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Many employer-sponsored visa holders experienced changes to their employment as a result of the COVID-19. These unprecedented times have presented many challenges for these visa holders, including questions as to how their visas will be affected by these changes.
We have compiled a list of Frequently Asked Questions to answer some of these questions.
If you are looking to apply for a TSS subclass 482 visa, subclass 457 visa, ENS subclass 186 Visa or subclass RSMS 187 visa subclass and you have all of your documents ready to lodge the application, you can avoid the Skilling Australians Fund by lodging it on or before 11 August 2018.
If you still have advertising to complete or have too much work left to do to complete the nomination application before 12 August 2018, it is likely that you will need to pay a contribution to the Skilling Australians Fund Levy.
The Skilling Australians Fund will affect any applications lodged on or after 12 August 2018.
This is going to cause significant additional charges to employers on top of the current application charges.
As we have previously written about, the Skilling Australians Fund is a levy which will be imposed on applications to nominate a foreign worker under a subclass 482, subclass 457, subclass 186 or subclass 187 visa.
The size of your businesses contribution to the levy will vary based on the particular application, as well as the size of the business.
If you are a small to medium business with turnover of less than $10,000,000, your contribution will be less than for a large business with yearly turnover of $10,000,000 or more.
The following kinds of applications are exempted from paying the relevant contribution charge:
For any of the above applications, the contribution amount is cut down to $0.
Any applications lodged before 12 August 2018 will still need to continue to meet their training obligations under the current scheme. If you are currently sponsoring an employee or are planning to lodge a nomination before 12 August 2018, you will need to continue to keep clear records and spend:
For nominations on or after 12 August 2018, you will no longer need to meet the training benchmarks. It is important to be careful, however, if you have a blend of pre- and post-SAF nominees. If you have an employee who is looking to use the Temporary Residence Transition stream of 186/187 for a permanent application after holding a 457/482 which was nominated pre-SAF, you will need to show at the time of application that the training benchmarks have been met for all the sponsorship years.
There may be some cases of employers with a large payroll and low utilisation of the employer-sponsored migration scheme where the replacement of the Training Benchmarks with the Skilling Australians Fund Levy will bring an advantage.
No. Even if they want to, the SAF Levy Contribution has been added to the list of costs which cannot be recovered or transferred to anyone other than the nominating entity (the sponsoring business or organization).
While a lot of the focus is on the Temporary Skills Shortage subclass 482 visa, if you are nominating an employee who already holds a subclass 457 visa and is moving to you from their previous employer, you will still need to contribute to the Skilling Australians Fund Levy.
There is an interesting provision in the Instrument which has provided the date for the Skilling Australians Fund to be brought in. It says that if section 3 of the Migration (Skilling Australians Fund) Charges Act 2018 does not commence (as it is always possible that things might change), then these regulations will not commence either.
If you are considering nominating an employee, it is important that you keep a very close eye on news about the Fund as the 12 August 2018 draws nearer.
With the increasing financial friction to nominating an employee for an employer-sponsored visa, it is likely that we will continue to see the number of applications under this stream decrease, even faster than we have previously noted.
I expect that the introduction of the Skilling Australians Fund on 12 August 2018 is likely to reduce even further the already restricted number of applications we are seeing for employer-sponsored visas. A lot of applications will probably not go ahead because of the Skilling Australians Fund.
While the Department have projected high expected revenue from this levy, the decrease in the number of applications is likely to strongly affect this. These estimates may be out by up to 50%-75% due to the effect of dicincentivisation not being accounted for.
Sources:
Work Visa Lawyers has been in touch with an employer who is looking for an experienced motor mechanic to join his business. Please find details about the opening below:
The position is located in regional South Australia and the employer is willing to sponsor under a 457 visa arrangement.
If you think that you meet the requirements above please email This email address is being protected from spambots. You need JavaScript enabled to view it. and we will provide you with the employer's contact details. You will then need to contact the employer directly and undergo a standard interview process with the employer.
Work Visa Lawyers does not guarantee an employment or visa outcome with regards to this job opening.
Good luck!
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 employment — 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:
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
or This email address is being protected from spambots. You need JavaScript enabled to view it.
An article in The Australian today has reported that the Health Department submitted an unpublished submission to the Department of Immigration and Border Protection (DIBP) that recommended for 41 health occupations to be removed from the Skilled Occupations List (SOL).
“Overseas-trained medical practitioners would no longer be granted visas to work in Australia, under a contentious proposal from the Health Department that heralds the end of the nation’s shortage of locally trained doctors.”
“Visa plan to stop foreign doctor influx”, Sean Parnell, Health Editor, The Australian, 9 August 2016
Among these 41 health occupations are:
- General Practitioners
- Anaesthetists
- Cardiologists
- Paediatricians
- Psychiatrists
- Surgeons, General or Specialists
and others.
While the recommendations were not accepted by the Australian government before the Australian general elections, it is reported that the recommendations might be reconsidered in the next few months. Suggestions by the Health Department earlier in the year resulted in the removal of the following from the SOL:
- Dental Hygienist (ANZSCO 411211)
- Dental Prosthetist (ANZSCO 411212)
- Dental Technician (ANZSCO 411213)
- Dental Therapist (ANZSCO 411214)
The article also reported that at the end of March 2016 there were 2155 General Practitioners and 1562 Resident Medical Officers who were holding visas in Australia (implying they are non-citizen arrivals who are working in the health industry). They were followed by Occupational Health and Safety Advisers at 130 visa holders and Psychiatrists at 100 visa holders.
Sources:
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
The SOL is a list of occupations that are suitable for applying the Skilled Independent subclass 189 visa under the General Skilled Migration programme. The removal of the 41 health occupations mentioned above will mean that overseas health professionals will need to seek state, territory or employer sponsorship to move and work in Australia. The removal of the occupations from the SOL list will not completely stop health professional from moving to Australia, unless the occupations are also removed from the Consolidated Skilled Occupations List (CSOL).
While the Australian Medical Association (AMA) and Rural Doctors Association (RDA) argue that there are many Australian medical graduates who cannot find a position in the Australian health system, there are strong arguments that overseas trained medical professionals are required to provide basic health services to a growing and ageing population, especially in the regional areas of Australia.
The removal of health professionals from the SOL will also create setbacks in the plans of many small to medium private medical practices. Many of these medical practices are unable to find an Australian medical professional to fill positions because of the location of the medical practice. Skilled Independent visa applicants from overseas are one group of health professionals that can help fill in the shortage in such areas, providing necessary health care to local Australian residents.
This news has been discussed among Registered Migration Agents and it was reported that a general practitioner from New Zealand has received a letter stating Medicare will stop issuing Medicare provider numbers to overseas trained medical practitioners in 2 years time because there are too many local medical graduates. This would be a major disincentive for medical practitioners who migrated to Australia from overseas.
This information is accurate on 9 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
or This email address is being protected from spambots. You need JavaScript enabled to view it.
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:
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
or This email address is being protected from spambots. You need JavaScript enabled to view it.
Happy New Australian Migration Programme Year 2016-17!News for Accountants, Registered and Enrolled Nurses, Student Visas and more!
The 1st of July each year ushers in the new migration programme year for Australia. Here are some of the highlights of the past programme year in 2015-16 and what to look forward to in 2016-17.
Student Visas to be reduced to TWO categories
From 1 July 2016 student visas will be reduced to 2 categories to simplify the application procedure and processing of student and student guardian visas. All student and student guardian visa applications not lodged or paid will be removed from the online system. New application forms will need to be completed for applications lodged on or after 1 July 2016.
The financial capacity requirements will be increased on 1 July 2016 as follows:
Student: $19,830
Student Guardian: $19,830
Spouse or de-facto partner of student: $6,940
Any dependent children: $2,970
For more detailed information you can refer to our earlier articles here and here.
Processing times for Partner Visas and RSMS Visas getting slower
During the 2015-16 programme year it has been noted that processing times have gotten longer for partner and employer sponsored RSMS visa applications. This has created a lot of frustration for applicants but the delay in processing also means that applicants need to ensure the visa criteria are met at the time when the case officer starts to process the visa application.
In the case of a partner visa application where a case officer is allocated only 14-18 months after lodgement, the case officer will usually ask for evidence to show that the relationship is still genuine and ongoing 14-18 months after the lodgement of the visa application. This means that the applicant and partner should continue to collect and compile evidence of their relationship even after the application was lodged.
Work Visa Lawyers advises applicants to be diligent and patient in waiting for the visa outcome as there are no signs that processing times will be getting shorter.
New Occupation Lists (SOL & CSOL) and Occupation Ceilings for SkillSelect
The Department of Immigration and Border Protection (DIBP) has released the occupation lists for the programme year 2016-17. The new Skilled Occupation List (SOL) and Consolidated Skilled Occupation List (CSOL) did not provide any surprises.
Occupations moved from SOL to CSOL
233611 Mining Engineers (excluding Petroleum)
233612 Petroleum Engineers
234912 Metallurgists
251311 Environmental Health Officers
251312 Occupational Health & Safety Advisers
411211 Dental Hygienists
411212 Dental Prosthetists
411213 Dental Technicians
411213 Dental Therapists
Occupations added to the SOL
251912 Orthotist or Prosthetist
252711 Audiologists
For more details about the SOL and CSOL, please refer to our article here.
Occupation ceilings were also announced by DIBP for the new programme year. An occupation ceiling is a limit on the number of invitations that can be issued through SkillSelect each year.
An occupation ceiling is applied to:
You won’t be invited to apply for one of these visas if your occupation has reached its ceiling.
From the planned occupation ceilings the following are noted:
For more details about the occupation ceilings and what it means for you, refer to our article here.
Confusion to Occupation Ceilings numbers for Accountants
There was some confusion earlier as the occupation ceiling for Accountants were listed at 4777 places. This has since been clarified by the Migration Institute of Australia (MIA) to be inclusive of all other programmes, such as employer sponsored visas. For SkillSelect the places for Accountants are now listed at 2500 places.
Based on Invitation to Apply (ITA) selection results the points required to receive an ITA as an Accountant remain high with a minimum requirement of 65 points.
ANMAC accepts PTE Academic and TOEFL iBT for skills assessment English requirements
From 1 July 2016 the Australian Nursing and Midwifery Accreditation Council (ANMAC) will accept PTE Academic and TOEFL iBT English test results for the purposes of skills assessment. More information is available here.
Visa scams in the media
Australian visas have been in a bad spot in the past year, with news media reporting abuses by employer sponsors and visa applicants on temporary work visas and student visas. From the 7-Eleven reports to suspicious education institutes and most recently the alleged corrupt activity within the DIBP, the image of the Australian migration systeme has perhaps been more negative in recent times.
This week there has been the release of an investigation by 7.30 and Fairfax media in relation to allegations that the "Immigration Department chief Michael Pezzullo has referred 132 cases of suspected corruption inside the department to the national corruption watchdog".
The scandals regarding the exploitation of student visa holders and other negative finding is having effect on the visa processing side of things. The temporary work visas such as the 457 visa and other employer sponsored visas such as the RSMS subclass 187 visa are being assessed in great detail by the Department.
Changes have also been introduced to the employer sponsored visa programme, such as introducing criminal and civil charges for abuse of the programme. It is advised that the visa applications submitted should be complete and supported by sufficient evidence to prevent possible delays or refusal.
Sources:
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
The new migration programme year is perhaps the best time to submit a visa application. Planning numbers and occupation ceilings are not filled, while state sponsorship places are usually available (but not for long) for various occupations. If you have a visa application prepared, it is best to submit it as soon as possible in the new financial year.
Also to note is that there has not been any visa application fee (VAC) increases as of 1 July 2016. This may change once the Australian elections are complete and parliament resumes to pass bills to increase visa application fees. However you are advised to ensure your application is complete and meets all criteria before lodgement. You can engage the services of a Registered Migration Agent in preparing a complete visa application.
This information is accurate on 1 July 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
or This email address is being protected from spambots. You need JavaScript enabled to view it.
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:
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:
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.
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 1st 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
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 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:
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.
In our earlier blog looking at the year 2015 in review, it was mentioned that the Department of Immigration and Border Protection (DIBP) has introduced measures to penalise activities and arrangement in relation to “Payment for Visas”. On 4 December 2015, the Australian Federal Parliament passed the bill for the Migration Amendment (Charging for a Migration Outcome) Act 2015. New criminal, civil and administrative sanctions, and visa cancellation provisions were introduced on 14 December 2015.
The range of actions that can be taken by the DIBP extends to visa applicants, business sponsors and related third parties (such as migration agents) who participate in a payment-for-visa scheme. The severe penalties include:
The “payment” in reference includes benefits other than monetary payments. This new legislation will affect the 457 work visa, the Employer Nominated Scheme (ENS) 186 visa and the Regional Sponsored Migration Scheme (RSMS) visa.
Will it affect my 457 visa?
Yes it could if you paid your sponsor! If you paid for sponsorship your visa could be cancelled! The new Bill introduces a discretionary power to consider cancellation of a temporary or permanent visa where the visa holder has engaged in a "payment for visa" conduct.
You can obtain more information about the newly announced measures at the DIBP webpage here.
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
The measures introduced are part of the recommendations that were tabled in the 457 visa programme integrity review released by the DIBP. The penalties and powers granted to the DIBP demonstrate a strong intention to protect the integrity of the temporary work visa programme.
Even without the fear of punishment and penalties, individuals and businesses should be vigilant and avoid visa scams as they become a source of exploitation of the system and genuine overseas workers. The power to cancel a visa that was granted based on a payment-for-visa scam is a concern for those who have already paid for sponsorship before the Bill came into power.
This information is accurate on 18 December 2015
Source:
1. http://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 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
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As the year rolls to a close and the majority of our readers look forward to spending some time at the beach (as above) or some other well-deserved rest and relaxation activity, it is also time to look back at the year and recap what has been developing in the Australia migration regulations.
The Headlines You Need To Know
The 457 Temporary Work Visa is undergoing continuous change due to two factors:
1) The 457 Visa Programme Integrity Review Report
Released by the Department of Immigration and Border Protection (DIBP) on 10 September 2014, the review report made 22 recommendations to the 457 visa programme. Some of the recommendations have already been implemented while some will be rolled-out in the first half of 2016.
2) Temporary Work Visa Exploitation in Recent Media
Most of us would have heard about the exploitation of working visa holders by 7-Eleven franchises across Australia. This has alarmed the Department in stepping up on checking the integrity of business sponsorships and monitoring both the business sponsor and visa holder in relation to the obligations of the 457 Temporary Work Visa.
So what are the changes in place?
The following is a list of changes that have happened or are expected to happen in time:
English Requirements
The English requirements have been lowered as part of the Review Report recommendations. Here are the new requirements:
English test | Minimum band score | Minimum scores for test components | |||
Listening | Reading | Speaking | Writing | ||
IELTS test | Overall band score 5.0 | 4.5 | 4.5 | 4.5 | 4.5 |
OET | - | B | B | B | B |
TOEFL iBT | Total band score 36 | 3 | 3 | 12 | 12 |
PTE | Overall band score 36 | 30 | 30 | 30 | 30 |
CAE | Overall band score 154 | 147 | 147 | 147 | 147 |
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.
Training Benchmarks
Training Benchmarks are a key criteria for business sponsors to meet and uphold as part of the 457 sponsorship requirements. It is recommended that the current benchmarks will be replaced by annual training fund contributions to the Department of Industry. This is likely to be implemented in 2016.
Validity of Standard Business Sponsorships (SBS)
Companies must apply to be an approved Business Sponsor before they can sponsor overseas workers for a 457 Temporary Work Visa. The validity of Standard Business Sponsorships (SBS) has been lengthened from 3 to 5 years for existing businesses; and from 12 to 18 months for new businesses which have operated for less than 12 months. The SBS will be valid for 6 years if you are an Accredited Sponsor.
Penalties for Business Sponsors who Receive Payment in Return for Sponsorships
On 4 December 2015, the Australian Federal Parliament has passed the bill for the Migration Amendment (Charging for a Migration Outcome) Act 2015. This is specifically targeting businesses which have sponsored overseas workers in a non-genuine capacity and received payments in return for the sponsorship. Such actions will now incur a civil and criminal penalty. A third party such as employment placement agencies, migration agents and so forth can also be charged under the offence. The severe penalties include:
The Bill also allows the Department to consider visa cancellations where the visa holder has engaged in a 'Payment for Visas' conduct.
Additional Information Required During the 457 Visa Nomination Process
As of 20 November 2015, the Department is now requiring businesses to provide the names of the owners, directors and major shareholders of the business as part of the application process.
This latest requirement was introduced probably to identify applications where "self-sponsorship" for the 457 visa is being done. Self-sponsorship is when businesses sponsor one or more of the owners for a 457 visa.
What else can we expect to happen for the 457 Visa Programme?
As mentioned there were a total of 22 recommendations made in the final report of the integrity review. We expect more changes to be introduced in the first half of 2016 and perhaps at the beginning of the new fiscal year in July 2016.
The Department seems to be heading into the direction of increased and more detailed checks of the 457 sponsorship, nomination and visa application process. It is expected that there will be more monitoring of 457 business sponsors and visa holders to ensure compliance and fulfilment of the obligations of the visa.
Meet us during the weekend!
Work Visa Lawyers is pleased to announce that we will be taking appointments on the weekend of 19 and 20 December 2015. December is the busy month when many visa applications are lodged and visa issues resolved. As such, Principal Migration Agent and Lawyer, Chris Johnston has made himself available for consultation during the weekends. We understand visa matters may be urgent at this time of the year and would like to assist as many applicants as possible.
Appointment places are LIMITED so contact us as soon as possible to schedule your appointment.
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Call: +61 8 8351 9956
Season's Greetings from All of Us at Work Visa Lawyers!
All of us at Work Visa Lawyers would like to take this opportunity to wish everyone a
Wonderful, Merry Christmas and Happy New Year!
Best wishes and have a great year ahead!
Do you need help or more details about your situation?
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) 7225 5091 or +61 8 7225 5091
or This email address is being protected from spambots. You need JavaScript enabled to view it.
What is the Australia 457 Work Visa?
The Temporary Work (Skilled) visa (subclass 457), popularly referred to as the “457 visa” is the most common temporary work visa for Australia. You can apply for the 457 visa if you are sponsored by a company to work in Australia. Here is an overview of what the 457 visa allows you (and your family – partner and children) to do in Australia:
Live in Australia for a period of up to 4 years
Work for the sponsoring company for up to 4 years
Travel in and out of Australia repeatedly for a period of up to 4 years
Study in Australia for the period of the visa validity
You (and your family) must have your own private health insurance for your stay in Australia
While it sounds straightforward, the 457 visa comes with its strict requirements and obligations on both the sponsoring business and the sponsored 457 visa applicant. As such Work Visa Lawyers is pleased to provide an updated “10 Things You Need to Know for the 457 Visa”.
The 10 Things You NEED to Know to Apply for a 457 Visa
The Three Stages of the 457 Visa Application
There are three stages to the 457 visa application, namely:
Company applies to be an Approved Business Sponsor
The Approved Business Sponsor Nominates a Position for Sponsorship
The visa applicant applies for the 457 visa to work in the Nominated Position
What are Training Benchmarks? How do you meet the requirements?
Training Benchmarks are requirements that need to be fulfilled by the company who is applying to be a business sponsor. The requirements were introduced to ensure local Australian workers are provided training to perform the work required by the company, thus reducing the dependency of the company on overseas workers.
The Training Benchmarks are as follows:
Training Benchmark A - recent expenditure to the equivalent of at least two per cent of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry as the business
Training Benchmark B - recent expenditure to the equivalent of at least one per cent of the payroll of the business, in the provision of training to employees of the business who are Australian citizens or Australian permanent residents.
If the business is new (operating for less than 12 months), an auditable training plan is required instead.
If you are unsure how to demonstrate that you have met the Training Benchmarks, please contact Work Visa Lawyers for a more detailed discussion.
Is your occupation SUITABLE for Sponsorship under the 457 visa programme?
Not all occupations are suitable for the 457 visa programme. Only occupations on the Skilled Occupation List and the Consolidated Skilled Occupation List can be nominated for a 457 visa. You can view the occupation lists here.
The most popular occupations for 457 visa sponsorship for the year 2014-2015 to 31 March 2015 are as follows:
Developer Programmer
Cook
Café or Restaurant Manager
Marketing Specialist
Software Engineer
ICT Business Analyst
University Lecturer
Management Consultant
General Practitioner
Resident Medical Officer
Chef
Sales and Marketing Manager
Accountant (General)
Mechanical Engineering Technician
ICT Project Manager
If the occupation to be nominated is not on the Skilled Occupation Lists then a Labour Agreement will be required. You can always speak to Work Visa Lawyers if you need to clarify the occupation or to learn more about Labour Agreements.
How does a business qualify to nominate an applicant for the 457 visa?
There are a number of criteria to be fulfilled by the business to become a sponsor for a 457 visa. The requirements include:
Meeting the Temporary Skilled Migration Income Threshold (TSMIT)
This is the minimum annual salary you must pay for the sponsored 457 visa worker. The TSMIT is currently A$53,900.
You need to note that if the average market salary for the position is lower than the TSMIT, you cannot simply overpay an overseas worker to enable sponsorship under the 457 visa programme.
Fulfil the Labour Market Testing (LMT) requirements
This requires the business to test local labour markets to demonstrate effort to recruit local workers before deciding to sponsor an overseas worker for the required position.
Providing Employment Terms that are equivalent to terms offered to an Australian employee
The sponsored worker must work directly for the business
The work and position must be genuinely available and relevant to the operations of the business
The requirements are complex and may vary according to different industries. Please contact Work Visa Lawyers if you need a more detailed explanation that is relevant for your business or industry.
What are the requirements for a 457 visa applicant?
The applicant needs to be nominated for a position that corresponds to an occupation listed of the Skilled Occupation Lists.
Additionally the applicant will also need to meet skills, registration, English, health and health insurance requirements for the visa application.
Skills
Applicants need to demonstrate that they have the necessary qualification (and work experience, if applicable) to perform the duties required for the nominated occupation. Many trade level positions on the CSOL will require the visa applicant to have successfully completed a TRA 457 skills assessment
Registration and Licensing
If the nominated occupation requires licensing or registration in Australia, the applicant needs to obtain the registration or licence, or demonstrate that they meet the requirements for registration or licensing in Australia.
English
Unless otherwise stated, 457 visa applicants can demonstrate meeting the English requirements for the 457 visa application with the following:
an International English Language Testing System (IELTS) overall test score of at least 5.0 with a score of at least 4.5 in each of the four test components
an Occupational English Test (OET) score of at least ‘B’ in each of the four components
a Test of English as a Foreign Language internet-based test (TOEFL iBT) total score of at least 36 with a score of at least 3 for each of the test components of listening and reading, and a score of at least 12 for each of the test components of writing and speaking
a Pearson Test of English (PTE) Academic overall test score of at least 36 with a score of at least 30 in each of the four test components
a Cambridge English: Advanced (CAE) overall test score of at least 154 with a score of at least 147 in each of the four test components
you are a passport holder from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America
you have completed at least five years of full-time study in a secondary or higher education institution where instruction was conducted in English.
You may need a higher English score if it is necessary for your registration or licensing.
An exemption to meet the English requirements is possible if the overseas worker is paid an annual salary that is more than the English language requirement exempt amount. The amount is currently A$96,400.
Health and Health Insurance
The applicant and family members will need to be in good health and also arrange for health insurance for the duration of the stay in Australia.
What are the obligations of the 457 business sponsor and visa applicant after the visa is granted?
It is critical that the 457 visa holder and business sponsor adhere to the obligations and conditions of the 457 visa when it is approved. Failure to meet the conditions will result in visa cancellations and/or removal of sponsorship status for the business.
457 visa holder obligations
You are only allowed to work for the business that sponsored you
Must start work within 90 days or arrival to Australia
Must not stop working for the employer for more than 90 consecutive days
Obtain registration or licences if necessary
Maintain adequate health insurance for you and your family in Australia
457 business sponsor obligations
To prevent exploitation of overseas workers and to ensure skill shortages are genuinely met the sponsor will need to do the following:
Cooperate with the Department for checks on compliance
Ensure employment conditions are fair
Keep and maintain records of employment for the 457 visa holder
Ensure that the sponsored 457 visa worker does not perform duties other than what is required for the nominated occupation
Do not obtain payment from the sponsored worker for the costs of the 457 visa application
Continue to meet the Training Benchmark requirements
Pay the travel costs for the sponsored worker to leave Australia when the visa validity expires
As shown there are more to the 457 visa than the initial visa application requirements. You can check with Work Visa Lawyers if you need more information about your obligations or situations such as when employment ceases, or if the business is being monitored by the Department.
Can you apply for Permanent Residence after obtaining a 457 visa to work in Australia?
After working for the business sponsor for at least 2 years, you can apply for permanent residency under the 186 Employer Nomination Scheme (ENS) or the 187 Regional Sponsored Migration Scheme (RSMS) pathway. The requirements and process of these visa applications will be discussed in a separate blog.
The 457 Visa Programme Integrity Review and the recommended changes
On 10th September 2014 the Department a final report on the review of the integrity of the 457 visa programme by an independent panel. A total of 22 recommendations were made and some of the recommendations are in fact already in place. More changes are to be expected towards the end of 2015 and beginning of 2016.
To ensure that you are informed on the ongoing changes for the 457 visa programme, check our News section and search “457” for the collection of news relevant to updates for the 457 visa programme. Alternatively you can follow us on Facebook or Twitter to receive the updates.
What are the other employer-sponsored Australian work visas?
The consideration for applicants whose occupations are not on the Skilled Occupation Lists would be as follows:
Regional Sponsored Migration Scheme (RSMS)
Sponsorship by a Labour Agreement
There is an occupation list for the RSMS Direct Entry stream and the list is long. You can check with Work Visa Lawyers to determine the suitability of the occupation for the RSMS Direct Entry.
Labour Agreements are usually a complex process and will require external and professional assistance to get one in place.
Do you need help or more details about your situation?
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) 7225 5091 or +61 8 7225 5091
or This email address is being protected from spambots. You need JavaScript enabled to view it.
From the Independent Review of the integrity of the subclass 457 visa programme completed in March this year, it has been discovered that there are employees and employers who are engaged in a “Payment for Visas” arrangement. Typically what happens is that employers are offered a payment in return for agreeing to sponsor an overseas worker to obtain a 457 work visa to enter Australia.
The Migration Amendment (Charging for a Migration Outcome) Bill 2015 will introduce fines or imprisonment for such offenders. It will become a criminal offence for a sponsor or a third party to ask for or receive a benefit from a visa sponsorship. The punishment is set to be a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual or $324,000 for a corporate body.
In addition to criminal charges, civil penalties will also be applicable to the sponsor, visa applicant or any third party who received or provided payments or benefits in relation to a sponsorship for a 457 visa. Fines are set at $43,200 for individuals and $216,000 for corporate bodies.
The negative consequence for the visa applicant is that their 457 visas can be cancelled based on discretionary powers introduced by the amendment to consider cancellation of visas. Therefore as long as you are involved in a “Payment for Visas” scheme your visa may be cancelled and you will be asked to leave Australia.
On a separate note the government has introduced more measures to educate temporary visa workers about fair working conditions and protection from abuse in Australia. Assistant Minister for Immigration and Protection, Senator the Hon Michaelia Cash issued a statement announcing the measures and also the need for overseas temporary workers to identify unfair employment conditions such as low wages, discrimination, bullying and harassment.
The Pay and Conditions Tool (PACT) is available at calculate.fairwork.gov.au and all workers can check their pay using the tool.
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
The 457 and other work visa programmes such as the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa and the Employer Nomination Scheme (ENS) subclass 186 visa have had problems such as:
Such cases used to have the Department of Immigration and Border Protection monitor and sanction the sponsoring business if they are found guilty of not fulfilling the sponsorship obligations, including offences such as deducting pay from employees for the sponsorship. With the new and tougher punishments, employers will now need to ensure that they are not abusing the system to make unlawful gains for sponsoring an overseas worker to come to Australia.
Sponsored employees should also not partake in such “Payment for Visas” arrangement as they can now be fined and have their visas cancelled by the Department. If you are caught in such a situation you need to check with a Registered Migration agent about the visa conditions and obligations you need to fulfil.
This information is accurate on 18 September 2015
Sources:
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) 7225 5091 or +61 8 7225 5091
or This email address is being protected from spambots. You need JavaScript enabled to view it.
The Australian mining and resources sector has been hit by falling mining commodity prices globally. Vacancies and jobs in the mining sector are diminishing. Many overseas engineers and other mining related professionals who were hired to work in Australia on temporary 457 work visas face the daunting prospect of having their contract terminated and asked to leave Australia. Some have come to Australia with their family and the prospect of moving the family again may be disruptive to the family’s growth, especially for the children.
There are two clear options available to an engineer or mining professional in this situation - pack the bags and head home; or look for a different Australia visa to continue living in Australia.
What are the options for a new Australia visa application?
Most mining professionals affected by the industry downturn should consider other skilled visa applications, such as Skilled Independent or Skilled Sponsored visas. These visa pathways are not reliant on an employer’s sponsorship but instead allow professionals to apply for a permanent or temporary Australian visa based on their own qualifications, work experience and English ability. This means that you can transition from a temporary 457 work visa to a permanent Australian resident visa. Mining professionals that could qualify include:
The list above is not exhaustive. You should also note that the skilled migration programme has numerous criteria so it is best that you check your eligibility first before applying.
Don’t wait until it is too late!!
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
We have had a number of professionals working in the mining industry coming to see us in relation to the situation described above. They have made a good decision. When your employment ceases while you hold a 457 visa, you may have just 90 days to do any of the following:
It is very important to take note of the 90 day period. If you were to lodge a separate visa application there may be documents or components that you may need to prepare before you can submit an application for a different visa. These documents or components could include:
Therefore TIME is really of essence in this situation. Seek advice on your options as soon as possible to avoid being unlawful by staying in Australia beyond the 90 days given. Contact Work Visa Lawyers if you are caught in such a predicament.
This information is accurate on 17 June 2015
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) 7225 5091 or +61 8 7225 5091
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:
English test | Minimum band score | Minimum scores for English test components | |||
Listening | Reading | Speaking | Writing | ||
IELTS test | Overall band score 5.0 | 4.5 | 4.5 | 4.5 | 4.5 |
OET | - | B | B | B | B |
TOEFL iBT | Total band score 36 | 3 | 3 | 12 | 12 |
PTE | Overall band score 36 | 30 | 30 | 30 | 30 |
CAE | Overall band score 154 | 147 | 147 | 147 | 147 |
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:
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:
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:
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.
Business Sponsorship • Nomination • Training Benchmarks • Nominated Position • TSMIT • Market Salary • LMT • English Requirements • From 457 to PR
The 457 visa is the most common Employer Sponsored visa for overseas workers to start working temporarily in Australia. While the 457 program has the simple objective of filling employment gaps for Australian and overseas businesses, the application process is not straightforward. Watch the video to learn more.
0:40 Number One - Three stages of the 457 application:Business Sponsor application, Nomination application (position) and Visa application.
1:17 Number Two - Sponsor must meet training requirements
1:37 Number Three - Nominated position must be on the CSOL list
2:21 Number Four - Nomination requirements include meeting TSMIT, Market Salary and LMT
3:42 Number Five - Visa applicant must have required skills and English
4:33 Number Six - There are conditions that apply to the Business Sponsor and Visa holder after grant of 457 visa
5:40 Number Seven - 457 offers pathway to Australian PR
6:03 Number Eight - Government Review and recommendations to change 457 to cut ‘Red tape’
6:38 Number Nine - Alternative visas to the 457: If your occupation is not on the CSOL
7:35 Number Ten - Do I need help to apply for a 457?
If you would like assistance with getting a visa in Australia, you can contact us via our email at: This email address is being protected from spambots. You need JavaScript enabled to view it.
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Subclass 457 visa is the most common Temporary Work visa. The duration of the visa is for up to 4 years. You can bring your family with you to Australia. Your family can live, work or study for the duration of your visa.
The first requirement to apply for this visa is a Business who is ready to Sponsor you to work for them. The Business should be able to satisfy the Standard business Sponsor requirements discussed later in the Blog. Secondly, you as an applicant should have the required qualifications, work experience and English proficiency.
1. Three stages of the 457 application: Subclass 457 is applied in three stages:
i. Stage 1 - Sponsorship: The Business has to apply for approval as a ‘Standard Business Sponsor’ to DIBP. The business will need to meet a range of criteria including active operation and Training Benchmarks.
ii. Stage 2 - Nomination: Once the business is approved as a ‘Standard business Sponsor’, a nomination application is to be lodged to the DIBP which will identify the position that is to be filled and key features of the position.
iii. Stage 3 - Visa: This is the third and last stage of the 457 application. The applicant applies for a visa and must have the required qualification or skills and English.
2. Training benchmark A and benchmark B: This is one of the requirements of the business to become a Standard Business Sponsor. The Business has to fulfil either of the two benchmarks at the time of applying for the Sponsorship application (Stage 1):
i. Benchmark A – Business has paid 2% of the total wages paid to its employees in the last 1 year to an Industry Training fund. This Industry Training Fund should be relevant to the employer’s business.
ii. Benchmark B – Business spent 1% of the total wages paid to its employees in the last 1 year to train the Australian employees. Australian employees include employees of the Business who are either Australian citizens or Australian Permanent Residents.
3. Do you have an accepted occupation?
Nominated Occupation must be on the CSOL: The occupation of the applicant should be on the Consolidated Skilled Occupation List. This list can be found on http://www.immi.gov.au/work/pages/skilled-occupations-lists/skilled-occupations-lists.aspx
Top 10 occupations for a 457 visa are:
· Cook (ANZSCO: 351411)
· Cafe or Restaurant Manager (ANZSCO:141111)
· Developer Programmer (ANZSCO: 261312)
· Marketing Specialist (ANZSCO: 225113)
· University Lecturer (ANZSCO: 242111)
· General Practitioner (ANZSCO: 253111)
· ICT Business Analyst (ANZSCO: 261111)
· Accountant (General) (ANZSCO: 221111)
· Mechanical Engineering Technician (ANZSCO: 312512)
· Customer Service Manager (ANZSCO: 149212)
There are currently 651 occupations on the CSOL. So it is worth checking if yours is on the list.
Do you need help establishing the most appropriate occupation? Call us.
TSMIT (Temporary Skilled Migration Income Threshold): This is the income threshold that is set by the DIBP. Currently the TSMIT is set at $53,900 (please check the figure before you apply as it is subjected to change). Business has to pay a yearly salary of equal to or more than this amount to the applicant to meet the TSMIT requirements.
Market Salary: Market salary is the salary that is being paid to employees with similar occupation in the market. It must be more than TSMIT. Business has to pay a salary equal to or more than the market salary to the applicant.
Please note: The salary to be paid to the applicant should be equal to or more than TSMIT and equal to or more than the market salary for the nominated occupation.
LMT (Labour Market Test) may be required: Business may be required to provide evidences that they tried to fill the nominated position with an Australian employee and that the Business advertised the position in last 1 year but could not get a suitable candidate for the position.
5. Visa applicant must have required skill and English: The visa applicant should hold skill and work experience in the nominated occupation in some cases. If the nominated occupation is a Trade occupation, applicant may require a Skill assessment from the Trade Recognition Australia (TRA). The nominated occupation may have Registration and Licensing requirements as well.
Visa applicant will need to meet English requirements or an exemption: The visa applicant is required to score 5 bands in each module in IELTS or a score “B” in each of the four components in OET. Applicant may be exempted from this requirement if:
i. Applicant is to be paid a base salary of more than the English-language-requirement exempt amount which is $96,400 per year at present (it may change in future), or
ii. Applicant holds a passport from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America, or
iii. Applicant has completed at least five years of continuous full-time study in a secondary or higher education institution in English.
There are a large number of requirements for approved 457 Business Sponsor and 457 visa holders to comply with. The conditions include:
i. Conditions applicable for business:
i. Applicant works in the nominated occupation.
ii. Business should retain all the records.
iii. Provide training to Australian citizens or permanent residents.
ii. Conditions applicable for the applicant:
i. Primary applicant can only work for the approved sponsor
ii. Secondary applicants have no work restrictions
iii. There are a limited number of occupations with exemption to work rights
iv. Must maintain adequate arrangements for health insurance
v. Must inform DIBP if applicant stops working.
The Department of Immigration and Border Protection does undertake monitoring on approved Business Sponsor. We have expertise in helping businesses respond to monitoring requirements.
Do you need help with responding to the Department regarding Business Sponsor Monitoring. Call us.
7. 457 offers pathway to Australian PR: After working with the approved Sponsor for two years, applicant can apply for a Permanent visa subclass 187 under the Temporary Residence Transition Stream. The Business Sponsor must meet all Sponsorship requirements for the two years the person is on a 457, if they want to be able to use the Temporary Transition pathway.
8. Government Review and recommendations to change 457 to cut ‘Red tape’
The Government has release a review report on the 457 program titled, Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme.
The Report contains 22 recommendations, which include the following:
· Labour Market testing requirements be abolished;
A more flexible and adaptive approach to adding occupations to the 457 list (CSOL list), due to limitations of the current ANZSCO occupations.
· That the English language requirement be amended to an average score. For example, in relation to International English Language Testing System, the 457 applicant should have an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider)
For more details on the recommendations, please go to:
If your occupation is not on the CSOL then your options may include:
1. RSMS visa – this requires that the position is a Trade or Diploma level on ANZSCO but is not limited to a list.
2. Labour Agreement – It is possible to apply for a labour agreement to get access to occupation not on CSOL or to varying other 457 condition. The Labour agreement process is usually external and would require professional assistance.
3. Partner visa - if you have an Australian Partner.
4. Student visa
This is not the full range of options, but just some of the most common.
The 457 process is complicated and the requirements are regularly changed by the Australian Government. Currently 73% of 457 visa applications are lodged by Registered Migration Agents. This is based on figures for April to June 2014.
In Australia, migration agents must be registered with the Office of the Migration Agents Registration Authority (MARA). If you choose to use a migration agent, you should use a registered migration agent.
Registration gives you protection and helps ensure people working as migration agents are aware of current laws and procedures and give correct advice.
https://www.mara.gov.au/media/337494/MAAR_Apr_Jun_2014_Web.pdf
If you require assistance with a 457 visa process then Work Visa Lawyers has a team of Migration Lawyers and Registered Migration Agents that can assist you.
Sources:
Australian Government Report:
http://www.immi.gov.au/pub-res/Documents/reviews/streamlined-responsive-457-programme.pdf
News release by Senator the Hon. Michaelia Cash:
www.minister.immi.gov.au/media/mc/2014/mc217716.htm
Warning -This information is accurate on the 28 November 2014.
DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application.
Do you Need Help with the 457 process, to be approved as a business sponsor or to get an Australian Visa for an employee?
If you require further information regarding an employer sponsored visa applications, either as an employer or an applicant, we can help you.
Our contact details are:
(08) 7225 5091 (if calling from within Australia)
+61 8 7225 5091 (if calling from outside Australia)
Email address: This email address is being protected from spambots. You need JavaScript enabled to view it.
The Government has release a review report on the 457 program titled,Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme.
The Report contains 22 recommendations, which include the following:
Comments by Chris Johnston, Lawyer and Registered Migration Agent, Principal of Work Visa Lawyers:
It is important to note, that this is a Report with recommendations, and that the recommendations have not been implemented. We will post further news soon after any of the recommendations are implemented and become 457 requirements.
Sources:
Migration Institute of Australia
Australian Government Report:
http://www.immi.gov.au/pub-res/Documents/reviews/streamlined-responsive-457-programme.pdf
News release by Senator the Hon. Michaelia Cash:
www.minister.immi.gov.au/media/mc/2014/mc217716.htm
Warning -This information is accurate on the 13 September 2014.
DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application.
Do you Need Help with the 457 process, to be approved as a business sponsor or to get an Australian Visa for an employee?
If you require further information regarding an employer sponsored visa applications , either as an employer or an applicant, we can help you.
Contact us on (08) 7225 5091 or +61 8 7225 5091
or This email address is being protected from spambots. You need JavaScript enabled to view it.
New employer sponsored visa Agreements for Regional Areas in Australia - News and Commentary
Designated Area Migration Agreements (DAMA) guidelines finalised:
The Assistant Minister of Immigration and Border Protection, Senator Michaelia Cash, has announced the finalisation of guidelines for Designated Area Migration Agreements (DAMAs).
A DAMA will:
· allow employers in the designated area who are unable to recruit Australian workers to employ overseas workers
· have a salary concession of up to 10% for the TSMIT (the minimum wage could be $48,510)
· not undercut Australian workers wages
· require employers to meet Subclass 457 sponsorship obligations, including meeting training benchmarks
· allow for skill and English language concessions
· allow for some semi-skilled occupations
A pilot agreement has been finalised with the Northern Territory Government.
Media responses on the DAMAs:
Here is a media report on some speculation as to the effect of the DAMAs:
Commentary by Chris Johnston:
The DAMA appears to fall within the area of Labour Agreements.
Labour Agreements have in the past taken considerable time and patience on behalf of the relevant employer to be approved. Base on previous records, the DAMAs are unlikely to lead to a flood of cheap foreign workers.
Sources:
Migration Institute of Australia
News release by Senator the Hon. Michaelia Cash:
http://www.minister.immi.gov.au/media/mc/2014/mc217447.htm
Warning -This information is accurate on the 31 Aug 2014.
DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application.
Do you Need Help with an Australian Visa?
If you require further information regarding an employer sponsored visa application , either as an employer or an applicant, we can help you.
Contact us on (08) 7225 5091 or +61 8 7225 5091
or This email address is being protected from spambots. You need JavaScript enabled to view it.
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