DESIGNATED AREA MIGRATION AGREEMENT WITH WARRNAMBOOL CITY COUNCIL

Warrnambool City Council has signed a Designated Area Migration Agreement, or DAMA with the Commonwealth for the next five years.  DAMAs utilise the existing Temporary Skilled Shortage (or the subclass 457) visa framework to enable overseas nationals to work for specific approved employers within the DAMA-approved geographic region.  However, unlike the TSS program, variations to the standard requirements of this program are available.  These variations typically include:

  • Concessions to the level of English Language of the overseas national;

  • A greater number of occupations than what is permissible under the TSS program; and

  • In some situations, an ability to offer a salary under what is required under the TSS program is also available. 

A new DAMA (“DAMA II”) has also been agreed between the Northern Territory and the Commonwealth.  DAMA II is set to replace the original DAMA for the Territory which expires on 31 December 2018.  Like the previous incarnation, DAMA II will also offer a pathway to permanent residency for the skilled and semi-skilled occupations that have been approved under it.  Given occupations on the Short-Term Skilled Occupation List no longer have a pathway to Permanent Residency, further details are required to determine what settlement options are available to visa holders issued through the Warrnambool DAMA, particularly for any occupations which are not otherwise available under the TSS Visa program. 

If you are an employer in the Northern Territory or on Victoria’s Great Southern Coast Region and what to know more about the DAMA and how it may assist with your recruitment difficulties, please do not hesitate to contact us directly here or on the details below.

https://melbourne.nevettford.com.au/contact/

 

VETASSESS UPDATE FOR PHD STUDENTS IN AUSTRALIA

 Last week Vetassess announced changes to their skills assessment criteria which will affect many PhD students studying in Australia.

Previously, Vetassess accepted a full scholarship as ‘work experience’ for the purpose of obtaining 1-year work experience for a skills assessment or for work experience points. However, this is due to change from Friday, 15 December 2018. This is a major change and it will affect many PhD students including those who intend to work in careers such as University Lecturers and Scientists. Applications lodged prior to this date will continue to be assessed under the criteria in place at the time of lodgement.

This new change means that any PhD applicants with a full scholarship will soon be required to obtain paid work experience in their field after completing their PhD to meet the criteria for a positive skills assessment.  For many PhD students studying in Australia, the obvious pathway to gain adequate work experience is to apply for a Subclass 485 Visa after completing their studies.  

The 485 visa is for international students who complete 2 years of study in Australia. Depending on the criteria being met the visa will be granted for either 18 months, 2 years, 3 years or 4 years. PhD graduates may be eligible for a 485 Visa for between 18 months and 4 years depending on when you first studied in Australia. The 485 visa is a great option as it offers full work and study rights. You will be working on steps to help kick start your career or gain permanent residence.

Have you recently completed your PhD? Contact one of our Immigration Lawyers or Registered Migration agents for further information on how to apply for your skills assessment and extend your stay in Australia:

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Source: Vetassess December News Letter

Visa Refusal Appeal

 

Visa Refusal Appeal

Have you received a notice of intention to cancel you visa or has your visa been refused? 

Common Visa refusal reasons include:

  • you have not met the conditions of a previous visa

  • you did not provide enough information to prove the claims you made in your application

  • you do not meet Australia’s health or character requirements

  • you gave the wrong information, or made a false claim in your application (bogus documents or misleading information)

  • For student visas, when your preferred course of study is not in line with your previous studies

  • Not showing that you are able to support yourself financially

  • For employer sponsored visas, when the business sponsoring you is not viable or there is no genuine need, the pay is not according to market salary rates and many more.

You have a limited time to respond to a “Natural Justice Letter” so it is important to act quickly and seek professional advice.

CONTACT US FOR MORE INFORMATION AND ADVICE

Nevett Ford Lawyers can assist with all visa refusals and appeals matters at the Administrative Appeals Tribunal (AAT), Federal Court and in relation to Ministerial Intervention cases. 

Please contact one of our experienced Immigration lawyers & Registered Migration Agents for further information.

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

 

ATO Changes mean employers face significant fines for not checking employees’ visas

AUSTRALIAN TAXATION OFFICE (ATO) CHANGES MEAN EMPLOYERS FACE SIGNIFICANT FINES FOR NOT CHECKING EMPLOYEES’ VISAS

Any business who employs foreign citizens and has not been performing ongoing visa checks can now be automatically caught as a result of new data matching between the Australian Taxation Office (ATO) and the Department of Home Affairs (Immigration).

WHAT HAS CHANGED?

In respect to Visa holders, the biggest change for employers is the recording of tax file numbers against Visas, combined with release of the ATO’s ‘Single Touch Payroll’. Since December 2017, the Department of Home Affairs (DHA) has collected tax file numbers from all new visa applicants, enabling simplified data matching between the two departments.

As a result, when an employer submits their payroll / PAYG data to the ATO, the DHA can data match against that and can determine that: a) the employer has not been checking employees’ visas (because the DHA retains a log of every check against a Visa holder), and b) that Visa conditions have been breached.

A COMMON SCENARIO

For example, if the payroll data for a given visa holding employee indicates a salary commensurate with working 60 hours over the fortnight, but the visa holder is restricted to work 40 hours over that period, as is often the case for student visa holders, a breach could be automatically detected.

In the past, detecting a compliance breach typically involved the Department of Home Affairs conducting an audit, which is both time consuming and inefficient. However, with the introduction of ‘One Touch Payroll’, audits can be performed automatically simply through inter-departmental data sharing.

WHAT CAN HAPPEN?

Australian businesses can face fines of up to $315,000 for breaching visa conditions. Company directors can be held personally responsible for non-compliance, even if they are unaware of the specific employee, and can individually face fines of up to $63,000 per illegal worker.

Further, in the scenario listed above where visa conditions were breached, not only would the employer face potentially significant fines, the visa holder would likely have their visa cancelled resulting in deportation for the individual concerned.

EMPLOYER OBLIGATIONS

Where employees are foreign citizens, employers are required to check that employees have the legal right to work in Australia both during on-boarding, and throughout the duration of employment.

CONTACT US FOR MORE INFORMATION AND ADVICE

Nevett Ford Lawyers can assist employers in relation to all visa related matters, including compliance matters.  Please contact one of our experienced Immigration lawyers & Registered Migration Agents for further information.

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

 

Major Partner and Family Visa Legislation Passes Senate

Major Partner and Family Visa Legislation Passes Senate, Awaiting Royal Assent - Impact on Partner/Fiancé Visas Uncertain

New partner and family visa legislation has passed and is awaiting royal assent to become law.

The Migration Amendment (Family Violence and Other Measures) Bill 2016 passed in the Senate on 28 November and is awaiting royal assent. As of press time, the final version of the bill is not yet available, which may contain various amendments that were proposed for the Bill. Without knowing the specific content of the final Bill, it is not possible to accurately predict the effect of the new legislation.

Even once the final Bill's content is known, the specific impact of the bill on visa applicants will likely not be known until the applicable changes to regulations and policy are made. It is not known at the moment how far along the process of updating regulations and policy may be, adding an additional layer of questions and uncertainty to the current situation for migration practitioners.

Of specific concern to many migration practitioners is the anticipated change that the sponsor part of partner and fiancé visa application may have to be lodged and approved prior to visa applicants making their application. The effect on those intending to lodge partner visas while onshore in Australia, especially those on visas with a relatively short validity period such as visitor visas, is processing of the sponsor application may take longer than an intending visa applicant may have onshore to apply for a visa. Delays in the ability of onshore visa applicants to apply for partner visas could result in a spike in the incidence of Schedule 3 issues for onshore partner visa applicants if they delay lodging their visa application until they are unlawful or only hold a bridging visa from some other type of onshore application.

Of additional concern is the genuine temporary entrant status for visitors who have already been named in a lodged partner/fiancé visa sponsorship application - that application would seemingly establish that the visa applicant had an intention to remain in Australia on a permanent basis rather than being a temporary visitor. The effect re genuine visitor / genuine temporary entrant criteria on new visitor visa applications and new airport entries for visitor visa holders who have been named in a partner or fiancé sponsor application but have not yet been able to lodge their own visa applications onshore has generated significant concern from the industry since the anticipated changes were announced 2 years ago.

The Bill also intended to create additional obligations on current and future partner/fiancé visa sponsors, and impose sanctions on family visa sponsors if those obligations are not met.

Nevett Ford Lawyers can assist with all Partner visa applications.  Contact us today for more information. 

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Source: Immigration Law News 2 December 2018

Retirement Visa Holders

Good News for Retirement Visa Holders

As a result of amendments to the migration regulations which came into effect from 17 November 2018, certain holders or former holders of subclass 405 (investor retirement) Visa or subclass 410 (retirement) visas may now apply for permanent residence through either the subclass 103 (Parent) Visa or a subclass 143 (Contributory Parent) Visa, without the need to demonstrate that they are the parents of Australian citizens or permanent residents.

To be eligible, applicants must have held either a subclass 405 or subclass 410 Visa on 8 May 2018, or not have held any substantive visa on that date and the last substantive visa held prior to that date was one of those visas. Applicants must be in Australia to apply.

 It is important to be aware of the distinction between the two visa pathways which are now available. The Contributory Parent Visa (S/C 143) carries with it a substantial Visa Application Charge (VAC) which must be paid before the Visa is granted. Processing can generally take between two and three years. At the moment the VAC is $43,600 for a single applicant.

The Parent Visa (S/C 103) on the other hand has a much lower charge at time of approval, currently $2065. However, the disadvantage with this visa is that the number of visa grants in any one year is capped or limited by the government – usually around no more than 1500 places per year, and because of this there is a tremendous backlog of applications waiting to be processed, meaning that applications may take many years before they are finalised. For persons wishing to transfer from the retirement visa this is not necessarily a problem because they will be entitled to remain in Australia on a bridging visa until such time as their Parent visa application is dealt with.

Irrespective of which pathway is taken it will be necessary for applicants to maintain health insurance until the permanent Visa is granted and meet the relevant health, character and other public interest criteria for the grant of the permanent Visa.

U.S. Diversity (Green Card) Lottery for 2020 is Now Open

Are you in the U.S. on an E-3 and would like to get a green card?  One way to get permanent residency is to enter the U.S. Diversity Lottery and maybe you will be selected as a lucky winner in the next year! 

You will have to be quick, as the applications are now open and only available until the beginning of November.  With the current political climate in the U.S, we do not know if the program will continue in the future, so if you have any desire to make your stay a permanent one, we highly recommend entering the lottery this year. 

The Diversity Visa Lottery is an application submitted annually for residency visas available for certain countries based on the country of birth.  A total of 50,000 green cards are available in this lottery.  For Australians and New Zealanders, the chance of success is the highest in the world, between 3 – 8%.  The application is initially free and you are allowed to apply every year if you like.  Contrary to popular belief, you may apply for the diversity lottery even if you currently are in the U.S. on an E-3 visa or are seeking other residency or visa options.

While the chances may seem slim, we have had quite a few clients who have been successful in the past couple of years. The deadline for submissions this year is Tuesday, November 6, 2018 at 12:00PM EST in the U.S. (GMT -5).

Online registration for the 2020 Diversity Lottery is now open and can be found at the US Department of State’s webpage at: https://www.dvlottery.state.gov/(S(ghqzrgpbjp3ezlok1sgcfnr1))/default.aspxT  Remember that there is no cost for the initial application, so if you find yourself on a website that requires payment, that would not be an official government application.

Please feel free to contact us for further questions or to set up a consultation to review your U.S. visa options. 

Nevett Ford on the ABC about the US Green Card Lottery

Melissa Vincenty was recently interviewed on the ABC about the US Green Card Lottery. A blog will be posted shortly about the Lottery but in the mean time listen the the audio clip for further information.

AUSTRALIAN PARTNER VISAS

If you are married to, in a committed (de facto) relationship with or the fiancé of an Australian citizen or permanent resident, you may be able to obtain an Australian Partner Visa.   

Due to the complex nature of Partner visa applications, and the high number of visa refusals each year, legal advice and assistance is highly recommended to ensure that you can remain in, or come to Australia, to live with your Australian spouse / partner.

Applying for a Partner Visa is far from simple and being in a genuine and committed relationship doesn’t always mean that your application will be approved. The problem often lies with self-lodged applications which fall short of the required standard.

  • A large portion of self-lodged applications are refused,

  • The Department of Home Affairs (DHA) are increasing its scrutiny of visa applications,

  • Partner Visa rules are strict and many complexities can arise,

  • Not requesting professional assistance in the first instance means that applications are often not up to the required standard and may therefore be refused or substantially delayed.

It costs much more to ‘fix’ a Partner Visa refusal because:

  • The DHA Partner Visa application fee is $AUD7,098.00,

  • If the application has been refused, fixing the issue usually requires an Administrative Appeals Tribunal (AAT) appeal application or a new application – a costly, time-consuming and difficult process,

  • The right to work, access Australian healthcare, seek citizenship and suchlike are all delayed during the time waiting for visa approval

Common reasons why Partner visa applications are refused:

  1. Lack of evidence of relationship between the applicant and the sponsor

  2. Inconsistency in information and/or evidence provided to the Department

  3. The sponsor has already sponsored 2 partners on a Partner visa or has sponsored a partner within 5 years before the new Partner visa application

  4. Inability to show the required level of commitment to each other due to significant linguistic, age, cultural and social differences between the parties

  5. Inability to respond adequately at the interview

We will guide you through the whole application process. We have helped thousands of people gain temporary and permanent residency under the Partner visa stream.  A small mistake could ruin your application and that is why legal advice and assistance with the process is highly recommended.  We will ensure that all documents supplied to the Department of Home Affairs (DHA) are correct, complete and assessed prior to lodgment to ensure that you get the visa.

AUSTRALIAN PARTNER VISAS TYPES:

1.    Subclass 820 / 801 Partner Visa is for visa applicants who are married or in a de facto relationship and who are onshore (in Australia) when they lodge their application.  The right to work and access to healthcare is automatic in respect of onshore applications.

2.    Subclass 309 / 100 Partner Visa is for visa applicants who are married or in a de facto relationship and who are offshore (outside Australia) when they lodge their application.

3.    Subclass 300 Prospective Marriage Visa (also known as the Fiancé visa) is for visa applicants who are engaged and they have physically met their Australian partner in person.  The visa applicant must be offshore (outside Australia) when they apply for this visa.

4.    Subclass 461 New Zealand Family Relationship (Temporary) Visa is for the partner of an eligible New Zealand citizen.

5.    Same-sex relationships Australia accepts same sex relationships for Partner visa purposes (see more detail below).

All applicants for a Partner Visa must have an Australian sponsor who is an Australian citizen, permanent resident or eligible New Zealand citizen. Your sponsor must provide a written statement pledging to support you for your first 2 years in Australia, including accommodation and financial assistance to meet reasonable living needs.

Your relationship with your partner will be assessed as part of the application process. Additionally, applications are assessed against Australian health and character requirements.

Married Partners

To apply for a Partner Visa on the basis of your marriage, you must be legally married to your partner. If you were married in a country other than Australia, your marriage will generally be recognised as valid under Australian law. In order to be eligible for a Partner Visa, on the basis of your marriage, you have to:

  • be sponsored by an eligible person

  • be legally married to your partner (who is usually your sponsor)

  • show that you and your partner have a mutual commitment to a shared life as husband and wife to the exclusion of all others

  • show that you have a genuine and continuing relationship with your partner

  • show that you and your partner are living together or, if not, that any separation is only temporary

  • meet health and character requirements.

De Facto or 'Common Law' Spouse

If you are applying for a Partner Visa as a de facto spouse, you and your partner generally must have been in a de facto relationship for the 12 months immediately prior to lodging your application.  If you have not been in a de facto relationship for 12 months prior to application you may still be able to lodge an application if you have legally registered your de facto relationship according to the relevant State / Territory requirements where you live.  You must:

  • be sponsored by an eligible person

  • show that you and your partner have a mutual commitment to a shared life to the exclusion of all others

  • show that you have a genuine and continuing relationship with your partner

  • show that you and your partner have been in a de facto relationship for the entire 12 months immediately prior to lodging your application or that you have legally registered your de facto relationship

  • show that you and your partner are living together or (and if not, that any separation is only temporary)

  • meet health and character requirements.

Same Sex Couples

The Partner Visa also allows same sex partner migration to Australia on the basis of being married or being in a de facto relationship (as above).

Prospective Marriage (Fiancé) Subclass 300 Visa

A Prospective Marriage Visa is a temporary visa that is valid for 9 months. You must enter Australia as a fiancé and marry your sponsor within the period the visa is valid and then submit an application for a Subclass 802/801 Partner visa.

New Zealand Family Relationship (Temporary) Subclass 461 Visa

You could be granted a 461 visa if:

  • Your sponsor is a New Zealand citizen

  • You and your partner are married or can prove you have lived together for over 6 months

This visa does not lead to permanent residence. The subclass 461 visa is for a temporary stay in Australia and to apply for permanent residence you will need to take a different route. The 461 visa will grant you 5 years’ temporary residence in Australia and can be renewed once this period comes to an end.

APPLICATION PROCESS

Applying for a Partner Visa is a 2-stage process. You apply for both a temporary and permanent visa in the one application at the same time.

Temporary Partner Visa

If you lodge your application outside Australia, you must be outside Australia when the temporary visa is granted.

If you are granted a temporary visa, you will:

  • Have permission to travel to and from Australia until a decision is made on your permanent visa application; and

  • Be able to work in Australia.

Permanent Partner Visa

If you lodge your partner application outside Australia, you may be either in or outside Australia when the permanent visa is granted.

In most cases, permanent residence cannot be granted less than 2 years from when you lodge your temporary partner visa application. However, you may be granted a permanent visa without having to fulfil the usual 2 year waiting period if at the time you apply you meet certain criteria, as follows:

  • You have been in a relationship with your partner for 5 years or more (as a married or de facto partner); or

  • You and your partner have been in a married or de facto relationship for 2 years and have children.

PARTNER VISA REFUSALS

If you have had your Partner visa refused we can assist.  If your partner visa application has been refused, you often need to decide whether to appeal, or to apply again.

When an application for a Partner Visa is refused, the applicant can appeal the decision to the Administrative Appeals Tribunal (AAT).

An AAT Tribunal member will look at your partner visa application again.  They make a new decision about the factor your application was refused on. The Tribunal may agree with the refusal decision of the immigration department.  Alternatively, they may disagree with the refusal decision, change the decision, and send your application back to the department for further processing.

However, if you lodged an offshore partner visa application and it was refused you could apply again from offshore.

The best option needs careful consideration and we can help as we are immigration lawyers with many years of experience in this field.

Potential Australian Citizenship changes

The Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 is set to make a comeback. The Bill has been assigned a ‘‘priority status’ by previous Home Affairs Minister Peter Dutton’s department and will be introduced to the Parliament.

The initial proposed changes were scheduled on 20 April 2017 and to have them take effect on the same date. A Bill was required to be drafted and passed for the proposed changes via Parliament; however this fell through on 18 October 2017 as the Government missed the deadline in the Senate.

However, this hasn’t put a stop on the proposed changes as the Government is still keen to implement and have these changes finally introduced into Australian law.

The proposed changes will require the applicant to meet the following criteria:

  • Have lived in Australia as an Australian permanent resident for at least 4 years

  • Pass an English language test. The recommended pass level for Australian citizenship was Competent English which is an overall score of 6 in IELTS. (Other test may be accepted)

  • Pass a new citizenship test. This will be a `strengthened' version of the current test and is designed to assess the applicant's understanding of, and commitment to, Australian values

  • Complete the citizenship test only once. This means applicants must pass the higher level test on the first attempt

  • Prove their integration and contribution to the Australian community

If the above come into effect, the process to acquire Australian citizenship will become longer and more difficult for applicants.

If you meet the current Australian citizenship requirements, we strongly encourage you to consider lodging your application soon to avoid any necessary changes.

Contact one of our Immigration Lawyers/Agents to discuss your eligibility to apply for Australia citizenship or ant visa related matters.

Telephone: +61 3 9614 7111

Email: Melbourne@nevettford.com.au

Skilling Australians Fund (training levy) – Refund Provisions

The Skilling Australians Fund (SAF) commenced on 12 August 2018 and is now in effect. Businesses are now required to pay a 'Nomination Training Contribution Charge' (NTCC) into the SAF for each visa holder sponsored on a:

  • Subclass 482 Visa (Temporary Skills Shortage - TSS)

  • Subclass 186 Visa (Employer Nomination Scheme - ENS)

  • Subclass 187 Visa (Regional Skilled Migration Scheme - RSMS) 

SAF Refund Provisions

A refund will be available: 

  • If the sponsorship and visa is approved but the visa holder does not commence employment in their nominated position

  • If the sponsorship and nomination is approved but the associated visa is refused due to health or character issues

  • If a TSS Subclass 482 Visa holder leaves the employer within 12 months of employment and the agreed visa period was for more than 12 months

    • A part refund will be available for unused full years of the agreed visa period

    • This does not apply to ENS Subclass 186 or RSMS Subclass 187 visa holders who leave their employer within 12 months of employment

  • In cases where a refund of the nomination fee applies, for example:

    • If a Standard Business Sponsorship (SBS) application is refused  

  • In cases of error, for example: 

    • Department of Home Affairs approved a nomination in error

    • Nominations withdrawn prior to approval due to miscalculated amounts

    • Wrong occupation or visa stream is identified 

For more information, advice or assistance please contact Nevett Ford Immigration Lawyers

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Accredited Sponsorship: 482 / TSS visas

Accredited Sponsorship status is granted to those larger Australian employers that possess a significant, regular and ongoing need for visa sponsorship. Applications lodged by Accredited Sponsors receive preferential treatment by the immigration department resulting in faster turn-around times.

Another benefit given to accredited sponsors is a longer Standard Business Sponsorship duration, with approvals being given for 6 years compared to the standard 5 years. In addition to priority processing of nomination and visa applications, sponsors approved with accredited status will also be eligible for streamlined processing of nominations in some instances, including most ANZSCO level 1 and 2 occupations where the base salary will be greater than $75,000.

REQUIREMENTS:

The current requirements for accredited sponsor status are:

  1. be a government agency, a publicly-listed company or a private company with at least AUD four million annual turnover for the last three years;

  2. have been an active 457/TSS visa sponsor for at least three years (with no more than a 6 month break in the past 36 months), with no adverse information (based on monitoring, including formal warnings and sanctions);

  3. have sponsored at least 10 primary  482 (TSS) visa holders in the 24 months prior to the application for accreditation;

  4. have lodged an agreed level of “decision-ready” applications over the previous two years;

  5. have a non-approval rate of less than 3% for the previous three years;

  6. have Australian workers comprising at least 75% of their workforce in Australia

  7. Accredited sponsorship may be available to businesses who do not meet all of the above requirements in limited circumstances

BENEFITS:

  1. Accredited sponsors receive streamlined processing on all 482 visa applications, reducing the processing time from months to days in some cases

  2. The labour market testing requirements are more relaxed for accredited sponsors, with these businesses permitted to utilise advertisements placed on their own website, rather than through national recruitment websites

  3. Applicants for 482 visas on the basis of sponsorship by an accredited sponsor do not need to provide police clearance certificates for every country in which they have resided provided the business can attest to their good character, again significantly reducing processing times

WHO CAN APPLY FOR ACCREDITATION?

In order to qualify for Accredited Status, a sponsor must meet all the requirements for Standard Business Sponsorship and meet all of the following additional characteristics of one of the four categories:

Category 1: Commonwealth, state and territory government agencies

  • Have Australian workers comprising at least 75% of their workforce in Australia

Category 2: Australian Trusted Traders

  • Have Australian workers comprising at least 75% of their workforce in Australia

  • Engage all 457 and TSS Visa holders as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (unless their occupation is exempt from this requirement)

  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business

Category 3: Low volume usage (of the 457 and 482 programmes) and high percentage of Australian workers (at least 90%)

  • Be a publicly-listed company or a private company with at least AUD four million annual turnover for the last two years

  • Have been an active 457/TSS sponsor for at least two years

  • Have no adverse monitoring outcomes

  • Have sponsored at least one (1) primary 457/TSS visa holder in the two years prior to the application for accreditation

  • Have a non-approval rate of less than 3% for the previous two years

  • Have Australian workers comprising at least 90% of their workforce in Australia;

  • Engage all 457/TSS holders as employees under a written contract of employment that includes at least the minimum employment entitlements as required under the National Employment Standards (unless their occupation is exempt from this requirement)

  • Have all Australian employees paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business

  • Have provided details of all business activities undertaken by their business to the department

  • Have provided details of all Principals / Directors of their business to the department

Category 4: High volume usage (of the 457 or 482 (TSS) programmes) and medium percentage of Australian workers (at least 75%)

Characteristics are the same as Category 3 with two differences:

  • Have sponsored at least ten (10) primary 457/TSS visa holders in the two years prior to the application for accreditation

  • Have Australian workers comprising at least 75% of their workforce in Australia

Note: The Department may approve accreditation for start-up businesses that do not meet these requirements, in limited circumstances (e.g. part of a government entrepreneurship program/award winner). These will be assessed on a case-by-case basis. For migration purposes, a start-up business is a business that has been operating in Australia for less than 12 months.

For more information, advice or assistance please contact Nevett Ford Immigration Lawyers

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Employer sponsored/nominated visas & recovery of visa application costs

It is important for employers and employer sponsored employees to be aware of the migration regulations in relation to recovery of costs associated with the visa application. This blog outlines information that both parties should be aware of.

Migration Regulation 2.87: Obligation not to recover, transfer or take actions that would result in another person paying for certain costs

Approved standard business sponsors (e.g. subclass 457 and subclass 482) are required to meet sponsorship obligations. A business sponsor is responsible for meeting the sponsorship obligations, even if the business has authorised someone else to act on their behalf, including a migration agent/lawyer. One such obligation is to not recover, transfer or charge certain costs to another person.

There is often confusion about what costs can be paid by a sponsor up front and recovered later, or made subject to a clawback agreement.

The following points are relevant to note:

457 / 482 TSS SPONSORSHIP (TEMPORARY RESIDENCY)

  1. Nomination or Sponsorship application costs are not able to be recovered from a visa applicant;

  2. The Skilling Australians Fund (SAF) training levy is not recoverable from a visa applicant;

  3. Migration Agent professional fees related to lodgement of a Sponsorship or Nomination application are not recoverable from the visa applicant.

  4. Visa application Government and Migration Agent costs can be paid up front by a visa applicant;

  5. Visa application Government and Migration Agent costs paid up front by a sponsor are able to be made subject to recovery or a claw back arrangement in some circumstances.

186/187 EMPLOYER NOMINATED PERMANENT RESIDENCY

  1. Nomination application fees can be paid upfront either by the business or by the visa applicant;

  2. Migration Agent professional fees related to lodgement of a nomination can be paid upfront by either the business or the visa applicant;

  3. Visa application fees can be paid upfront either by the business or by the visa applicant;

  4. Migration Agent professional fees related to lodgement of a visa can be paid upfront by either the business or the visa applicant;

  5. If costs are paid by the business, a clawback provision is permissible whereby the applicant can reimburse the business for costs relating to the nomination and visa;

  6. The SAF training levy is payable by the business only and cannot be recovered from a visa applicant.

For more information, advice or assistance please contact Nevett Ford Immigration Lawyers

Telephone: +61 3 9614 7111

Email: melbourne@nevettford.com.au

Refund provisions for the Skilling Australians Fund

The Skilling Australians Fund (SAF) Levy commenced on 12 August 2018 with all employers nominating an overseas national for employment required to pay this levy at the time the nomination is lodged.  This includes employers submitting nominations under the following visa programs:

 
  •          Temporary Skilled Shortages Visa Program (subclass 482 visas);
  •          Employer Nomination Scheme (Subclass 186 Visas);
  •          Regional Skilled Migration Program (Subclass 187 visas); and
  •          Labour Agreements (482 visas, 186 visas and 187 visas).

SAF Levy Calculation

As previously reported, the precise amount of the levy which is due is determined by references to the size (turnover) of the organisation nominating the overseas national.   Organisations are categorised as either small or large organisations depending on whether their turnover is below or above $10 Million. 

The details of the levy payable can be viewed at Table one. 

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

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Refund Provisions

The commencement of the SAF levy also saw the announcement of refund provisions available to employers in certain circumstances.  In particular refunds of the SAF levy will be available in the following situations:

 
  • The nomination and visa application are approved, but the overseas skilled worker (visa holder) does not arrive or does not commence employment with the organisation;
  • The nomination is approved but the visa application is refused on health or character grounds;
  • A TSS visa holder leaves the sponsoring employer within the first 12 months of employment.  In this situation, the visa must have been approved for more than 12 months and refunds are only available for the unused years of the SAF levy (i.e. Years 2 – 4 as applicable). 
  • The nomination fee is refunded.  This would ordinarily apply if the sponsorship application is refused.

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 or by email melbourne@nevettford.com.au

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

MAXIMUM AGE

30

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