrangements for health insurance" has been added to the Migration Regulations. The definition allows the Minister to specify what kind of health insurance will meet visa requirements.

Single Identity Condition 8304

A new visa condition 8304 has been created which requires temporary visa holders to:

-       Use a single identity when dealing with Australian State, Territory and Federal Governments; and

-       If the visa holder changes name, to notify the relevant Australian government agencies they deal with as soon as practicable and ensure that the change is given effect

Criminal Conduct Condition 8564 and Violent/Disruptive Activities Condition 8303

Condition 8564 forbids the visa holder to engage in criminal activities in Australia. Previously it only applied to Bridging Visa E (BE) visas. The condition will now apply to a wide range of temporary visas.

-       Condition 8303 has been broadened to prohibit activities which endanger or threaten individuals. Previously, it only applied to violent or disruptive activities affecting the Australian community more broadly.

-       As a result it will be easier for Immigration to cancel temporary visas of people engaging in criminal or other dangerous activities in Australia.

For further information, advice and assistance, please contact the experienced team of Immigration Lawyers and Registered Migration Agents at Nevett Ford Lawyers Melbourne:

Telephone: + 61 3 9614 7111

Email: melbourne@nevettford.com.au

 

Australian citizenship changes – again!

On 20 April 2017, the Australian Government announced a series of changes to the Australian citizenship requirements.

After the legislation necessary to implement these changes was introduced into Parliament it became clear that the government would not receive sufficient support to have the legislation passed and so, on 18 October 2017, proposed amendments to the Bill were announced.

Subject to the passing of the proposed amended legislation, the new requirements for citizenship will come into effect on 1 July 2018 and include:

  • increasing the general residence requirement, which means applicants for Australian citizenship will need to have a minimum of four years permanent residence immediately prior to their application for citizenship with no more than one year spent outside Australia during that period
  • completing a separate English language test, where applicants will need to demonstrate English language listening, speaking, reading and writing skills at the modest level before applying for citizenship by conferral
  • strengthening the Australian values statement to include reference to allegiance to Australia and requiring applicants to undertake to integrate into and contribute to the Australian community
  • strengthening the test for Australian citizenship through the addition of new test questions about Australian values and the privileges and responsibilities of Australian citizenship
  • a requirement for applicants to demonstrate their integration into the Australian community
  • strengthening the pledge to refer to allegiance to Australia, and extending the requirement to make the pledge to applicants aged 16 years and over for all streams of citizenship by application, including citizenship by descent, adoption and resumption.

What does this mean for persons who have already applied for citizenship?

Applications for Australian citizenship lodged up to 30 June 2018 will be assessed against the eligibility criteria in place when the application was made.

Applications on or after 1 July 2018 (subject to the passage of legislation)

From 1 July 2018 (subject to the passage of legislation), the new requirements for Australian citizenship will take effect. If you apply for Australian citizenship on or after this date, your application will be assessed against the new requirements.

Further information

Please contact us if you require more information.

457 Visa Update – October 2017

As previously flagged in one of our earlier updates, the 457 visa program will transition to the Temporary Skills Shortage (TSS) Visa from March 2018.  It is expected that there will be ongoing changes to the requirements businesses need to meet in order to nominate visa holders. This update relates to some of the recent changes for businesses and 457 visa holders.

Changes to Market Salary Rate Requirements

The Department of Immigration & Border Protection (DIBP) has strengthened ‘market salary’ requirements, meaning employers will need to provide additional documentation to show they are paying their visa holders equivalent market salary rates to local workers.

In an initiative to prevent visa holders from being exploited where there is no Australian-equivalent employee, employers will need to:

§  Provide a written statement outlining how they have determined the pay for an equivalent Australian worker

§  Prepare references to the job outlook and prospects of the role in the Australian market.

This extra documentation is required in addition to the usual evidence requirements businesses must show to ensure Australian market salary rates have been met.

Labour Market Testing Evidence Arrangements

Businesses who have lodged a nomination application on or after 1 October 2017, will need to provide additional evidence to show they have adequately tested the local labour market.

The main changes for businesses are as follows:

§  A copy of relevant advertisements will need to be provided, including evidence of the duration of the advertising period;

§  Receipts for any advertising fees paid to be submitted at the time of application;

§  Advertisements also need to be nationally accessible, for example through a service such as SEEK, MyCareer, LinkedIn, Gumtree and alike;

§  The Domestic Recruitment Table will no longer be accepted by DIBP as a way of demonstrating that the Australian labour market has been tested.

 

When the 457 visa program transitions to the Temporary Skills Shortage (TSS) Visa in March 2018, businesses may need to meet additional labour market testing requirements. Further information is expected from DIBP in coming months.

The DIBP states that these changes aim to ensure overseas professionals are nominated for positions which demand skills and experience that are difficult to source locally.

Permanent Residence Prospects for Employees Currently on a 457 visa

We can confirm existing subclass 457 visa holders or applicants as at 18 April 2017 will continue to have access to an employer sponsored pathway to permanent residence, however the policies governing the transitional provisions are yet to be confirmed by DIBP. The DIBP has stated it hopes to advise of this before the end of the year.

Managing the 457 visa changes

To support businesses throughout the 457 changes, Nevett Ford Lawyers can advise your business on how to manage and prepare for the additional requirements to nominate visa holders.

Contact us today and speak to one of our team of immigration lawyers and registered migration agents for more information:

Telephone: +61 3 9614 7111

Email: Melbourne@nevettford.com.au

Australia may introduce ‘mandatory’ provisional visas before permanent residency

Migrants coming to Australia may have to spend a certain period of time on mandatory provisional visas before they are granted a permanent residency. The Immigration Department is exploring this possibility in a visa transformation discussion paper by inviting submissions from the public.

The number of persons in Australia applying for permanent residence has grown substantially over the last two decades. In 2015-16, around half of all permanent visas were granted to people already in Australia on a temporary visa.  This means that temporary residence is increasingly becoming the first step to living in Australia permanently.

It has also been argued that it’s in the national interest to facilitate a pathway to permanent residence for the “best and the brightest” international students and “skilled workers” and that some permanent visas include mandatory provisional visa stages.

However, under most of the permanent visa categories, migrants do not have to spend any time in Australia before they are granted permanent residency, which the discussion paper says is inconsistent with “like-minded countries”, such as the UK, the Netherlands and the US that have a more formal assessment process and period for evaluating those who seek to stay permanently.”

Though introducing such a probationary period for permanent migrants is likely to deliver budget savings, concerns have been raised that it could create a divide in the Australian society. The proposed reforms could undermine Australia's social cohesion and potentially increase the risk factors that may lead to violent extremism by creating a two-tier society where migrants are treated substantially differently to Australian citizens.

Major changes being discussed include slashing the number of visa categories from 99 to about 10 and making the visa system flexible so the government can respond more quickly to local and global trends.

Would you like to know your eligibility for a visa or seeking permanent residence? Call our office today.

Subclass 187 RSMS is an alternative solution to Permeant Residence

The RSMS (Regional Sponsored Migration Scheme) has significant benefits as compared to other skilled migration pathways. RSMS has the widest occupations list of any skilled migration visa type. Any occupation at ANZSCO skill level 1, 2 or 3 can be used to apply for an RSMS visa.
The RSMS Occupations List includes the following occupation categories:

  • Skill Level 1: Management and Professional occupations requiring a bachelor degree or 5 years of work experience
  • Skill Level 2: Associate Professional occupations requiring a diploma-level qualification or 3 years of work experience
  • Skill Level 3: Technician and Trade occupations requiring a Certificate III which includes 2 years of on-the-job training or a Certificate IV

The RSMSOL includes 224 occupations which are not on either the STSOL (used for 457 and ENS visa applications) or the MLTSSL (used for Skilled Independent Subclass 189 visas). These include occupations such as:

  • Various Specialist Managers such as PR managers, Policy and Planning Managers, Production Managers, Procurement Managers, Wholesalers and Importers or Exporters
  • Hospitality, Retail and Service Managers such as Retail Managers, Call or Contact Centre Managers and Financial Institution Branch Managers
  • Occupations in the Arts such as performers, authors, directors
  • Human Resources occupations
  • Sales Representatives in Industrial, Medical and Pharmaceutical Products
  • Air and Sea Transport Professionals such as pilots, ships engineers etc
  • Science occupations such as biochemists, metallurgists, research and development managers
  • Various engineering professional, technician and drafting specialisations
  • Office Managers and Practice Managers
  • Receptionists, secretaries and personal assistants
  • Child Care Group Leaders
  • Various trades

However, from March 2018, the selection of occupations for RSMS will be much more limited. Most applicants will need to have an occupation on the MLTSSL - at 183 occupations; this is much shorter than the RSMSOL which has 673 occupations. Additional occupations may be available for regional positions, but at this stage it is not clear how many extra occupations will be available.

Training Requirement

 

Unlike the 457 and ENS programs, the employer does not need to show that they have met the training benchmarks to be able to sponsor for RSMS. Establishing compliance with the training benchmarks is generally the most involved part of applying for 457 and ENS, so this is of great benefit.

From March 2018, a training levy will be payable when applying for an RSMS visa. For businesses with under AUD 10 million in turnover, the training levy will be $3,000. For larger businesses, the levy will be $5,000. It is not yet clear if this can be paid by the individual applying for the RSMS visa, or whether it must be paid by the employer.

Skill Level and English Requirement

Most applicants only need to meet the ANZSCO skill level for their occupation to meet the skill requirement for RSMS. Either a formal qualification or work experience is generally sufficient to meet the ANZSCO skill level, though registration is also necessary if this would be required for the position.

Unlike general skilled migration or the ENS Direct Entry Stream, a formal skills assessment is not in general required. This would normally only be necessary where nominating a trade occupation and where the applicant does not have an Australian trade certificate.

In terms of minimum work experience, this is currently not required if you hold a relevant qualification. This means that international students can potentially qualify for an RSMS visa without any work experience. 

From March 2018, a minimum of 3 years of work experience in the occupation will be required when applying for an RSMS visa.

For the Direct Entry RSMS pathway, Competent English is sufficient to qualify (6 in each band) - this is similar to what is required for the ENS visa, but significantly easier than the requirement for General Skilled Migration.

To meet the pass mark of 60 points for General Skilled Migration, many applicants will need Proficient English (7 in each band of IELTS or equivalent). Many applicants in pro rata occupations need 65 or 70 points to receive an invitation for a Skilled Independent Subclass 189 visa - these applicants may need to get full points for Superior English (8 in each band or equivalent).

The RSMS visa is a permanent visa which allows you to live in Australia indefinitely. This is more beneficial than the 457 visa, which for most occupations is now valid for only 2 years. It is also more beneficial than the Skilled Regional Provisional Subclass 489 visa, which is a 4-year visa which requires you to live and work in a regional area for 2 years before being eligible for permanent residence. However the RSMS visa can be cancelled if you do not commence work with your employer or if you do not stay with the employer for 2 years. However, if this is due to circumstances beyond your control (eg business went into liquidation, redundancy etc.), your visa is unlikely to be cancelled, particularly if you do continue to live in a regional area.

Lastly the RSMS is a highly beneficial visa which in many ways is easier to qualify for than the 457, ENS and General Skilled programs.

However, from March 2018, many applicants will no longer be eligible for the RSMS visa - particularly if your occupation is not on the MLTSSL or if you do not have 3 years of skilled work experience.

Contact Nevett Ford Lawyers if you require advice or assistance.

457 Visa - Training Benchmark changes

Changes continue to be rolled out by the Department of Immigration & Border Protection (DIBP).  A recent change relates to the training benchmarks that 457 business sponsors are obliged to meet - this article explains how the changes impact employers.

Benchmark A - Payments to a Training Fund

This involves paying 2% of payroll to an industry training fund. From July 2017 payments may be made to one of the following:

  • Industry training fund
  • Fund managed by recognised Industry Body
  • Scholarship fund operated by Australian TAFE or University.

The following types of expenditure are now not eligible:

  • Funds operated by RTOs or private individuals
  • Funds paying commissions or offering refunds if application fails

The main impact of this change is that the previous practice of private education providers accepting payments for Benchmark A will be discontinued.

Benchmark B - Expenditure on Training Australians in the Business

This involves spending 1% of payroll on training Australians in the business. From July 2017 payments may include:

  • Apprentices, trainees or recent graduates
  • RTO's delivering face-to-face training which contributes to formal qualification
  • e-Learning or training software
  • Formal courses of study + associated costs (e.g. travel)
  • Training officers - must be "sole role" of the employee (to train other employees in the business)
  • Attending conferences for Continuing Professional Development (CPD).

 

The following types of expenditure are now not eligible:

  • Salaries of staff attending training
  • Membership fees - this was previously counted
  • Books, journals or magazine subscriptions - this was previously counted
  • Conferences for purposes other than CPD
  • Hiring a booth at trade show, conference or expo On-the-job training - previously, structured on-the-job training could be counted in some circumstances
  • Training not relevant to business' industry - it is not clear how closely related the training must be to the industry
  • Training of principals or family members - previously, training of family members could be counted providing it was also made available to other employees
  • Induction training.

Based on current information, it appears that payment of external providers to deliver training for Australian employees, is excluded unless it leads to a formal qualification. This would form the bulk of the training expenditure of most businesses and so many will need to restructure their training to comply with the new Benchmark B. Once further clarity is available we will let you know.

What is also unclear at the moment is whether 457 business sponsors who have been calculating their training benchmark expenditure on the previous training benchmark provisions will be deemed to have satisfied the requirement. 

We are awaiting further clarification on these points from DIBP and will provide further updates once available.

Calculating 'Payroll'

As a general rule, payroll includes:

  • wages and salaries as per state payroll legislation, and
  • payments made to contractors or subcontractors if the work completed is related to services or products provided by sponsor

If the business does not have ‘a payroll’ they are expected to count Directors' salaries, fees and drawings, or the profit of the business.

Timing of Training Activities

Payroll and training expenditure must be for the same period.

From July 2017, it has been clarified that this expenditure may be for the 12 months prior to lodgement of an application, or for the previous full financial year - this should help employers to gather relevant information and documentation.

Start-up businesses operating for less than 12 months will be required to show they have an auditable plan to meet these benchmarks.

We will provide ongoing updates as information becomes available, including the training requirements from March 2018 when the new ‘Temporary Skills Shortage’ (TSS) visa commences (replacing the current 457 visa).
Whether you are an individual visa holder considering how these changes affect you personally or an employer wondering how these and the further proposed changes affect your ability to recruit globally please feel free to contact us at Nevett Ford to see how we are able to assist. 

Employer Nomination Scheme S/C 186 Visa - Changes Commence

Further to the announcement earlier in the year by the Department of Immigration and Border Protection (DIBP) the first wave of amendments to the Employer Nomination Scheme have been released, with most changes taking effect from 1 July 2017. 

The major talking points from these amendments include:

  • The reduction of the upper age limit from 49 to 44 years of age for an applicant (Direct Entry Stream);
  • The removal of the exemption from providing a skills assessment due to earnings being above the high income threshold (Direct Entry Stream);
  • The removal of the exemption from providing evidence of competent English due to earnings being above the high income threshold (Direct Entry Stream);
  • A change in the level of English Language Skill required by primary applicants (Temporary Residence Transition Stream).  This change has increased the requirements from vocational to competent which in practice this means an IELTS test score of at least 6 in all bands (or equivalent test); and
  • The introduction of specific requirements, for particular occupations (known as caveats) for applications made under the Direct Entry program.  This now mirrors that which applies under the Temporary Work 457 visa program which was originally introduced in April 2017. 

High Income Threshold Exemptions
While most of the above reforms apply on to applications lodged after 1st July 2017, both the English Language and Skills Assessment exemptions where the High Income Threshold was met were retrospectively applied to applications lodged but not finally determined by that date.  The subsequent media release made by the DIBP clarifying that these amendments would not be applied to applications lodged before 1 July 2017 has not yet been backed by formal legislative amendment supporting this statement.

Reforms Overall
In an earlier blog post we outlined the timetable of changes which is taking place.  The above represents step one of the broader reform agenda due to affect both the Temporary Work Visa program (Subclass 457) and the Employer Nomination Scheme (Subclass 186). This agenda will see changes rolled out on an on-going basis until March 2018, by which time all announced reforms will have been implemented. 

Whether you are an individual visa holder considering how these changes affect you personally or an employer wondering how these and the further proposed changes affect your ability to recruit globally please feel free to contact us at Nevett Ford to see how we are able to assist. 

 

Change to age limits for Working Holiday Maker Visas

The eligible age for Subclass 417 Working Holiday will be amended to be:

  • aged at least 18 and no more than 35 years old. If an age younger than 35 is specified in an instrument for a specified passport, that younger age limit will be applied

Subclass 462 Work and Holiday visas:

  • the increase to the age limit of 35 years is only available for those countries where Australia has negotiated a similar bilateral age increase.

These amendments apply to visa applications made on or after 1 July 2017.