NEWS Skilled Visa E-news August 2018

Skilled Visa E-news August 2018


This edition of the Skilled Visas E-news is focussed on upcoming changes to the skilled visa programs for the second half of 2018.

This includes the 1 July 2018 implementation of:

  • the Global Talent Scheme (GTS) pilot launch
  • changes to the online skilled application forms
  • a new pass mark for the skilled migration points test.

The changes are consistent with the Government's announcement of 18 April 2017.

The Department of Home Affairs is also in the final stages of preparing for implementation of Skilling Australians Fund (SAF) changes in this quarter of 2018, with the exact implementation date impacted by legislative and systems release processes and timeframes.

We will continue to use this newsletter to share more detailed information with registered migration agents when available to be shared publically, taking into account the progress of related legislation and approval processes for regulatory amendments. More information is available see: Australia's skilled visas.

Global Talent Scheme (GTS) pilot launched

The GTS pilot was launched on 1 July 2018 and will run for 12 months, with the first GTS agreement already in place.

Where no suitable Australians are available, businesses will now have the opportunity to sponsor highly-skilled overseas workers with niche skills that are not covered by the short-term and medium-term streams of the Temporary Skill Shortage visa (subclass 482) program. The GTS will have two streams:

  • Established Business stream allows employers who are accredited sponsors to employ highly-skilled individuals with cutting-edge skills to contribute to innovation in an established business, and help make Australian businesses and their Australian employees the best at what they do.
  • Start-up stream allows employers to sponsor highly-skilled individuals with cutting-edge skills to contribute to Australia's start-up ecosystem and bring new ideas, new jobs, new skills and new technology for Australia. This stream is for start-ups operating in a technology based or STEM (science, technology, engineering and mathematics) related field. Start-ups must be endorsed by the independent start-up advisory panel.

In both instances, a four-year TSS visa will be issued with the option to apply for permanent residence after three years. For more information, see Visas for innovation.

The Fair Work High Income Threshold (FWHIT) increase

The Fair Work High Income Threshold (FWHIT) was increased on 1 July 2018 from AUD142,000 to AUD145,400. More information is available from the Fair Work Ombudsman website.

1 July 2018 changes to online skilled forms

Changes were made on 1 July 2018 to the online TSS, ENS and RSMS visa application forms as follows:

  • ENS/RSMS forms have been updated to include some of the improved questions available in TSS forms.
  • Dynamic Document Checklist functionality has been implemented for all ENS/RSMS application forms so that required documents displayed are relevant to the applicant's circumstances.
  • Some changes were made to correspondence for ENS/RSMS applications.
  • Applicants for TSS visas are now required to provide a good quality full-face view photograph with their application.
  • Applicants for TSS visas who are required to provide full biometrics will now automatically receive a letter requesting this as soon as their application is lodged (this will apply to certain visa applicants associated with Overseas Business Sponsors).

Note: the Regional Certifying Body (RCB) question was omitted from the RSMS online nomination form unintentionally on 1 July 2018. The Department will seek to have this fixed as soon as possible. In the interim, please ensure you continue to upload a copy of RCB advice where required.

Skilling Australians Fund (SAF) legislation update

The Migration (Skilling Australians Fund) Charges Bill 2017 and Migration Amendment (Skilling Australians Fund) Bill 2017 passed Parliament on 9 May 2018 and is expected to come into effect this quarter. Further information about the new levy is now available on the Department's website.

Note: There will be no exemptions for the SAF levy, except for religious workers nominated under the Labour Agreement (LA) streams of the TSS or ENS visas. All other sponsors, including those who are party to a labour agreement, must also pay the SAF levy.

On the date of implementation, additional changes to the TSS program will also be implemented. Subject to the making of relevant regulations and instruments these are expected to include:

  • changes to Labour Market Testing (LMT) arrangements, with an instrument published to specify the form in which LMT must be undertaken (removing current policy discretion in this space)
  • some increased flexibility to allow for part-time work under the TSS program under limited circumstances
  • requiring nominations to be withdrawn or refused where a concurrent sponsorship application or labour agreement request is refused – ceasing the current practice of 'otherwise finalising' nomination applications in these circumstances
  • ensuring that an approved nomination does not cease before processing of an associated TSS visa application is completed, including merits review.

It is noted, however, that requirements relating to the manner in which LMT must be conducted have already been implemented under policy. Agents should also be aware that the SAF Act imposes the following requirements for nominations lodged from the date of implementation:

  • the duration of the LMT undertaken will need to be four weeks, and
  • LMT, where required, will need to have been undertaken within four months immediately prior to lodgement.

It is expected that some cohorts will continue to be able to provide alternative evidence of LMT.

Temporary Skill Shortage (TSS) visa update

TSS visa processing times

As expected processing times for the TSS visa are much quicker than for the previous Temporary Work (Skilled) (Subclass 457) visa program – with 75% of applications currently being processed within:

  • 57 days for the short term stream
  • 55 days for the medium term stream
  • 28 days for the labour agreement stream.

Agents are reminded that certain TSS applications are also given priority processing consistent with the relevant Ministerial direction and hence priority should not be separately requested for these. Applications from accredited sponsors are given the highest priority, followed by applications where the nominated position is in regional Australia, and then applications in the Labour Agreement stream.

Priority processing request arrangements will be reviewed in the coming months as high levels of these requests continue to be received and impact resources available to devote to processing. In the interim, agents are asked to refrain from submitting priority processing requests unless absolutely essential.

Reminder regarding incomplete applications

Agents are reminded that they will not be provided with an opportunity (or invitation) to provide further supporting documents where TSS applications (sponsorships, nominations and visas) are assessed as not meeting the legislative requirements. Invitation to comment or provide further documentary evidence will only be initiated where required to do so by law. TSS applications should be complete at lodgement. You now have the opportunity to provide any additional documentation in relation to already submitted TSS applications, particularly if they were submitted some time ago. All supporting documents should, however, be uploaded directly to ImmiAccount. Note: This advice also applies to pipeline subclass 457 visa applications.

Character requirement and accredited sponsors

TSS visa applicants are able to submit a written reference, from their accredited sponsor, confirming that they are of good character and have not been convicted of any criminal offences, in lieu of providing overseas penal certificates. Following feedback from stakeholders, we have adjusted the recommended wording of the declaration currently available on the Sponsorship accreditation page to further emphasise that sponsors are only making a declaration on the basis of information available/known to them at the time.

Note: If negative information comes to light about an applicant's character after a declaration has been made, the Department will consider the broader context of this information (if/when it became known to the sponsor) and provide the sponsor an opportunity to comment on the matter, before taking any action against the sponsor's accredited status.

Some other issues have also been recently identified, including agents providing:

  • one character reference for number of unrelated visa applicants, nominated by the same accredited sponsor
  • references which do not include the date(s) of birth of the visa applicant(s).

Agents are reminded that accredited sponsors should provide a separate character reference for each case, and that the reference letter must include the date(s) of birth of all visa applicant(s).

Linking new TSS visa nomination to a pending subclass 457 visa application

Some agents are continuing to enquire whether it is possible to link a new TSS visa nomination to a pending subclass 457 visa application which is not at merits/judicial review. This cannot be done under the Migration Regulations, specifically regulation 2.72. Applicants in these situations should consider their eligibility for a TSS visa and may also wish to consider withdrawing their pending subclass 457 visa application.

Condition 8607

Agents are reminded that condition 8607 only applies to the new TSS visa, not existing subclass 457 visa holders. As a result, existing subclass 457 visa holders do not need to apply for a new visa in order to work in a new occupation. This new requirement only applies to TSS primary visa holders subject to 8607 condition.

Reminder regarding newborns and subsequent entrants

Agents are reminded that the TSS Schedule 1 (validity) requirement to hold a:

  • substantive visa
  • Bridging A visa (BVA)
  • Bridging B visa (BVB)
  • Bridging C visa (BVC)

at the time of application for a TSS visa in Australia applies to all applicants, not just primary visa applicants.

That is, newborns and subsequent entrants applying for a TSS visa must also meet this requirement in order to lodge a valid TSS visa application in Australia. The Department cannot authorise alternative lodgement in these situations just because the system is blocking online lodgement. This is because the system is designed to block lodgement in such situations in line with the legislation. Information is available on the Department's website regarding:

Contacting us

The mailbox is now closed. Please ensure that where you need to contact us that you do so via the mailbox. If you wish to provide further supporting material in relation to a pending subclass 457 visa application, these should not, however, be emailed and must be attached to the relevant application in ImmiAccount.

Permanent Skilled visa update

General Skilled Migration changes

As of 1 July 2018, the pass mark for the skilled migration points test is 65 points.

  • The maximum age for claiming points for skilled partners has also been reduced from under 50 to under 45 years of age.
  • Intending migrants who were invited to apply for a visa before 1 July 2018, based on achieving a score of 60 and/or claiming points for a skilled partner who is under 50 years of age, will still be considered against the pre 1 July 2018 provisions.
  • The related policy instruction for the points test for general skilled migration is being reviewed and will be published as soon as available. The relevant website pages, however, have already been updated.

The subclass 189 points tested visa stream and subclass 489 invitation rounds have traditionally been run fortnightly. The Department has reviewed this process and will now extend invitations on a monthly basis. The invitation numbers will be increased accordingly, to ensure the number of applications received will maintain a strong pipeline for the skilled program. There are no other changes being implemented aside from moving to a monthly invitation process.

RCB for the Regional Sponsored Migration Scheme (RSMS)

This is a reminder that Regional Certifying Bodies (RCBs):

  • do not make decisions on RSMS nomination applications under the Direct Entry stream
  • only provide 'advice' in relation to local labour market conditions.

The final decision on a nomination application is made by the Department who may (or may not) be guided by the advice of the RCB. As a result, any concerns agents or their clients have around the RCB assessment process should be directed to the Department, not the RCB itself.

The Department has been receiving increasing complaints from RCBs about undue and persistent representations being made by certain agents in relation to particular cases. The Department is taking this feedback from RCBs very seriously and reminds agents of their professional obligations which are available from the website of the Office of the Migration Agents Registration Authority.

Beneficial interpretation of ENS/RSMS nomination provisions – TRT stream

Agents are advised that the Department continues to apply a beneficial 'wider interpretation' in relation to the 'direct control' provisions (as per Regulation 5.19(3)(a)(iv) and 5.19(3)(i)). Advice on this matter was removed from the relevant Procedural Instruction (PI) on 18 March 2018, but will be returned in the new August edition of the PI and continues to apply during the interim period. In essence, this approach ensures that an original Standard Business Sponsor can nominate their subclass 457/TSS visa holder for permanent residence under ENS 186 and RSMS 187, despite work done for an associated entity during the two/three year period working on a subclass 457/TSS visa.

A beneficial approach will also be taken in relation to the interpretation of regulations 5.19(5)(b) and 5.19(5)(f), where a subclass 457/TSS visa holder obtains a further approved nomination, but certain elements of the nominated position have changed. In these circumstances, the period worked before the change in the position can also be counted towards the two/three year eligibility requirement. This could include where the new nomination is under the same four-digit ANZSCO code, but:

  • the position has changed slightly in terms of title and tasks or
  • the salary has increased over time.

Phone contact with permanent employer sponsored visa decision makers

Decision makers on ENS and RSMS visa applications will no longer accept phone calls in relation to pre or post lodgment queries. Pre-lodgment enquiries should be directed to the Department's General enquiry form. If you are lodging further documents, these should be attached to the appropriate application in ImmiAccount.

Note:  We will not respond to requests for processing times as this information is available on the website. If your application is outside of these timeframes, please refer your enquiry to the Department's Global Feedback Unit.

Labour Agreements update

Due to demand, the Department is currently taking up to six months to process labour agreement requests. We are, however, implementing a number of initiatives to reduce this to three months later in 2018. This includes the release of an online labour agreement request form towards the end of 2018 and a revised prioritisation matrix. Certain requests will be able to be processed much more quickly, including those lodged by regional employers or under some existing template arrangements. In the interim, we would, however, encourage organisations seeking to renew a labour agreement to apply at least three months before the expiry date. The list of current labour agreements has also been recently updated.

Character related matters

New Zealand Police checks

All New Zealand police certificates undergo a verification process. Agents should ensure that New Zealand Ministry of Justice certificates are made out to the applicant directly (not to a channelling agency such as 'Veritas' or 'Fit2Work') and should be provided to the Department with a completed 'Consent to Disclosure of Information' form – where applicable. Refer to the contact us page for New Zealand for further information.

Note: The verification process currently takes approximately 2 months and cannot be expedited. Agents should not email the mailbox requesting updates on verification timeframes as they are outside of our control, and handling these enquiries takes time away from processing.

Calculating if / when a clearances is required

It is important that applicants accurately complete the dates of entry and exit of the countries they have visited or resided in so that the total period spent in that country may be calculated by visa processing officers. We have noted an increase in the use of 'dummy dates' being recorded in applications and warn that applicants entering dummy data in relation to dates of entry and exit of foreign countries could be assessed as having made a false declaration to the Department. Where visa processing officers consider it appropriate, they may request a copy of the relevant travel documents to verify travel dates provided as applicants should record entry and exit dates in accordance with the official record in their travel documents.

Certificates issued by private agencies

Certificates must be provided by a federal or national authority in the country from which the certificate is being obtained. As an example, certificates issued by 'Fit2Work' are not acceptable.

Scans of penal clearances

Scanned copies of penal clearance certificates must be a minimum of 300DPI in 24 colour and saved as a JPG image at a good quality setting.

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