New Labour Market Testing (LMT) requirements for Subclass 482 applications

New legislation governing the Labour Market Testing (LMT) and advertising requirements to be undertaken before sponsoring a Temporary Skills Shortage (TSS) Subclass 482 Visa holder came into effect on Sunday 12 August 2018. The below legislative changes apply to nominations made on or after 12 August 2018.

At least two advertisements that meet the following: 

 
  • Advertising must be undertaken within the 4 month period immediately prior to lodgement of the nomination application
  • Advertising must be placed on one of the following mediums:
 

- a recruitment website with national reach in Australia; or
- in print media with national reach in Australia; or
- on radio with national reach in Australia

 
  • The advertisement must run for 4 weeks and applications or expressions of interest must be accepted for at least 4 weeks from the time the advertisement was first published
  • The position must be advertised to include:
 

- The position title or job description
- Clear statements of the required skills and experience
- Name of the sponsor or engaged recruitment agency
- Salary for the position if earnings will be less than $96,400

We encourage you to seek professional advice to understand how your business can remain compliant with LMT requirements, particularly as several restrictions apply for online advertising. 

In a number of circumstances, sponsoring employers can provide a submission demonstrating their reasons for sponsoring a TSS Subclass 482 Visa holder instead of meeting the above LMT requirements. 
 
These circumstances are:

 
  • A position in a profession which requires an internationally recognised record of exceptional and outstanding achievement - for example a sport, academia and research or a top-talent chef role
  • A position for an intra-company transferee
  • A position that is held by an existing Subclass 482 or 457 visa holder where the nomination has been submitted only because the annual earnings have changed or there has been a change in business structure requiring a transfer to a new sponsoring entity
  • A position for which the annual earnings will be equal to or greater than AUD $250,000
  • A position under ANZSCO Minor Group 253 - Medical Practitioners (excluding General Medical Practitioner, Medical Practitioners nec and excluding ANZSCO Unit Group 4111 - Ambulance Officers and Paramedics). 

The legislation states that the submission must provide reasons why a suitably qualified and experienced Australian or eligible temporary visa holder is not readily available to fill the nominated position. We recommend that you seek professional advice if you choose to prepare a submission. 

Please contact Nevett Ford Lawyers for further information by telephone: +61 3 9614 7111 or by email: melbourne@nevettford.com.au

PARENT VISAS - Australia

Often once you have migrated and settled permanently in Australia you want to bring your parents to join you and your family.

This blog is not intended to be an exhaustive examination of all of the options available to parents but covers some information in relation to the more main Parent visa types.  We suggest that you schedule an initial consultation to discuss specific options to you and your parents.

Given the length of processing time of permanent residence parent visa applications, parents may also need to consider short-term temporary visas such as Visitor visas that enable them to live in Australia on a temporary basis whilst the permanent resident visa is being processed.

There are certain basic requirements that have to be met by all permanent residence visas for parents and they are summarised as follows:

 
  • Parents must have an Australian child who is a citizen or permanent resident “settled” in Australia willing and able to sponsor them. It’s generally accepted that “settled” requires the sponsoring child to have been living in Australia for a period of two years prior to the parent visa application.
  • A ‘Balance of Family Test’ needs to be met, which requires at least 50% of the parent’s children to be permanently residing in Australia or have more children in Australia than any other country. It’s important to include the combined children of both parents, normally not an issue but in cases where parents have had children with other partners it’s a consideration that needs to be taken into account.

There are basically two (2) types of permanent resident visa for parents namely the Contributory and Non-ContributoryPlease note that the processing time of a non-contributory parent visa applications is currently around 30 years so it is usually not practical to rely upon this type of visa to obtain permanent residence as a parent in Australia.

As far as contributory parent visa applications a distinction is made for parents applying onshore (in Australia) and offshore.

Onshore “Aged” Parent – Contributory (Subclass 864)

This visa is called an ‘aged’ parent visa because the parent who is the primary applicant has to be of retirement age. The Contributory Parent Visa is currently the fastest way for your parents to stay permanently in Australia. Whilst this is the most expensive option (because of the “contribution” that your parents make to Australia in terms of Visa application fees and charges) waiting times are currently about 30 months.

The “contribution” made to the Australian Government by way of visa application charges of approximately $AUD92 355 for both parents is high once the contributory parent visa is approved it will give your parents access to government funded healthcare (Medicare) and Australia is essentially bearing the risk of future medical costs which could be incurred by ageing parents.

Your parents need to be inside Australia at time of application and hold a visa that does not prohibit them from filing an onshore application in Australia. This needs to be checked carefully and Nevett Ford Lawyers can assist in this regard.

Contributory Parent Visa (Subclass 143)

This is the offshore version of the contributory parent visa application (above). The requirements are similar to the onshore application except that for the offshore version parents do not have to be of retirement age. Because of the time it takes to process these applications (the Department recently published that the current wait times are 44 – 56 months) it would be common for parents wanting to visit their children in Australia to apply for temporary Visitor visas in the interim period.

Most parents would normally apply for a Long Stay Visitors Visa (Subclass 600) which can be granted for periods of 5 years, 3 years, 18 months or 12 months. 

If you and your family are thinking about applying for a Parent visa we strongly advise that you obtain advice prior to embarking on the application process.  Nevett Ford Lawyers can assist so please contact us by telephone on +613 9614 7111 or melbourne@nevettford.com.au for further information and to schedule an initial consultation. 

New changes to SkillSelect visas from 1 July 2018

The Department of Home Affair (DHA) has announced an increase to the pool and pass mark to 65 points for the following three visa subclasses where an application is made on or after 1 July 2018 in response to an invitation given on or after 1 July 2018:

  • Skilled-Independent (Permanent) (Class SI) Subclass 189
  • Skilled-Nominated (Permanent) (Class SN) Subclass 190
  • Skilled-Regional Sponsored (Provisional) (Class SP) Subclass 489

The new pass mark reflects the high level of interest in skilled migration to Australia and the high calibre of prospective applicants who express their interest in the General Skilled Migration program.

Under the transitional arrangements, the pool and pass mark from the previous instrument is preserved for all visa applications for the above visas made before, on or after 1 July 2018 in response to an invitation given by the Minister before 1 July 2018.

Another major change to the abovementioned visas is that all visa applicants must be under 45 years of age at the time of invitation. According to DHA figures, only around 1% of applicants for the 189 subclass are between 45 and 50 at present. Whilst the overall impact on program numbers are small, for people between 45 and 50 the effect will be significant because the age limit for permanent employer sponsored has also been reduced to 45.

Even though the actual cut off points for 189 applicants will need to be higher (75 or more in most cases), where an applicant is applying for a State/Territory nominated 190 visa they will receive an invitation as soon as they are approved for State/Territory support and their points are at least 65. Where an applicant was aiming for 60 with 5 for State/Territory nomination, they may need to look at the State/Territory nominated 489 visa, which offers 10 points for State/Territory support.

If you need advice and assistance, please contact us on + 61 3 9614 7111 to arrange an initial consultation with one of our Migration Agents/Lawyers.

Arrangements for Work and Holiday and Working Holiday Visa Applications

Arrangements for Work and Holiday and Working Holiday Visa Applications from 1 July 2018

From the 1 July 2018 the following changes apply:

1.    WORK AND HOLIDAY (Subclass 462 visa) VISAS - ONLINE FORM 1208

There are mandatory online lodgement of visa applications, with exceptions (an authorising email is sent to the applicant permitting the use of paper form 1208) for the following applicants for a Work and Holiday (Temporary) (Class US) visa:

 
  • applicants who are, or have previously been, in Australia as the holder of a Class US visa, and applicants from Argentina, Slovak Republic, Spain, United States of America and Uruguay.

2.    WORKING HOLIDAY (Subclass 417 visa) - ONLINE FORM 1150

There are mandatory online lodgement of visa applications, with exceptions (an authorising email is sent to the applicant permitting the use of paper Form 1150) for all applicants for a Working Holiday (Temporary) (Class TZ) visa.

There is also an update for the address to which applications must be sent for applicants from the State of Israel.  State of Israel Applications must be lodged at the following location:

Australian Embassy Visa Office Wallstrasse 76-79 D-10179 Berlin GERMANY

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Nevett Ford Lawyers can assist ith all Australian visa applications and appeals.  Contact us today for further information.

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Temporary Skills Shortage (subclass 482) visa – Labour Market Testing update

Labour Market Testing (LMT) for TSS update

The list of acceptable mediums in which nominated positions may be advertised has been extended to include LinkedIn’s online recruitment platform and industry specific recruitment websites that are relevant to the nominated occupation

Standard business sponsors must test the local labour market before lodging a nomination application (for a new or existing visa holder) and must attach evidence of this in ImmiAccount as outlined below unless an International Trade Obligation (ITO) applies.

For the TSS visa program, there are currently no instruments in place which provide any other exemptions, for example:

 
  • for specific occupations
  • on the basis of the skill level of group of occupations (example ANZSCO skill level 1 or 2) or
  • due to a major disaster.

Note: occupation-based exemptions which were previously available under the Temporary Work (Skilled) visa (subclass 457) are not available under the TSS program.

While there are currently no further exemptions under the TSS program, the Department is accepting alternative LMT evidence for certain cohorts of applicants as described below – see Alternative evidence below.

International trade obligations (ITOs)

LMT is not required where it would conflict with Australia’s international trade obligations, in any of the following circumstances:

 
  • the worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore
  • the worker you nominate is a current employee of a business that is an associated entity of your business and the associated entity is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China, Japan, South Korea or New Zealand
  • the worker you nominate is a current employee of an associated entity of your business and that associated entity operates in a country that is a member of the World Trade Organisation (WTO), and the nominated occupation is an Executive or Senior Manager occupation for the purposes of international trade obligations and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia
  • your business currently operates in a WTO member country  or territory and is seeking to set up a business in Australia, and the nominated occupation is an Executive or Senior Manager occupation for the purposes of international trade obligations
  • the worker you nominate is a citizen of a WTO member country or territory and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

Countries which are currently WTO members are listed on the WTO website.

 
  • An international trade obligation means a commitment made by Australia under an international trade agreement.  
  • As per the DFAT website, the China-Australia Free Trade Agreement (ChAFTA) does not cover Hong Kong, Macau or Taiwan.

Method of LMT for standard business sponsors

The Migration Amendment (Skilling Australians Fund) Bill 2018, passed by the Parliament of Australia on 9 May 2018, is expected to be implemented during the first quarter of 2018-19. There will be changes to the LMT requirement at that time, including requiring LMT to be conducted:

 
  • for a period of four weeks
  • no more than four months before the nomination is lodged
  • such that advertisements set out any skills or experience requirements that are appropriate to the position.

Further information will be provided closer to implementation.

Until such time that the above changes are implemented, LMT should continue to be undertaken in accordance with the arrangements set out below.

Period in which LMT must have been undertaken

LMT must have been undertaken:

 
  • if the nomination application was lodged before 18 June 2018 - within the previous 12 months before lodging a nomination application
  • if the nomination application was lodged on or after 18 June 2018 - within the previous six months before lodging a nomination application
  • if within four months of lodging the nomination application, and if the sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched them from positions in the nominated occupation - since the date that these events occurred. Note: when this occurs, information about these redundancies or retrenchments must also be provided.

Method and Content of LMT advertising

Under policy, the Department would generally be satisfied that the LMT requirement is met provided the advertising meets all of the below:

 
  • the nominated position has been advertised in Australia
  • the advertisement was in English and included the following information:
 
  • the title, or a description, of the position Note: multiple positions in one advertisement are acceptable
  • the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
  • the annual earnings for the position—unless the annual earnings will be greater than the Fair Work High Income Threshold. Note: it is acceptable to publish a salary range—for example AUD80,000 to AUD90,000.
 
  • at least two advertisements were published in any of the below:
 
  • on a prominent or professional recruitment website with national reach (for example jobactive.gov.au) that publishes advertisements for positions throughout Australia.
     
  • Note: industry specific recruitment websites relevant to the occupation that are in significant use by the industry are an acceptable method of LMT advertising.
  • Note: a general classifieds website or an advertisement solely through social media notification (such as Twitter or Instagram) are not acceptable methods.
  • LinkedIn's online recruitment platform is acceptable for LMT purposes. Job vacancies restricted to LinkedIn profile members only are NOT acceptable for LMT purposes.
     
  • in national print media—that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia
  • on national radio—that is, radio programs that are broadcast or syndicated nationally or
  • on the businesses' website if the sponsor is an accredited sponsor.
 
  • the nominated position may be advertised in the same medium (on two separate occasions) or in any two different mediums simultaneously or on two separate occasions
  • if the advertisement is published on a website, it is expected that the advertisement would have 'remained live' for at least 21 consecutive calendar days
  • if the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days
  • advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency)—there is no requirement that the sponsor placed the advertisement themselves.

Evidence of LMT

Sponsors must provide evidence of attempts to recruit suitably qualified and experienced Australians (unless an international trade obligation applies).

This includes a copy of the advertisement(s) and receipt(s) for any fees paid. If this evidence does not accompany the nomination application in ImmiAccount, it will be refused.

Alternative Evidence

Alternative evidence can be considered sufficient to demonstrate LMT where the nominated position is a position:

 
  • in which the nominee has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts or academia and research.
 
  • Provide a submission explaining why the specific individual nominated is the only person, or one of very few people, who could undertake the nominated position and no Australian worker is available.
 
  • held by an existing TSS or subclass 457 visa holder for whom a new nomination has been lodged solely because:
 
  • the annual earnings that will apply to the nominee have changed or
  • a change in business structure has resulted in the nominee's employer lodging a new application to be approved as a standard business sponsor.
  • Provide a submission explaining the earnings change or the business restructure, including details of the existing TSS or subclass 457 visa holder remaining in their current position.
 
  • relating to an intra corporate transfer (ICT). Note: an intra-corporate transfer is the transfer of an existing employee of a company to another branch or associated entity of that company operating in Australia.
 
  • Provide a formal letter of transfer or other documentation outlining the intra-corporate transfer arrangement.

Transitional arrangements for LMT undertaken before 18 March 2018

Transitional arrangements currently apply for LMT undertaken before 18 March 2018, provided the sponsor has made genuine efforts to recruit Australian workers, consistent with Migration Act requirements. These arrangements apply as it is understood that recruitment processes may already have been underway, or completed, at the time of TSS visa program implementation, and employers may need time to adjust their recruitment processes.

The advertising evidence provided will generally be accepted if the advertisement would have met pre 18 March 2018 LMT arrangements.

The advertising conducted pre 18 March 2018 must still have been advertised in Australia and in English, however, the Department will take a flexible approach to other LMT advertising requirements including:

 
  • certain type of information included in the advertisement
  • the period an individual advertisement remained 'live', and
  • in terms of the number of advertisements that meet the specified criteria.

Contact Nevett Ford Immigration Lawyers today if you need advice or assistance.

Telephone: +61 3 9614 7111

Email: Melbourne@nevettford.com.au

Nevett Ford Immigration Lawyers & Registered Migration Agents

Our experience in assessing individual circumstances ensures that you will be provided the best visa options for you and your family, and your business.  We can also represent you in relation to visa refusals and appeals to the Administrative Appeals Tribunal, Federal Court and Ministerial Intervention cases.

We will provide a complete and personalised service starting from the initial consultation, establishment of the direction of your case, and provide advice on the best visa and/or appeal options in the circumstances.

Nevett Ford Immigration Lawyers and Registered Migration Agents provide the following:-

 
  • Initial discussion to establish the direction of your case and the visa options available in accordance with the Migration Regulations, including the associated costs and benefits of all options.
  • Supply document checklists and forms required from visa applicant and/or sponsor.
  • Assistance to accurately prepare supporting evidence and complete applications.
  • Preparation of all necessary submissions to the Department of Home Affairs (DHA) in Australia or to Australian Visa Office overseas.
  • Ongoing liaison with the DHA and other government authorities as required
  • Representing you in relation to complex appeals matters at the Administrative Appeals Tribunal (AAT), Federal Court and Ministerial Intervention cases.
  • Advice and assistance to arrange the requisite medical and police checks as required.
  • Advice and assistance to respond to ‘Requests for further Information’ from DHA.
  • Communicating with third parties (doctors, psychologists, employers etc) to obtain supporting documentation in support of your application.
  • Ongoing progress reporting on your matter throughout the process.

For advice and assistance please contact us today on:

Telephone: +61 3 9614 7111
Email: melbourne@nevettford.com.au

ADOPTION VISA – Australia (Subclass 102 visa)

The Australian Adoption visa (subclass 102) lets a child come to Australia to live with their adoptive parent. The child can already be adopted or be in the process of being adopted. The adoptive parent sponsors the child for this visa and usually applies on their behalf.

This is a permanent residence visa. If the adoption is through a State or Territory adoption authority, you can lodge the application before the adoption is finalised.

To apply for the Adoption Visa (Permanent) (Subclass 102), the child must be:

  • outside Australia when applying for the visa
  • adopted:

- with the involvement of an Australian State or Territory adoption authority (either under the Hague Adoption Convention, a bilateral adoption with a competent authority of another country, or another adoption agreement)
- under the laws of a country other than Australia and their sponsor or their sponsor's partner has and been living outside Australia for the 12 months before the child applies for the visa

  • sponsored by their adoptive parent or their adoptive parent's partner
  • under 18 years of age when the application is lodged and when it is decided.

The child must also be sponsored by an adoptive parent who is:

  • an Australian citizen; or
  • the holder of an Australian permanent resident visa; or
  • an eligible New Zealand citizen.

What this visa lets the child do

It allows the child to:

  • travel to and stay in Australia indefinitely
  • work and study in Australia
  • enrol in Medicare, Australia’s scheme for health-related care and expenses
  • apply for Australian citizenship (if they are eligible)
  • sponsor eligible relatives for permanent residence
  • travel to and from Australia for five years from the date the visa is granted – after that time they will need another visa to enter Australia

Guardianship of children adopted from overseas

  •  If an adoption is not finalised or if it is not recognised by a state or territory adoption authority when the child enters Australia, the Minister for Immigration and Border Protection will be the guardian of the child. The guardianship powers are delegated to state and territory welfare authorities.
  • The minister stops being the guardian if any of the following occur:

- the child becomes an Australian citizen
- the child turns 18 years of age
- an Australian adoption order is made for the child

Adoptive parents living in Australia

Your relevant Australian State or Territory Central Adoption Authority (STCAA) must be involved in managing the adoption process with the country where the child is living.

If you are considering adopting a child from outside Australia, you should contact the central adoption authority in your State or Territory.

Privately arranged adoptions

Australian STCAAs do not generally support privately arranged adoptions either from in or outside Australia, including the adoption of children who are relatives. They are not able to help children or sponsors to meet the eligibility requirements for granting a visa to an adopted child.

Important: If you want to proceed with an adoption from outside Australia, which has not been arranged by your STCAA, it is strongly recommended you first seek legal advice both in Australia and in the country where the child lives.

Adoptive parents living outside Australia

Adoptions that are undertaken by Australian citizens, permanent residents or eligible New Zealand citizens who usually live in countries other than Australia, and that are arranged without the assistance of an Australian STCAA, are known as expatriate adoptions.

It is important to obtain appropriate advice before embarking on the adoption process.  Nevett Ford Lawyers has expertise in all aspects of the adoption visa process and can provide advice and assistance.

Please contact us today for further information:

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

NEW Skilling Australians FUND (SAF)

The Skilling Australians Fund legislation has just been passed in the Senate.

The Australian Government has stated that the purpose of the Skilling Australians Fund (the Fund) is for it to provide ongoing funding for vocational education and training (VET).  The Fund is supposed to support 300,000 more apprenticeships, traineeships, pre-apprenticeships, pre‑traineeships, and higher apprenticeships all across Australia.

The revenue for the Fund will be financed by the Government’s skilled migration reforms that require employers who sponsor a foreign worker to pay a Nomination Training Contribution Charge (known as a levy) under the following visa types, including:

 
  • Temporary Skill Shortage (TSS) visa
  • Employer Nomination Scheme (ENS) (subclass 186) visa
  • Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa

The levy has replaced the previous training benchmarks for employers who sponsor foreign workers on the above mentioned visas.

The new levy is payable by companies sponsoring overseas candidates for subclass 482/TSS visas and subclass 186 visas. The new system is a simpler one and for many employers it will be easier to meet and to administer. The training levy will be payable per application and at the nomination stage of the visa process. For each person an employer sponsors they will pay a set amount per year. The other relevant fact is the size of the employer's business or more specifically the size of their sales turnover or revenue. There will be one levy for employers with a turnover of less than $10 million and a higher amount for employers with a turnover of $10 million and above.

The amounts for a TSS/ subclass 482 visa are:

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For permanent residence employer sponsored applications - visa subclass 186/187. The permanent application figure is a higher payment bit it is one off payment and paid not annually:

 
  • If turnover less than $10 million - $3000
  • If turnover $10 million or higher - $5000

Some good news is that the levy will be tax deductible and if a nomination is refused or where an incorrect application is lodged and withdrawn, the levy will be refunded. However the cost of Skilling Training Fund levy cannot be passed on to the visa applicant.

If you need more information on SAF, call one of our Lawyers and Agents for a consultation.

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