NEWS Skilled Visa E-news September 2018

Skilled visa e-news Septemeber edition graphic

Skilled Visa E-news September 2018

Welcome

This edition of the Skilled Visas E-news is mainly focussed on the recent changes to the skilled visa programs of 12 August 2018. These include:

  • the implementation of the Skilling Australians Fund (SAF) and
  • changes to the Labour Market Testing (LMT) legislative instrument.

The changes are consistent with the Government's announcement of 18 April 2017. We will continue to use this newsletter to share more detailed information with registered migration agents when available to be shared publically. More information is available see: Australia's skilled visas.

Temporary Skill Shortage (TSS) visa update

Order of processing TSS visa applications

Ministerial Direction No. 77 – Order for processing applications lodged under the Temporary Skill Shortage (TSS) visa (subclass 482) sets the order of priority for considering such applications – that is:

  1. applications lodged by accredited sponsors
  2. applications lodged for positions that are located in a regional Australia
  3. applications lodged under the Labour Agreement stream
  4. all other applications

If your client's application does not fall into categories 1-3 above, it will receive the least priority as per the ministerial direction. Such an application should, however, be processed within the timeframes advertised at Global visa and citizenship processing times.

Agents are reminded of the opportunity to seek accreditation where they consider that their clients qualify, to ensure that these clients receive a priority service.

Cessation of the priority processing service

The current service of priority processing requests for TSS and Temporary Work (Skilled) visa (Subclass 457) visa applications will cease on 5 September 2018. That is, any priority processing email requests which are received on, or after, this date will no longer be acknowledged. This is because:

  • the receipt of large volumes of requests continues to impact resources available to process visa applications
  • the Subclass 457 visa pipeline is expected to be finalised by the end of the calendar year and the processing network are pro-actively prioritising the remaining caseload, including closely monitoring visa applications where the related nomination application is shortly to expire
  • TSS processing times are much faster than for the Subclass 457 visa, with prioritisation arrangements already in place, as outlined above.

The TSS mailbox auto-response will be updated to reflect this. For priority processing requests already sent to the Department before this date:

  • any applicant already advised that they will be accorded priority by the cut-off date will continue to receive priority for that specific application(s)
  • any applicant pending a decision on the cut-off date will have that request declined and you will not receive written notification of this decision.

If your application is outside of these advertised timeframes, please refer to Compliments, complaints and suggestions to provide your feedback. Please do not send requests for priority to other contact channels (for example: program management mailboxes and/or individual officers), as they will not be responded to.

Other processing reminders

It is the responsibility of agents to ensure that their clients are aware of the:

  • requirement to notify the department of any changes in circumstances, including those relating to newborns (both onshore and offshore)
    • concerns have been raised that some clients are not notifying the department of their newborns for almost one year after their birth – which is not acceptable
    • this is important, in particular, for large organisations with a large overseas workforce, where it is highly recommended that the Human Resources department of the sponsor sends such employees regular reminders about their immigration-related obligations as visa holders and / or visa applicants
  • need to consider lodging a BVB application in advance as much as possible, otherwise a BVB may not be able to be issued in time for any urgent or unforeseen travel
    • BVB processing times are included in the TSS mailbox auto-response which is updated regularly
  • character requirements as per the recent update to the August 2018 Skilled Newsletter
    • in particular with regards to character calculations, certificates issued by private agencies and scans of penal clearances
  • TSS mailbox auto-response information which is updated regularly
    • the auto-response provides information regarding what enquiries will be responded to, and the response times
    • this also provides the appropriate avenue for enquiries that will not receive a further response
    • agents are also reminded to refrain from sending multiple emails regarding the same case, or sending emails to multiple mailboxes, as this impacts on our ability to respond to the enquiries that require attention.

Automatic reminders now being sent to sponsors

As of 9 August 2018, automatic reminder messages are now being sent to:

  • standard business sponsors to encourage them to renew their standard business sponsorship (SBS) before its expiry date*; and
  • visa holders to remind them, if their sponsor has notified the Department that they have ceased employment, that they have 60 or 90 days of their employment cessation date (depending on when their visa was granted), to find themselves another current business sponsor who will nominate them or depart Australia.

*Note: Business sponsors who have already let their SBS expire will not be able to simply renew the expired sponsorship using the new shorter Sponsorship Renewal form in ImmiAccount. They will instead have to start all over again by completing a longer application form and having to provide all required documentary evidence again.

Labour Market Testing (LMT) FAQs

Do I always need to provide supporting documentation?

Yes - unless LMT is not required due to an international trade obligation.

Agents are reminded that supporting documentation is required to be attached to all nomination applications lodged on, or after, 12 August 2018. This includes situations where alternative evidence requirements apply as outlined on the Department's website.

Where alternative evidence requirements apply, agents must provide a written submission explaining why an Australian worker is not available to fill the position. The website provides further guidance about what this submission should include. Failure to provide the written submission at lodgement will result in the refusal of the nomination application. The network has identified that written submissions have not been provided in all instances, particularly where the nomination relates to:

  • an occupation in ANZSCO Minor Group 253 – Medical Practitioners (except General Practitioner (ANZSCO 253111) and Medical Practitioners nec (ANZSCO 253999)) or ANZSCO Unit Group 4111 – Ambulance Officers and Paramedics, or
  • changes in business structure.

Note:

  • Changes to the TSS nomination application form to cater for the alternative evidence arrangements are expected to be available in November 2018. 
  • Until then, agents should continue using the existing work-around arrangements described in the Nomination application form – Temporary Skill Shortage visa, Guide for applicants – March 2018 which was emailed to all registered migration agents in April 2018. These explain how the nomination application form should be completed in situations where alternative evidence is acceptable.

Is publication of a salary range acceptable?

Yes – this is now clarified in the nomination PI, section 4.7.5.2 The manner in which LMT must be undertaken which has recently been updated.

Can the salary advertisement refer applicants to the enterprise agreement for the salary amount?

Yes – if the salary information is still clearly identifiable. That is, the advertisement clearly specifies the relevant enterprise agreement and salary level as per the agreement. If this is not possible, the salary should be specified in the advertisement itself.

Is Gumtree an acceptable method for advertising?

No. A general classifieds website or an advertisement solely through social media notification (such as Twitter or Instagram) are not acceptable methods. Such advertisements are not considered to comply with the "method" requirements outlined in section 8(3) of the current LMT legislative instrument.

Does the four week LMT advertising need to be consecutive?

No. This is not required. For example, the requirement will be satisfied if advertising was conducted for an initial period of two weeks, which was then paused for three weeks, and then recommenced for a further two weeks (i.e. a total of four weeks advertising campaign with a three week gap in the middle).

Skilling Australians Fund (SAF) levy FAQs

Can ENS/RSMS nominators pass SAF levy onto their applicants?

No. Employers are responsible for paying the SAF levy for ENS/RSMS applications, not nominees.  A nominee being asked to pay the SAF levy for an ENS/RSMS application may be a breach of payment for visa sponsorship legislation. 

Will a surcharge apply when paying the SAF levy?

If paying for the nomination application (and SAF levy) with a credit card, the surcharge is calculated on the whole amount (i.e. nomination fee plus SAF levy). BPAY payments will not attract a surcharge.

I am employing an existing TSS visa holder. Does the employment period need to match their visa expiry date?

No. The sponsor should nominate and pay the SAF levy for the period of intended employment.
If this is for one year only, then one year of SAF payment will be required. If circumstances change and the sponsor extends the employment period, then a new nomination should be lodged. There is, however, currently no sanction for failing to do so. Agents are, however, reminded that SAF refunds are:

  • only available from November for situations where the employment period is more than one year and
  • discretionary only. That is, a refund request may be declined where there are concerns that companies are engaged in activities designed to avoid the intended operation of the SAF levy scheme.

Is a visa holder prevented from working past the period SAF levy has been paid for?

No – as long as their visa remains valid and they continue to work in the nominated occupation for the nominated employer.

For information about the Skilling Australians Fund (SAF) levy requirement including refunds, see: Employer Sponsored Skilled visas - Skilling Australians Fund (SAF) levy.

Permanent skilled visa update

Transitional arrangements for TRT stream – two year visa and employment requirement

Agents are reminded that clients who have access to transitional arrangements for TRT stream (refer to March edition of Skilled Visa E-news) must still meet standard TRT nomination requirements. The transitional arrangements in place only provide for the following exceptions:

  • the skilled occupation list requirements do not apply
  • the applicant has held a TSS or subclass 457 visa for a total period of at least two years immediately before the TRT nomination application is made
  • the applicant has been employed in their nominated position as the holder of a TSS or subclass 457 visa for at least two years immediately before the TRT nomination application is made.

As such, clients from the transitional cohort who were granted a subclass 457 visa for a period of two years and whose nominated occupation is currently not on the list of eligible skilled occupations are unlikely to meet the second and the third dot points above.  Should clients from this cohort be nominated in a different occupation for the purpose of a TSS visa application and provided the TSS visa is granted, the two year period for the purpose of a two year visa and employment requirements will commence on the date of the TSS visa grant.

Skilled migration occupation ceilings for the 2018-19 program year

The Department's SkillSelect web page containing the 2018-19 migration program year occupation ceiling values was initially published in July 2018 with values that had not been amended for 2018-19. 

The occupation ceiling values for the 2018-19 program year have since been updated and were published on the website on 29 August 2018.

Business innovation and investment program (BIIP) visas – ImmiAccount

As of 1 July 2018, ImmiAccount became the preferred option for providing supporting documents for a Business Innovation and Investment Subclass 888) visa – see: Business innovation and Investment visa online applications.

You will not be sent a manual checklist any longer. You are able to access your application online at any time up until the time of decision, and attach additional documents as required. You should refrain from emailing or mailing documents to the processing centre in addition to attaching them in ImmiAccount.

Labour Agreements update

Cessation of the Snow Sports labour agreement (SSLA)

Following discussions with industry stakeholders, it has been agreed that from now on, the Temporary Work (Short Stay Specialist) (subclass 400) visa program should be used by the snow sports industry where overseas workers are required during the ski season to meet recruitment needs. This visa is considered better suited to industry needs, given the shorter stay periods and seasonal nature of the work undertaken.  As a result, existing SSLAs will no longer be required.

Consequently, the Department ceased all existing agreement on 31 August 2018. SSLA information will also be removed from the Department's website shortly, with no new agreement requests, or requests for additional ceilings, to be processed under these new arrangements.

Streamlined labour agreement arrangements

The Department continues to implement new initiatives to reduce labour agreement processing times by the end of 2018. This now includes processing labour agreement requests according to the Department's Global Case Management model. This model may result in a number of different people working on your request, at different stages of the process (including registration, assessment, approval and execution – where applicable).

All in all, the aim is to process your request as efficiently and as quickly as possible. To ensure this new model works effectively, the LA team will no longer accept incoming phone calls regarding your requests. Please make sure that you send any enquiries by email only to labour.agreement.section@homeaffairs.gov.au. If the LA team requires further information, they will contact you by return email or phone you for a quicker resolution.

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