NEWS Skilled Visa E-news March 2018

Skilled Visa News

​Skilled Visa E-news March 2018

Welcome

This edition of the Skilled Visas E-news focuses on the changes to the skilled visa programs which came into effect on 18 March 2018. This includes the implementation of:

These changes are consistent with the Australian Government's announcement of 18 April 2017 and were publically announced yesterday by the Minister of Citizenship and Multicultural Affairs, see Government delivers next wave of reform on 457 visas.

This newsletter contains additional information about these changes in response to questions from registered migration agents and stakeholders, as well as updates to previous information provided. For more information visit - Australia's skilled visas.

Implementation successfully completed

No further applications under the Temporary Work (Skilled) visa (subclass 457) program can be lodged, with the new TSS visa online forms available for use since 18 March 2018. The first applications have already been lodged under the new program.

In addition, as of 18 March 2018:

  • updated ENS and RSMS online forms are available
  • new web pages have been published, which provide information on the new TSS visa product and revised ENS/RSMS arrangements
  • new and updated regulations and procedural instructions are available in Legendcom.

Occupation updates

Updated skilled occupations lists have now been finalised to accompany the new changes and are available on the Federal Register of Legislation. An updated combined current list of eligible skilled occupations is also be available on the Department's website. The main changes are:

  • the addition of regional occupations for a number of visa programs, which are included in the instruments for the relevant visa program
  • only occupations on the Medium and Long-Term Strategic Skills Shortage List (MLTSSL) are available to the ENS program as announced by the Government in April 2017 and
  • occupation list requirements apply to the Temporary Residence Transition (TRT) stream of the ENS and RSMS visa programs at nomination application stage, except where transitional arrangements are available.

As previously announced by the Government, in recognition of the particular challenges that regional areas face in recruiting skilled workers, there are additional occupations available for certain visa programs to employers in regional areas.

The Department of Jobs and Small Business will immediately commence a consultation process including on skill shortages in regional areas. The outcomes of this consultation will be factored into the regular review of the occupation lists that underpin the new visa arrangements, which is expected to deliver updated lists in July 2018.

Note:

  • When the occupation lists are updated in mid 2018, subject to further consultation processes, it is anticipated that mandatory skills assessments may be expanded for the Direct Entry (DE) stream of RSMS for all occupations (not just trade occupations), unless the visa applicant is exempt or holds the relevant Australian qualification.
  • There have been no changes to the role of Regional Certifying Bodies (RCB) for 18 March 2018. The matters that RCBs provide advice on are essentially the same, they are however, worded differently in the Regulations to reflect the new market salary rate framework. Advice will be circulated separately to RCBs.
  • Regional employers now receive priority processing of TSS nomination and visa applications.

Temporary Skill Shortage (TSS) visa update

Update regarding transitional arrangements

Transitional arrangements are in place as advised in previous newsletters. Additional regulatory amendments have, however been made to manage subclass 457 visa applications that are currently undergoing review at the Administrative Appeals Tribunal (AAT). As a result, an approved nomination will not cease if:

  • both the nomination and the associated visa application, were lodged before the TSS implementation date and
  • within 12 months of the nomination being approved, a review application is lodged with the AAT in relation to a decision to refuse the associated subclass 457 visa application.

New arrangements for accredited sponsors – penal checks

Where an applicant (and their dependants) for a TSS visa (and/or a subclass 457 visa) is sponsored by an accredited sponsor, they may attach a reference from their accredited sponsor confirming that they are of good character and that they have not been convicted of any criminal offences, as an alternative to providing police certificates from countries other than Australia where required. All applicants must still, however, provide any required Australian Federal Police clearances. The Department's website will clarify the new process, including preferred wording for this 'reference' and implications if the applicant is subsequently found to fail the character test.

Work experience requirements for the TSS visa

All primary TSS visa applicants must demonstrate that they have at least two years' work experience in the nominated occupation or a related field. Such work experience must be completed while working in the nominated occupation, or performing tasks at the same skill level in a related field.

As outlined in the Procedural Instructions Temporary Skill Shortage (TSS) visa (subclass 482) – visa applications (available in Legendcom), flexible arrangements are in place to cater for specific industries. For example, experience is able to be counted where it was gained:

  • as part of a Masters and/or PhD - for relevant occupations, such as medical and research occupations
  • while studying through a formal arrangement (for example, a clinical/industry placement, internship or apprenticeship) that is undertaken:
    • as part of a Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) registered course of study where it is relevant to the occupation (for example, for medical practitioners, experience gained through internships or the final year medical training, including periods of clinical placements)
    • outside of a CRICOS registered course of study, where undertaken at the skill level of the relevant occupation.

Additional advice on training requirements

The Bills to implement the Skilling Australians Fund (SAF) levy are currently before the Parliament. As a result, standard business and labour agreement sponsors are still required to meet their training obligations.

As part of the transition towards the SAF levy arrangements, as of 18 March 2018, businesses are no longer required to demonstrate at sponsorship application stage that they have met the 'training benchmarks'. If they are approved as a sponsor, they are, however, required to meet their training obligation for any future full year of their sponsorship where the SAF arrangements are not in effect. For example (noting using example dates only):

  • Sponsorship approved 1 April 2017. SAF implemented 1 April 2018. The sponsor would be required to meet the training benchmarks for the period between 1 April 2017 and 1 April 2018. After that time, there is no training obligation and only SAF payments must be made if a nomination is lodged.
  • Sponsorship approved 2 February 2018. SAF implemented 1 April 2018. There is no training obligation and only SAF payments are required, as a full year of sponsorship has not passed before the SAF is implemented.

Labour Market Testing (LMT) for TSS visas update

As previously advised, the Procedural Instructions Temporary Skill Shortage (TSS) visa (subclass 482) – nominations, available in Legendcomoutlines the current policy arrangements in terms of labour market testing as of 18 March 2018.  Note: These may change again subject to the passing of the SAF legislation and the drafting of related instruments.

Under these new arrangements:

  • There are no exemptions based on the skill level of the nominated occupation. LMT is required for all nominations unless international trade obligations (ITOs) apply.
  • LMT is required to be completed within the six months prior to lodging a nomination (or 12 months if the application is lodged prior to 18 June 2018).

It continues to be mandatory under the Act to provide evidence with the nomination application of the sponsor's efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position/similar positions (that is, copy of advertisement(s) and a receipt for any fees).

Important: to avoid an unnecessary unfavourable outcome, where fees were paid for advertising, do not forget to attach the receipt to the nomination application, as well as a copy of the relevant advertisement.

In addition to assessing that the above evidentiary LMT requirements are met, officers must also be satisfied that a suitably qualified and experienced Australian worker is not available to fill the nominated position. Under policy, the evidence of LMT provided should have had sufficient coverage and duration to test the local labour market in order to demonstrate this. Evidence which meets the following criteria will generally be considered sufficient:

  • the nominated position has been advertised in Australia
  • the advertisement was in English
  • the advertisement included the following information:
    • the title, or a description, of the position
    • the name of the approved sponsor or 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, currently AUD 142,000). Note: it is acceptable, under policy, to publish a salary range (for example, AUD 80,000 to AUD 90,000).
  • at least two advertisements were published, and each advertisement was published in any one of the following ways:  
    • on a national recruitment website (for example, jobactive.gov.au) – that is, a prominent or professional recruitment website that publishes advertisements for positions throughout Australia. Note: A general classifieds website or an advertisement solely through a social media notification, such as Twitter, Facebook, LinkedIn or Instagram, is not an acceptable method
    • in national print media – that is, national newspapers or magazines that are published at least monthly and marketed throughout Australia
    • on national radio – that is, radio programs that are broadcast or syndicated nationally
    • internally to the business, if the position is an intra corporate transfer
    • on the business' website, if the sponsor is accredited.
  • if the advertisement was published on a website, it 'remained live' for at least 21 consecutive calendar days.
  • if the advertisement was published in print media or on radio, applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days.

Note:

  • Additional advice is provided below on how the Department will manage the above policy settings in the initial post-implementation period up until any further legislative changes are implemented.
  • Sponsors are expected to transition towards implementation of the new LMT requirements outlined above as soon as possible. If further anticipated legislative changes occur, the Department will have no flexibility to approve applications where these requirements are not met. 
  • 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). That is, there is no requirement that the sponsor placed the advertisement themselves.

LMT evidence required during transitional period

Where LMT evidence* is required to be provided:

  • evidence must accompany the nomination application and cannot be provided subsequently, and
  • it must indicate that the LMT was undertaken within the required period before lodging the application.

Failing to comply with the above will result in a refusal.

*Note: as discussed below, there are alternative evidence arrangements available under policy for particular scenarios.

Where such evidence is provided (until further expected legislative changes occur), the Department is, however, taking a flexible approach when assessing the more specific TSS LMT policy requirements outlined above, provided the sponsor has made genuine efforts to recruit Australian workers, consistent with Migration Act requirements. This approach is being taken as it is understood that recruitment processes may already have been underway, or completed, at the time of TSS implementation, and employers may need time to update their processes.

Under these transitional flexible arrangements, where the sponsor has undertaken LMT prior to 18 March 2018, the advertising evidence provided will generally be accepted if the advertisement would have met pre 18 March 2018 LMT arrangements. That is, sponsors are not expected to repeat recruitment activities where they have already made genuine efforts to source workers from the local labour market.

During this transitional more flexible period (subject to the passing of the SAF legislation), positions must have been advertised in Australia and in English. The Department will, however, take a flexible approach to the 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, where efforts to source local workers have been undertaken.

Situations in which alternative evidence of LMT is acceptable under policy

As outlined in the Procedural Instructions Temporary Skill Shortage (TSS) visa (subclass 482) – nominations, alternative evidence can be considered sufficient to demonstrate that 'a suitably qualified and experienced Australian worker is not available to fill the nominated position', in certain limited scenarios (for example, distinguished talent scenario or a new nomination has been lodged due to the change of business structure).

Note:

  • Where the nominated position is an intra-company transfer, alternative evidence may also include evidence of such a transfer in lieu of advertising.
  • The Nomination application form – Temporary Skill Shortage visa, Guide for applicants – March 2018 that was sent out to all agents in April 2018 explains how agents should complete the nomination form in situations where alternative evidence is acceptable.

Permanent skilled changes for March 2018 

Additional advice regarding transitional arrangements for TRT stream

Transitional arrangements are in place for the clients who fall within the cohort outlined in the table below.   

Client Cohort TRT requirements expected to apply

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

or,

if 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 457 visa/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 as the holder of a subclass 457 or TSS visa will remain at two years.
All other applicantsNew requirements apply (for example, new age requirements, occupation list requirements and three year transitional period on a temporary visa).

Important:

  • Eligible overseas workers will need to lodge their permanent visa application within four years (by March 2022).
  • Access to these transitionals by an overseas worker is not dependent on continuing to hold the same subclass 457 visa or working for the same employer. The overseas worker can have since been granted subsequent subclass 457/TSS visa/s and/or been re-nominated by a different employer.

Update on drafting of transitional provisions

Some agents have raised concerns that the above transitionals were limited by the final drafting of regulation 5.19(5)(a)(iii). This is not the case, because this clause:

  • is designed to ensure that subclass 457 visa holders who applied for or held a visa before the Government's announcement on 18 April 2017, but have since been granted a TSS visa in the short-term stream, can still access these provisions
  • does not limit the transitional cohort itself which, as outlined in the relevant legislative instrument (IMMI 18/052) consists of person who on 18 April 2017:
    • held a subclass 457 visa; or
    • was an applicant for a subclass 457 visa that was subsequently granted.

Additional advice on training requirements

The Bills to implement the SAF levy are currently before the Parliament. As a result, for ENS and RSMS applications lodged on or after 18 March 2018:

  • ENS DE stream nominations will still need to meet the training benchmark requirements.
  • ENS/RSMS TRT stream nominations will still need to meet training compliance requirements – although a flexible approach will be taken to assessing such compliance during the period between July 2017 and July 2018 consistent with current subclass 457 policy arrangements.

Note:

  • Training compliance information will no longer be collected on ENS/RSMS application forms from the date of SAF levy implementation.
  • Pipeline TRT stream nominations that remain on hand when the SAF levy is implemented will still be assessed against training compliance requirements where the training obligation was in place for the full year of their standard business sponsorship. There will be no assessment of compliance for part-years before SAF levy implementation.

Labour Agreements

Update on template changes for labour agreements

Updated labour agreements which cater for the new TSS arrangements have been sent to all existing labour agreements sponsors. Impacted sponsors should make sure they return their agreement as soon as possible, so that they are able to utilise the new TSS visa program.

Changes to contact details

Communication protocols have been updated to cater for the TSS visa - see 'Help' section of Skilled visa newsletters.

Migration agents and clients should continue to utilise current online options for seeking assistance to communicate with the Department and/or provide additional documents/forms. A new ImmiAccount form will also be available for approved sponsors who wish to notify changes in circumstances.

As the Department will be managing the TSS visa program alongside the pipeline subclass 457 visa program for some time, it is even more critical that the correct contact channels are used and that agents do not copy in multiple mailboxes or send repeat requests as this will only slow down response times to your query and/or visa processing. Please take note of the below mailboxes (and auto-replies therein) in relation to topics which are in or out of scope for a Departmental response.