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Employer Sponsored Visas / 457 News

Changes to Australian 457 Visa condition 8107 – four problems 8107 causes and how a solution could be found

Changes to Australian 457 Visa condition 8107  – four problems 8107 causes and how a solution could be found

Changes to Australian 457 Visa condition 8107  – four problems 8107 causes and how a solution could be found

What is the change to condition 8107 applying to 457 visa holders?

The Government has made change to the Migration Regulations by amending condition 8107 to provide that a 457 visa holder can only cease employment with an approved sponsor for 60 days.  The relevant section used to provide that the holder could cease employment for 90 days. The change to condition 8107 applies from 19 November 2016.

The regulation now provides:

“8107 3(b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days”

The effect of this change is that if a 457 visa holder loses their job, they now only have two months to find a new employer and get a nomination approved to work for that employer.

How does the change effect 457 Visa holders?

When a family unit makes the brave decision to move to Australia in pursuit of work opportunities it is often a category 457 visa that is granted to them by the DIBP. For example, a 457 visa may be issued to provide entry for two parents and two school aged children under strict conditions. Typically these families have gone to considerable expense to fulfil the required medicals , move to Australia and begin the resettlement process with new home and schools etc.
The ever-present risk for those who arrive under a 457 visa is that the work that they have come to do may not stay available.  For example the primary visa holder may lose his or her job at short notice. The government will be applying a change to condition 8107 from 19th 2016 by reducing the amount of time that a Visa holder has to secure a business sponsor from 90 days to 60 days.

Problems caused by Condition 8107 for 457 visa holders

When a job has been lost, there are four main problems with condition 8107 in terms on how it impacts on the 457 holders. 

The first problem is that condition 8107 does not allow the primary visa holder to work for anyone other than the company that made him or her redundant. Therefore, even if the visa holder is fortunate enough to find another employer willing to be a sponsor, they cannot start working for this new sponsor until DIBP has processed the application which can take several months. This places great financial pressures on 457 Visa holders and increases the risk of holders taking up unlawful employment to make ends meet.

DIBP currently takes several months to process any stage of the 457 process.  It is commonly taking more than 90 days to get a decision from the time of lodgement, compounding the financial implications for the Visa holder. The DIBP is taking 40 working days, which is 54 calendar days, just to allocate a case officer.  The primary 457 holder cannot start employment for the new employer until the sponsorship application is approved.  This application process is likely to go a long way beyond the 60 days, and even if DIBP does not cancel their visas for ceasing to work beyond 60 days, they face an extended period without income.

Thirdly, a 90 day window to find a new employer (offering an identical position) and lodge requisite paperwork was already a difficult challenge. The 457 visa holders are often professionals with specialised skills.  For example, for a Biochemist 457 holder, finding another Biochemist role in 60 days is a difficult task. A 60 day window is unreasonable for both prospective employer and visa holder.

The fourth problem with reducing the time to cease work from 90 to 60 days, relates to exposing visa holders to exploitation by employers.  This current initiative will actually increase the power of employers and make 457 visa holders more vulnerable to threats.  457 holders will know that the possibility of finding a new sponsor in 60 days and getting then nomination approved is low. So 457 holders may be forced to stay with the current employer even if they are not being paid correctly or are subject to other forms of exploitation.

An alternative approach to condition 8107 – let them work if they lose their job until the visa cancellation

A more compassionate approach from the Department of immigration would have been to give 457 Visa holders who have lost their jobs, the right to work for other employees during that period so that they can financially support themselves. This would also enable them to do work trials and find another employer more effectively.

An exception could be inserted into condition 8107, lets call it 8107 part (5), which currently does not exist.  The exception could allow for the circumstances where employment is terminated, to give them the ability to work and support their families and also to facilitate finding a new sponsor.  The new exception to 8107, which we could call it 8107 part (5) could provide along the following lines:

“If employment is terminated by the employer in relation to which the visa was granted, then the work restrictions of condition 8107 no longer apply.  The employee can work in any position without restrictions.  If an application is lodged for another sponsor, and processing extends beyond 60 days, the ability to work will continue up until such time that a decision is made regarding the new business sponsor. The work restrictions of 8107 will no longer apply, up until the time that the visa is cancelled.”

This is not such a radical suggestion. There are approximately two hundred thousand of working holiday makers visas granted each year, who can do any type of work.  The number of 417 visas granted in the year 2014 to 2015, was 214,830. There are also students visa holders that can do any type of work, capped at 40 hours per fortnight.  The number of 457 holders including family member in the quarter ending March 2016 was 177,390. The number of 457 visa holders, that had lost their job would be very small, probably less than 5,000 at any time.

The current changes to condition 8107 could be described as kicking people when they are down.  Rather than supporting vulnerable workers and their families, the changes deny them any income and then force them to leave ASAP.  Whilst there appears to be empathy for student visa holders when exploited by employers there is little empathy or compassion for 457 skilled workers and their families when they lose their jobs.

If the 457 holder cannot find another employer then they will ultimately have to leave Australia when their visa is cancelled. The process, as proposed by this change, does not have to be so mean and humiliating.

Time of Writing:

This information is accurate on the 19 November 2016.

Sources:

Working Holiday Makers in Australia: a quick guide 22 June 2016 http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/WorkingHoliday

Fact check: Are there 'over a million 457s' in Australia?http://www.abc.net.au/news/2016-06-02/fact-check-are-there-over-a-million-457s-out-there/7463706

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At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

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Australian Government Targets Vulnerable 457 visa holders. Condition 8107 changed by slashing time 457 holders have to find a new employer from 90 to 60 days!

Australian Government Targets Vulnerable 457 visa holders. Condition 8107 changed by slashing time 457 holders have to find a new employer from 90 to 60 days!

Government Targets Vulnerable 457 visa holders. Condition 8107 changed by slashing time 457 holders have to find a new employer from 90 to 60 days!

Change to Condition 8107 on 457 Visa:

The Government has changes Migration Regulations by amending condition 8107 to provide that a 457 visa holder can only cease employment with an approved sponsor for 60 days.  The relevant section used to provide that the holder could cease employment for 90 days.

The regulation now provides:

“8107 3(b)  if the holder ceases empl​oyment — the period during which the holder ceases employment must not exceed 60 consecutive days”

The effect of this change is that if a 457 visa holder loses their job, then now only have two months for find a new employer and get a nomination approved to work for that employer.

Processing time for a decision upon a 457 Nomination

Processing standards quoted by DIBP are currently 40 working days until allocation to a case officer, which if you also count the weekends, is about 56 calendar days until first allocation.  

But part of the DIBP integrity push is that they almost always ask for evidence of genuine position for a nomination, which will then start the request further information (RFI) - a cycle which usually takes 28 days at a minimum.

So with one request, the timing to a decision on a nomination is 56 plus 28 = 84 days for a nomination decision with one request.

 

Sources:

  1. Migration Legislation Amendment (2016 Measures No. 4) Regulation 2016, https://www.legislation.gov.au/Details/F2016L01696

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

This policy will make it practically impossible for most 457 visa holders to find a new position and to stay in Australia if they lose their job.

The timing was already very difficult when only three months (90 days) were allowed.

One of the big problems facing the 457 holder is the time that it takes for DIBP to make a decision on a 457 nomination.  

 

 

 

So even if you find a new employer on the day you lose your 457 job, you will most likely not be able to get the nomination approved in 60 days.  So the 457 holder will be exposed to having their visa cancelled.

There have been a number of policy changes to try and increase the integrity of the 457 program.  Many of these policy changes have been targeting potential abuses by employers. For example the no payment for migration outcome regulations.

This current initiative will actually increase the power of employers and make 457 visa holders more vulnerable to threats.  457 holders will know that the possibility of finding a new sponsor in 60 days and getting then nomination approved is low. So 457 holders may be forced to stay with the current employer.

This information is accurate on 02 November 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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South Australia announces School Fees for children of 457 visa holders

South Australia announces School Fees for children of 457 visa holders

The South Australian (SA) State Government has introduced school fees for 457 visa holders starting on 1 January 2017. New 457 visa holders who arrive in South Australia from 1 January 2017 will have to pay school fees for each child attending public schools. You will not be required to pay the school fees if your annual gross household income is $57,000 or lower. 457 visa holders are also charged school fees in Western Australia (WA), New South Wales (NSW) and the Australian Capital Territory (ACT).

Do note that this is only applicable to new 457 visa arrivals in SA from 1 January 2017 onwards. It will be extended to all 457 visa holders on 1 January 2018.

Here are the details about the school fees applicable:

Applicable Fees

$5,100 for each primary school child

$6,100 for each secondary school child

The full amount is applicable to the eldest child, with a 10% discount on the fees for subsequent children in school.

Payments can be made upfront, per semester/term or in regular instalments.

Income Means Testing

Families do not need to pay the full fee if their annual gross income does not exceed the income threshold. The income threshold is calculated as follows:

Family with 1 child - $77,000

Family with 2 children - $87,000

Family with 3 children - $97,000

Each additional child will increase the threshold by $10,000.

So how much do I have to pay if my gross income is above $57,000 but below the threshold?

Since you do not meet the threshold income level, you will only need to pay a percentage of the contribution fees. The percentage is calculated as such:

Family with 1 child – 5% for each $1,000 above $57,000

Family with 2 children – 3.33% for each $1,000 above $57,000

Family with 3 children – 2.5% for each $1,000 above $57,000

Here are some examples provided by the South Australia Department for Education and Child Development:

Example 1

Tomas commences work under a 457 visa arrangement and will be paid a gross income of $67 000 pa. He is accompanied by his wife, who is not in paid work, and their eight-year-old daughter, who is enrolled at the local government primary school. His contribution payable would be calculated as follows:

Step 1: Primary school rate of $5100 is the full contribution rate

Step 2: Gross family income is $67 000

Step 3: Relevant family income threshold at which full fees are payable is $77 000

Step 4: As the gross family income is between $57 000 and $77 000, Tomas will not be required to pay the full contribution rate. His income is $10 000 above the $57 000 limit, so the fee payable will be 10 x 5% x $5100 = $2550.

Example 2

Aisha commences work under a 457 visa arrangement and will be paid a gross income of $61 200 pa. She is accompanied by her husband, who is working part time and earning $20 400 p.a., and their two children. Both children attend government schools; one in secondary school, the other in primary school. The contribution payable would be calculated as follows:

Step 1: The full contribution rate is $6100 + ($5100 x 90%) = $10 690

Step 2: Gross family income, (rounded down to the nearest whole $1,000), is $81 000

Step 3: Relevant family income threshold at which full contribution is payable is $87 000

Step 4: As the gross family income is between $57 000 and $87 000, Aisha will not be required to pay the full contribution fee rate. Her family income is $24 000 above the $57 000 limit, so the fee payable will be 24 x 3.33% x $10 690 = $8 552.

Example 3

Lucinda is a sole parent who commences work under a 457 visa arrangement, and will be paid a gross income of $200 000. She is accompanied by her three children, each of whom attend government schools; one in secondary school, the other two in primary school. The contribution payable would be calculated as follows:

Step 1: The full contribution rate is $6100 + (($5100+ $5100) x 90%) = $15 280.

Step 2: Gross family income is $200 000

Step 3: Relevant family income threshold at which full fees are payable is $97 000

Step 4: As the gross family income is above $97 000, Lucinda will be required to pay the full contribution rate of $15 280.

If you are a permanent resident visa holder there is no need for you to pay the contribution fee. You can contact the Department for Education and Child Development (DECD) if you need further information.

Sources:

  1. https://www.decd.sa.gov.au/sites/g/files/net691/f/schoolfees_457visa.pdf
  2. http://www.adelaidenow.com.au/news/south-australia/state-government-poised-to-charge-parents-on-457-visas-up-to-6100-per-child-for-public-education/news-story/e0bed470801a9d11614611257fc67f63

 

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

This policy will make South Australia an unattractive destination for 457 visa workers with families. Additionally a SA business which genuinely needs a skilled overseas worker to work in SA will have to provide a higher salary package to compensate for the school fees applicable. Costs to the business will be higher if a South Australian business has to sponsor an overseas worker for a 457 visa.

Another note is that the new school fees for 457 visa holders are very complicated. To assess each individual 457 visa holder’s gross income and family composition to calculate the applicable fees will take time and labour. I would guess that the public cost of administering the school fees may be very high to the SA government.

This may cause more applicants to consider the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa instead of the 457 visa if they are to be sponsored by a South Australian business. Many 457 visa holders may also be pushed to apply for permanent residency via the Employer Nomination Scheme subclass 186 visa or the RSMS visa via the Temporary Transition stream. There is now more incentive to consider the permanent RSMS visa over the temporary 457 visa.

This information is accurate on 5 August 2016

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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Australia 457, ENS and RSMS visa applications processing times getting slower

Australia 457, ENS and RSMS visa applications processing times getting slower

2018 UPDATES:

Skills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident VisasSkills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident Visas

Tougher vetting imposed by Home Affairs Minister Peter Dutton has led migration to plummet to its lowest since 2007. As reported by the Department of Home Affairs, actual intake fell from 183,608 in 2016-2017 to a staggering 162,417 for the 2017-2018 financial year. Read More. 

How long does a 457, ENS or RSMS visa take to process?

It has been noted that the processing times for the Temporary Work (Skilled) (subclass 457) visa, Employer Nomination Scheme (ENS) (subclass 186) visa, and the Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa have been getting longer in recent times. While the current Department of Immigration and Border Protection (DIBP) service standards list 2 to 3 months processing time for 75% of applications received, the actual processing times for most cases are around 5 months (based on recently submitted applications and comments by business sponsors and visa applicants in forums).

Why is the processing getting slower?

While there is no official explanation for the delay, the slower processing times might be due to increased screening of applications submitted by sponsors and visa applicants. Since the Independent Review report of the integrity in the Subclass 457 Programme released in September 2014, the Department has been stepping up integrity checks and controls for the majority of applications, especially those with the following characteristics:

  • high risk occupations such as Café and Restaurant Managers, Customer Service Managers, Project or Programme Administrators, Retail Manager, etc.
  • the applicant is related to the business owner as a family member or relative
  • an unusually high salary for a low position to claim English Language Exemption
  • the business has a low profit or is making a loss, and yet seeks to employ more people

The Department is definitely concerned with the findings of the Independent Review about the integrity of employer sponsors and employee visa applicants for the employer-sponsored visas. In addition to the slower and more meticulous screening of applications submitted, the Department has also introduced related policy such as the “Payment for Visas Conduct”, which prohibits overseas worker to pay businesses in return for sponsorship, or businesses deducting salaries from the sponsored worker to recover sponsorship costs. You can read more about this in our previous article.

Concerns with Genuine Position for Nominated Occupation in 457, ENS and RSMS visa applications

Applications with the above scenarios are likely to be asked for further information by the Department to ensure that the vacant position is genuine and the applicant meets the requirements for the position with the business. Applications that are asked to provide more documents or information will be assessed more thoroughly by the Department and hence there will be a delay to the processing times with the back and forth of submitting information and douments.

The rise in requests to provide further information are also causing assessment officers to spend more time per application, hence affecting applications that are straightforward genuine and complete when submitted.

What does this mean for the business sponsor and visa applicant?

With the expected delays the business sponsor and visa applicant need to consider the extended processing times to avoid any ill effects to the business operations (urgent need for the sponsored worker) or the visa applicant (leaving current employment too early). Additionally the business sponsor and visa applicant need to cross check before submitting the application to ensure all requirements are met for sponsorship, nomination and visa application. A strong application should be prepared with good supporting documents before submitting to the Department for processing.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

While the 457 visa programme has been in the limelight for the wrong reasons and being tightened in recent times, the employer sponsored programme is still an integral part to many businesses in Australia. Australian employers have a genuine need to employ skilled overseas workers to meet business needs to maintain or grow the Australian economy.

With the increased international mobility among skilled workers globally, it is important that the 457 visa programme remains responsive to Australian businesses’ needs and enable efficient operations.

The Department’s commitment to checking and ensuring that the 457 visa applications received are genuine makes sense to avoid abuse of the programme. However the downside of slower processing times may hurt Australian businesses that already show that they genuinely need an employee who has been identified with the right skills and experience to help meet business operational needs. The Department will need to strike a delicate balance between enforcement and delivering a visa application outcome in time for the Australian businesses.

If you have any questions about the 457 visa sponsorship, nomination and visa application, please contact Work Visa Lawyers to ensure your applications are prepared well before applying.

This information is accurate on 18 May 2016

Source:

  1. http://www.theaustralian.com.au/business/opinion/john-durie/small-business-angry-over-section-457-visa-delays/news-story/f53d0b941627c2403cc3abb8d014ce35
  2. https://www.border.gov.au/Trav/Work/Work/Subclass-457-Integrity-Review
  3. https://www.border.gov.au/about/access-accountability/service-standards/temporary-work-visa-processing-times
  4. https://www.border.gov.au/Trav/Work/Work-1

 

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

 

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Work Visa Lawyers March 2016 News - 457 RSMS ENS news, No Self Sponsor and more

 

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