NEWS Skilled Visa E-news January 2018

January E-news

​January E-news

​Welcome

This edition of the Skilled Visa E-News provides further clarification and advice on the recent policy reforms, as well as some upcoming changes to skilled visa programs.

Skilled occupation list updates

A six-monthly review cycle of the occupation lists was established by the Australian Government in April 2017 to ensure that the skilled occupations lists appropriately reflect genuine needs in the Australian labour market, and align with the Government's policy that Australian workers have priority.

Updates to the occupation lists for temporary and permanent skilled visas will come into effect on or about 17 January 2018. This update is based on the review conducted by the Department of Jobs and Small Business (DJSB) in late 2017, which is now complete. This review was informed by labour market modelling and analysis, and feedback from employer and employee groups, and other government agencies.

The Department of Home Affairs has recently re-structured its occupation list web page to make it easier for clients to determine which occupations are eligible for particular skilled visa programs. This page will be updated again once the new skilled occupation lists come into in effect to reflect the changes. A summary of the changes will, however, be made available prior to this date.

Note:

  • The new occupation list instruments, which come into effect, will not be applied to pipeline applications. This includes the new instrument that relates to the Temporary Work (Skilled) visa (subclass 457) program.
  • The next occupation list instruments will be published in March 2018 for the Employer Nomination Scheme visa (subclass 186), the Regional Skilled Migration Scheme (RSMS) visa (subclass 187) and the Temporary Skill Shortage (TSS) visa consistent with the broader legislative changes being implemented at this time.
  • To align the Training (subclass 407) visa with other visa programs, a number of occupations which were previously not eligible for this visa will be available when the instrument comes into effect.

Same-sex marriage

As per information on the Department's webpage Changes for visa applicants in same-sex relationships, effective 9 December 2017, clients who are in a same-sex marriage can apply for a visa as their partner's 'spouse', rather than as their 'de facto partner'. Any impacted Procedural Instructions (PI) and web content will be updated by the Department.

457 update

Reminder regarding new approach to incomplete applications

Registered Migration Agents (RMAs) are reminded that as per advice emailed to them on 22 December 2017, the subclass 457 processing network is implementing a revised approach regarding managing incomplete applications to reduce processing times for complete applications. These new arrangements will commence on 15 January 2018 and will involve refusing applications assessed as not meeting a legislative requirement at the initial assessment stage (other than 'genuineness'), due to a lack of required supporting evidence, where:

  • no natural justice obligations apply and
  • more than two calendar days have passed since the application was lodged.

It will not include certain cases, for example where:

  • health and character documentation is still pending
  • a related application that must be finalised first remains pending (e.g. it is a nomination application and there is a pending sponsorship application)
  • a reasonable and satisfactory explanation is attached to the application in ImmiAccount outlining reasons for incompleteness by an applicant (or agent on their behalf), who does not have a history of lodging incomplete applications.

Singapore-Australia Free Trade Agreement (SAFTA)

On 1 December 2017, the agreement to amend the SAFTA came into force. The amended agreement provides that sponsors are exempt from Labour Market Testing (LMT) if the person identified in the nomination application is a citizen/national/permanent resident of Singapore and the sponsor provides information to this effect as part of the nomination application. This brings Singaporean nationals in line with other Free Trade Agreement citizens/nationals/permanent residents of Chile, South Korea and New Zealand.

The 457 Nominations PI was updated on 1 January 2018 to reflect this amendment. The Department's website has also been updated to reflect this change. More information on the SAFTA is available at the Department of Foreign Affairs and Trade website.

Permanent visa update

Early lodgement of Significant Investor stream applications

As the first Business Innovation and Investment (Provisional) (subclass 188) visas were granted in early 2013, the Department is now beginning to receive second-stage Business Innovation and Investment (Permanent) visa (subclass 888) - Significant Investor stream (SIV) applications.

 

A large number of applicants are, however, lodging their visas too early. The likely outcome of these early lodgements is that these subclass 888 visa applications run the risk of not meeting the relevant criteria for grant. RMAs are reminded that individuals who applied for their provisional visa subclass 188 SIV stream:

  • prior to 1 July 2015 are eligible to apply for a subclass 888 visa after holding their provisional subclass 188 visa for 3 years and 11 months
  • on or after 1 July 2015 are required to hold their subclass 188 SIV for at least 4 years prior to applying for a subclass 888 visa.

Character related matters

Certificates for employment purposes (example: fit2work)

RMAs are reminded that where applicants have spent more than 12 months in Australia within the last 10 years they must provide an Australian Federal Police (AFP) certificate. Under policy, AFP certificates are valid for 12 months from the date of original issue and can be used for multiple visa applications unless there are character concerns (in which case it is up to the discretion of the officer to request a new AFP certificate). The Department will only accept certificates from the AFP and will not accept certificates from other organisations conducting police checks for the purposes of employment.

Overseas State Police Clearances

When determining which police clearances are required, please pay close attention to whether a state police clearance may also need to be obtained for the relevant country. For example, for citizens and permanent residents of the United States of America (USA) the requirement is an 'FBI Identity History Summary' issued by the FBI or an approved channeler and a State Police Clearance for each State in which the applicant has lived for at least 3 months for the last 12 months. This also applies to other countries, such as Brazil. Delays to processing will occur unless all relevant police clearances are provided at time of application - see: Good character and offences

Colour vs. black and white clearances

Original certificates issued in black and white by the relevant overseas authorities are acceptable for immigration purposes. For example, this is usually the case with 'FBI Identity History Summary' from USA channelers which are provided electronically in black and white.

Original clearances, however, which are provided in:

  • colour; or
  • black and white

which have been subsequently copied/scanned in black and white will not be acceptable because various image specifications (which assist in determining the veracity of a certificate) are removed. Such police clearances must always be copied/scanned in either colour or grey scale to determine the authenticity of a document.

Identified agent issues

Change passport or address details online

RMAs are reminded to use ImmiAccount where possible to change contact or passport details. Visit www.homeaffairs.gov.au/immiaccount and select 'Update us'. Update address and passport details as required and you will receive instant confirmation of the change. If you cannot update your details online through ImmiAccount, download Form 929 – Change of address and/or passport details (145KB PDF) and email the completed form to 929@homeaffairs.gov.au.

Subclass 457 – Does Not Meet for an incorrect period of stay

For Does Not Meet health cases, agents are reminded to check the period of stay assessed by a Medical Officer of the Commonwealth (MOC) before responding to the s57 Natural Justice letter. If you believe that the period of stay assessed by the MOC is incorrect, please contact 457@homeaffairs.gov.au in the first instance.

Labour agreements

List of current labour agreements

The list of current labour agreements has recently been updated on the Department's website for the period up to 1 January 2018. The next update is expected to occur early April 2018.

Labour agreement changes for March 2018

The Department continues to progress changes to existing labour agreement templates to cater for the Temporary Skill Shortage (TSS) program - including:

  • revised agreements have now been sent out to fishing industry labour agreement holders for signature and will be sent out to existing company specific labour agreement holders shortly
  • feedback from existing on-hire labour agreement holders will be sought by mid-January 2018 to facilitate revised agreements being signed by mid-February 2018
  • remaining labour agreement sponsors will be contacted between late January and mid-February to sign new agreements where required in order to facilitate further nomination applications being lodged where approved ceilings remain available.

Note: further discussions are planned with representatives from the dairy, snow, hospitality and meat industries regarding their labour agreement templates. Interim amendments will, however, be made to existing agreements in the meantime to avoid any negative impacts on businesses as a result of the March 2018 changes - given the short time frames available.

Sponsorship obligations

Notification of sponsor changes

Sponsors must notify the Department if specific sponsorship changes occur in line with regulation 2.84 (obligation to provide information to immigration when certain events occur). Going forward, system enhancements will allow sponsors to notify the Department of some changes directly via their ImmiAccount. Further information regarding this will soon be available on our website.

February 2018 changes

We advised in the previous newsletter that subject to legislation passing, additional changes to the subclass 457 visa program were planned for implementation before 31 December 2017. This included the publication of details relating to sponsors who are sanctioned for breaching their obligations, the collection of tax file numbers to facilitate data matching with the Australian Taxation Office, and clarification of review rights. These changes are now expected to occur towards the end of Feb or early March 2018 – watch this space!

Temporary Skill Shortage (TSS) visa update

TSS is coming

Agents are reminded that the Government is introducing the TSS visa in early March 2018 to ensure businesses can access the critical skills they need to grow, where no skilled Australian worker is available. There will be three options available under this new visa program:

  • Short-term stream – this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL)1 for a maximum of two years (or up to four years if an international trade obligation applies)
  • Medium-term stream – this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL)*1 for up to four years, with eligibility to apply for permanent residence after three years
  • Labour Agreement stream – this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.

1Employers in regional Australia will have access to a broader range of occupations when the TSS visa is introduced.

At the time of lodging a TSS nomination application, employers will need to select an employment period of up to:

  • 1 year or 2 years for the short-term stream (unless an international trade obligation applies); and
  • 1 year, 2 years, 3 years or 4 years for the medium-term or labour agreements stream.

Further communications initiatives are being considered for February and March 2018 to help agents familiarise themselves with these new visa arrangements. In the meantime, this newsletter will be used to start to familiarise agents with key new requirements and transitional arrangements – see below!

Streamlining initiatives

The TSS visa is part of the Government's reform agenda to strengthen the integrity and quality of Australia's temporary and permanent employer sponsored skilled migration programs. This is, however, an important opportunity to introduce a number of initiatives to help streamline processing of temporary skilled work visas and contribute to reduced processing times, particularly for lower risk applications.

A number of initiatives are planned in this space which will help the TSS visa support business to fill skill shortages. They include:

  • a new standard five year sponsorship agreement period (including for start-ups)
  • implementing auto-approval of complete streamlined lower-risk nomination applications lodged by accredited sponsors2
  • a new streamlined 'renewal process' for existing sponsors – that is, a shorter application form to fill out and possible auto-approval of such sponsorship applications
  • new online forms for the new TSS visa
  • a complete review of correspondence to ensure that TSS correspondence templates are easier to use and understand.

2Note: it is even more important that agents make their clients aware of the option to become accredited sponsors so that they can gain access to these benefits from March 2018 onwards, as well as the existing benefits of priority processing and streamlined processing arrangements. Currently, subclass 457 nomination applications lodged by accredited sponsors are already generally processed in less than five days.

Understanding the transition from subclass 457 to TSS

Employers who are already approved standard business sponsors for subclass 457 will be able to sponsor skilled overseas workers under the TSS visa program. It is, however, important that agents understand transitional arrangements that are expected to be in place for nomination and visa applications so that they can plan accordingly with their clients and not wait until the last minute to lodge applications.

Subject to final approval of transitional arrangements, it is expected that:

  • if subclass 457 nomination and visa applications are both lodged prior to TSS implementation, they will be processed under the current framework.
  • if a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will, however, effectively become 'redundant' as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved (subject to the specific scenarios below).

Arrangements will be put in place to ensure that such 'redundant applications' can be finalised and/or withdrawn with a refund of the fee provided. To avoid delays or unnecessary additional processing steps, RMAs are, however, strongly encouraged to:

  • lodge complete subclass 457 nomination and visa applications together before the end of February, or
  • postpone lodgement until commencement of TSS.

Note:

  • Secondary visa applicants (of 457 visa holders or pending 457 visa applicants) will be able to lodge a subsequent dependent TSS application and if they meet requirements, will be granted a TSS visa linked to their family's subclass 457 visa/nomination application. The validity period of the TSS visa will match the expiry date of the subclass 457 primary visa holder.
  • Subclass 457 visa holders whose visa is not expiring but wish to change employer after the implementation of TSS, can get their new employer to lodge a TSS nomination application to facilitate this as per current arrangements.
  • Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity), they will, however, need to lodge a new TSS visa application referencing a new TSS nomination application.

Labour Market Testing (LMT) for TSS

Consistent with previous Government announcements, more robust LMT arrangements will be in place for TSS – with occupation exemptions to LMT no longer available. This is to ensure that employers try to find a suitably qualified Australians before they can seek to employ an overseas skilled worker on a TSS visa.

We understand that employers would like as much notice of these new arrangements as possible to ensure that they can amend their business practices where required 'in advance'. It is not, however, expected that employers will have problems meeting these new requirements given that:

  • sponsors are already expected to test the local labour market before utilising the subclass 457 program (except where international trade obligations apply) and
  • the requirements will be able to be met by employers who advertise key job details, in English, via a channel that has sufficient coverage (for example: national recruitment website such as jobactive.gov.au, national print media).

More details will be provided in the February newsletter.

Salary and conditions arrangement for TSS

As per current arrangements, sponsors seeking to employ an overseas worker at a salary of under AUD250,000 will need to provide additional information to demonstrate that they are going to pay the market salary rate to ensure that overseas workers are protected and the local labour market is not undercut.

Changes to some salary and conditions provisions are, however, planned to:

  • clarify provisions in this complicated area, with feedback received that terms such as 'base rate of pay' and 'guaranteed annual earnings' are misunderstood
  • ensure that salary arrangements more adequately reflect the different payment arrangements in place for different industries
  • ensure that overseas workers are protected and that market salary rate information cannot be inflated by unscrupulous employers, and
  • ensure that sponsors understand that they must comply with Australian employment laws as well as immigration requirements.

More details will be provided in the February newsletter.

Permanent skilled changes for March 2018

What is changing?

As previously communicated, the Employer Nomination Scheme (ENS) visa (Subclass186) and the Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) programs will also be impacted by the March 2018 changes. The main changes, as outlined in Fact sheet two: Reforms to Australia's permanent employer sponsored skilled migration programme (598KB PDF) are as follows:

  • the nominee's occupation will need to be on the Medium and Long-term Strategic Skills List (MLTSSL) unless:
    • their employer is in a regional area, in which case additional occupations will be available for selection (more details to come in February), as well as occupations on the MLTSSL; or
    • the transitional arrangements outlined below apply.
  • TSS salary and condition provisions will apply, with employers required to pay the Australian market salary rate and meet Temporary Skilled Migration Income Threshold (TSMIT) requirements
  • the eligibility period for the Temporary Residence Transition (TRT) stream will be extended from two to three years
  • at least three years' work experience relevant to the particular occupation will be required
  • subject to any age exemptions, all applicants must be under the maximum age requirement of 45 at the time of application, unless the transitional arrangements outlined below apply, and
  • sponsors will be required to pay a contribution to the Skilling Australians Fund (SAF) at nomination stage.

More details will be provided in the February newsletter.

Transitional arrangements - subclass 457 visa holders and applicants applying for permanent residence after March 2018

Advice regarding the impact of recent reforms on subclass 457 visa holders and applicants who wish to apply for permanent residence remains available on the Department's website at: Impacts for existing 457 visa holders wishing to apply for permanent residence.

These arrangements remain subject to final approval. A summary table has, however, been provided below to assist agents to determine which options may remain available to their clients.

Note: These transitional arrangements are relevant for TRT stream applications only. No transitional arrangements are in place for Direct Entry (DE) stream applicants who are expected to meet the requirements in place at time of application. New requirements will not be applied to pipeline applications.

Client Cohort TRT requirements expected to apply

Client held a subclass 457 visa on 18 April 2017 and continues to hold this visa or a TSS visa/related bridging visa at time of application

or

Client lodged a subclass 457 visa application on or before 18 April 2017 which was subsequently granted and continues to hold this visa or a TSS visa/related bridging visa at time of application.

New requirements apply subject to the transitional provisions outlined below:

  • occupation list requirements will not apply;
  • the age requirement will remain at less than 50 years of age with existing age exemptions still available; and
  • the minimum period an applicant is required to have been employed in their nominated occupation as the holder of a subclass 457 or TSS visa will remain at two years.
All other applicants.New requirements apply.

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