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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

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The 457 visa is the most popular employer sponsored work visa for overseas professionals and tradespeople to work in Australia. According to the latest Subclass 457 Quarterly Report for the period up to 30 September 2015, there were 14,370 subclass 457 visa applications lodged with the Department of Immigration and Border Protection (DIBP), out of which 13,240 applications were approved. This means that in the 1^st quarter of the 2015-16 subclass 457 visa programme year a total of 1,130 applications have already been rejected.

While there are various eligibility factors to consider from the employer, nominated position and visa applicant perspective, this article will focus on the application criteria of Labour Market Testing and Market Salary for the 457 Temporary Work Visa.

So what is Labour Market Testing?

Implemented in November 2013, the Labour Market Testing requirement tasks standard business sponsors to test the local labour market before hiring an overseas worker for nominated position.

The purpose of the Labour Market Testing is to ensure that available job opportunities are provided to the local workforce first before looking to sponsor an overseas individual to fill the role required.

What do you need to do to meet the Labour Market Testing Requirement?

Standard business sponsors need to record efforts and attempts to hire local Australian citizens or permanent residents. The recruitment activities need to be sufficient to justify that the local workforce cannot fulfil the requirements of the nominated position due to the lack of skills, qualifications or relevant work experience. Such recruitment efforts may include the posting of job advertisements, conducting interviews and tabulating the outcome of all applications for the advertised position.

Are there any exemptions to the Labour Market Testing requirement?

There are avenues for exemption from the Labour Market Testing. You can be exempt from Labour Market Testing for the following reasons:

Occupation Level

Occupations described by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as skill level 1 or 2

Skill level 1 occupations are occupations that require an Australia degree level qualification or at least five years relevant experience, which may substitute for the formal qualification.

Some examples of skill level 1 occupations include General Managers, Marketing and Advertising Managers, IT Managers, Farmers and Agricultural Managers, etc.

Skill level 2 occupations require an Australia Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience as a possible substitute for the formal qualification.

Some examples of skill level 2 occupations include ICT professionals such as Developer Programmers, Software Engineers, Business Professionals and Teachers.

However some skill level 1 and 2 occupations still require Labour Market Testing to be done. These occupations include positions in the engineering and nursing profession. You can refer to the list here. If you are nominating an occupation in these professions, you will need to provide evidence of Labour Market Testing.

International Trade Obligations

1. The worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
2. The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, Korea or New Zealand.
3. The worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
4. Your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager”.
5. The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

When should I conduct the Labour Market Testing?

Labour Market Testing must have been conducted within 12 months before the lodgement of a 457 visa nomination. Evidence of Labour Market Testing must be presented at the time of nomination lodgement.

Market Salary and Equivalent Employment Terms and Conditions

Standard business sponsors are required to offer employment terms and conditions that are comparable to those offered to Australian citizens and permanent residents. This is required to ensure overseas workers are not being exploited for cheap wages or long work hours.

You can be exempted from demonstrating market salary rates if the proposed annual earnings of the worker is at least AUD 250,000.

You will need to show that the terms and conditions offered to the sponsored overseas worker are of the same wages and working conditions as an Australian employee. If there are no comparable Australian employees in a similar position, the standard business sponsor should refer to relevant industrial instruments such as modern awards to determine market salary and acceptable employment conditions. The Fair Work Ombudsman (https://www.fairwork.gov.au/) is a good reference to ensure acceptable employment conditions are in place.

Market Salary and the Temporary Skilled Migration Income Threshold (TSMIT)

Although a separate requirement, the Temporary Skilled Migration Income Threshold (TSMIT) is an important consideration when determining the Market Salary for a 457 visa application. The rules in relation to the TSMIT are:

• The market salary for the position must be greater than the TSMIT
• If the market salary for the position is lower than the TSMIT then you will not be able to sponsor an overseas worker for the position under the 457 visa programme
• You cannot pay an overseas worker above the market salary rate just to meet the TSMIT

The TSMIT is currently set at AUD 53,900.

If you need further information that is specific to your business, industry or situation, please contact us to find out more details on the 457 visa application requirements.

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

The DIBP does not clearly spell out the exemption to Labour Market Testing based on skill levels of the occupation. As such there have been instances where businesses paid thousands of dollars to agencies that provide Labour Market Testing services when it was not necessary. Occupations such as Software Engineers or Marketing and Sales Managers do not need Labour Market Testing due to their occupation skill level, but businesses have paid unnecessarily to meet the Labour Market Testing requirement. Always check with an experienced Registered Migration Agent to determine if the Labour Market Testing is applicable for the position you are nominating.

While standard business sponsors are required to meet the Labour Market Testing and Market Salary requirements at the time of application, it is also important that the sponsors adhere to the employments terms and other obligations after the 457 visa is granted.

Failure to maintain such conditions can lead to monitoring and sanction penalties from the Department of Immigration and Border Protection (DIBP).

This information is accurate on 19 February 2016

Source:

1. https://www.border.gov.au/Trav/Visa-1/457-
2. https://www.fairwork.gov.au/

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 Migration Review Tribunal, 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.

This is the news that many have been waiting for. The Department of Immigration and Border Protection (DIBP) has amended English requirements for the Subclass 457 (Temporary Work (Skilled)) visas. The change will affect all new applications lodged on or after 18 April 2015, and also existing applications in progress that have not been finalised. Here are the new scores requirement:

Additionally the exemption to the English requirement has now changed to requiring an applicant to have at least 5 years of cumulative full-time study in a secondary and/or higher education institution where the instruction was delivered in English. Previously the studies needed to be completed consecutively for 5 years.

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

Along with the changes announced for the 476 and 485 visas (read the news here), the 457 visa programme now has lower English requirements as well. There are no changes to the OET test scores requirement, and CAE exams need to be completed on or after 1 January 2015.

While this will allow more applicants to meet the 457 visa requirements, it is important to know that there are other criteria that need to be fulfilled prior to lodging an application, as well as important obligations to fulfil after a 457 visa is granted, for both the applicant and business sponsor. Failing to meet the criteria and obligations thereafter may cause invite monitoring and sanctions from the Department.

Source:

1. http://www.comlaw.gov.au/Details/F2015L00563

This information is accurate on the 21 April 2015

Do you need help with an Employer Sponsored work visa application?

At Work Visa Lawyers we are experienced in assisting applicants for the Employer Sponsored work visa applications, which include business sponsorship application, nomination and visa application. We are also experienced in general skilled migration visas, business skills visas and family visas.

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

(08) 7225 5091 or +61 8 7225 5091

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

The Department of Immigration and Border Protection (DIBP) has released a response to the 457 Visa Programme integrity review report today. The majority of the changes announced are expected to be implemented over the next 6 months.

Here is a snapshot of the changes announced:

• English requirements for the 457 visa applicant will be changed to overall 5.0 for the IELTS exam, with no components scoring lesser than 4.5.
• Other English exams to be accepted for the visa application will be announced next month.
• Visa charges are being reviewed and are likely to change.
• Training Benchmarks will be replaced by annual training fund contributions to the Department of Industry (possible implementation in 2016)
• Severe penalties for Business Sponsors who receive payment from visa applicants/holders in return for sponsorship and nomination.
• Validity of Standard Business Sponsorships (SBS) to be lengthened from 3 to 5 years for existing businesses; from 12 to 18 months for new businesses.

More information will be available as the DIBP gets closer to implementing the planned changes.

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

The 457 visa programme has undergone many changes as the Department tries to strike a balance between helping Australian businesses meet short-term labour needs and protecting Australian workers and their jobs. It is important for both the Business Sponsor and Visa Applicant/Holder to take note of current developments to the 457 programme to ensure sponsorship and visa obligations are complied with to avoid violation and possible sanctions or penalties.

It is noted that the changes are being implemented in the near future and the date of effect for the changes will be crucial in relation to new sponsors, nominees (position) and visa applicants.

 UPDATE

There has been plenty of responses from various parties since the annoucement was made. Here are a few of them:

"Ensuring that visa holders and sponsors are meeting their obligations will boost business and community confidence in the 457 programme."- Kate Carnell, Head of Australian Chamber of Commerce and Industry, on the announced changes

"The labour market testing regime was always flawed and we urge the government to accept the review's recommendation that it be scrapped. The testing amounts to ineffective, time-consuming red tape. Using the scheme is costly for employers and the vast majority don't recruit 457 workers unless they absolutely have to."- Innes Willox, Head of Australian Industry Group, on the Government's decision to keep the labour market testing component

"The government's proposed changes to the 457 visa scheme will improve its operation and reduce business costs, but it has missed the opportunity to do away with redundant regulation."

"It is disappointing that on Repeal Day the government has declined to support the independent review's recommendation to abolish labour market testing. This is a classic case of a regulation that adds to business costs, without improving the integrity of the scheme."- Jennifer Westacott, Chief Executive of Business Council of Australia (BCA)

Scott Barklamb, Executive Director of policy and public affairs for Australian Mines and Metals Association (AMMA) says that foreign workers played a small, but critical, specialist role in the mining industry. He too was disappointed that labour market testing was not abolished.

National Farmers Federation (NFF) president Brett Finlay welcomed the changes and mentioned that while Australian workers were the backbone of the country's agricultural sector, some farm businesses in regional and remote areas struggled to find workers with relevant skills and relied on overseas workers to fill essential roles.

Part of the announcement also mentions the re-establishment of the Ministerial Advisory Council on Skilled Migration (MACSM), which will aid to provide labour market analysis and advice on the composition of the Consolidated Sponsored Occupation List (CSOL).

It appears that many stakeholders welcomed the changes but were concerned about the continuation of labour market testing and the proposed training fund that will replace current Training Benchmarks.

 Source:

1. http://www.immi.gov.au/pub-res/Pages/reviews-and-inquiries/government-response.aspx
2. http://www.sbs.com.au/news/article/2015/03/18/457-visa-changes-announced
3. http://www.theaustralian.com.au/national-affairs/immigration/liberals-tighten-checks-on-457-visas/story-fn9hm1gu-1227267088406
4. http://www.bca.com.au/newsroom/statement-on-the-governments-response-to-457-visa-review

This information is accurate on the 22 March 2015

Do you need help with a 457 business sponsorship or visa application?

At Work Visa Lawyers we are experienced in assisting businesses and individuals in the 457 visa application process. The process is complex with many stages of work involved and we aim to simplify the application process for you and make sure the various criteria for sponsorship and visa are met.

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

(08) 7225 5091 or +61 8 7225 5091

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