The nomination ceiling is the limit of positions that a 457 sponsor is allowed to nominate under the 457 program. 

The PAM3 - Sponsorship applicable to Division 3A of Part 2 of the Act – Sponsorship was amended on 14 February 2014 to remove references to sponsorships ending on the event of the number of approved nominations (the nomination ceiling) being reached.

Policy relating to Reg 2.63(2) now refers only to the end date of approval of the sponsorship as the expiry of the approval.

Sponsorships approved after the 14 February 2014 will be able to keep making nominations, after the requested number of nominations has been reached, as long as the three year sponsorship approval is still valid.

Sponsorship approved before the 14 February changes will still be subject to the sponsorship ceilings, and will cease once the ceiling is reached.

Reaction from Interest Groups:

Various media have reported the change as the opening of a loophole or similar negative event.

http://www.smh.com.au/federal-politics/political-news/rort-fears-as-457-visa-loophole-reopened-20140311-34kgr.html

http://au.news.yahoo.com/a/21937663/shorten-worried-about-flood-of-457-visas/

Commentary by Chris Johnston:

The removal of the Sponsorship ceiling does not mean that 457 visa applications and 457 sponsors will be without appropriate conditions and monitoring.

The nomination ceiling was only one of the many limitations and check that are part of the 457 process.  The 457 is still subject to many criteria designed to protect Australian workers and Australian wage standards.  These include that the salary for the nominated position must be above the TSMIT, which is currently $53,900.00.  Another protection is the requirement that the salary be at the Market Salary paid to equivalent Australian workers.

The Department of Immigration monitors 457 sponsors to make sure that the approved 457 conditions are met by the employer.    If breaches are found then sponsorship bars, sanctions and fines can be imposed.

The 457 ceiling has previously been introduced and then subsequently removed.  So the cycle of changes continues.

Sources:

http://www.immi.gov.au/Visas/Pages/457.aspx

Migration Institute of Australia

Warning -This information is accurate on the 16 March 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 a 457 visa?

If you require further information regarding a 457 application , either as an employer or an applicant, we can help you.

Contact us on (08) 7225 5091 or +61 8 7225 5091

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

On the 23 November 2013 the new 457 Labour Market Testing Requirements (LMT)  commenced.  The LMT requirements apply to the nomination stage of the 457 process.

The requirement under Legislative Instrument is that the period in which the advertising of the nominated position must have been, is within 12 months.

Exemptions to LMT:

There are exemptions to LMT based on:

·         occupation level

·         International Obligations.

Exemptions Based on Occupation Level:

There are exemptions for occupation that areANZSCO as Skill Level 1 or 2.

Skill Level 1 are occuptions that require an Australian Degree Level qualification or at least five years of relevant experience may substitute for the formal qualification.

Skill Level 1 occupations include:

General Managers; Farmers and Farm Mangers; Accountants; Medical practitioners; Analyst Programmer; Developer Programmer; 

Skill Level 2 are occupations that require an AQF Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience including:

Customer Service Manager; Café and Restaurant Mangaer.

Major Occupations not exempted from LMT – Engineering and Nursing

While most occupations requiring the level of education stated above are exempted from LMT, if the qualification or experiences are in the field of following groups, LMT must be done prior to lodging Nomination application.

·         Engineering (including shipping engineering)

·         Nursing

Exemptions Based on International Obligations:

There are also exemptions based on Australia’s International Trade Obligations.

These are available where 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.

The definition of ‘Executive or Senior Manager’ is given a very wide interpretation, according to the DIBP website includes:

Registered Nurse, Driller, Welder, Automotive Electrician, Motor Mechanic (General), Diesel Motor Mechanic, Motorcycle Mechanic           

See the list on the DIBP website:

http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4%20in%20the%20%E2%80%9CWho%20can%20nominate?%E2%80%9D%20section.

LMT will be necessary for Trade Level Occupations and below, if no exemptions apply:

At a practical level, this means that LMT will be necessary for trade level occupations which are ANZSCO Skill level 3  and for any occupations with ANZSCO skill levels below level 3.  For example Machinery Operators and Drivers which are Skill level 4 includes the occupation of Driller, which is on the ANZSCO.

This means that unless exemptions are available through International Obligations, LMT will be necessary for a number of occupations including: Electrician (general); Plumbers; Bakers; Painters; Drillers.

What level of LMT will the DIBP accept?

Details on the LMT expected can be found on a DIBP Q and A, which included the following:

“Q. What information do I need to provide as evidence of having conducted labour market testing?

A. You must provide information about all advertising or other recruitment efforts undertaken in relation to the nominated occupation in the preceding twelve month period. You must provide information about where those advertisements/recruitment activities took place, the dates they occurred and the geographic target audience of the advertising/recruitment efforts. You must provide information about the outcome of those activities including the number of applications received, the number of applicants hired and the general reasons why the other candidates were unsuccessful.

You can use the Domestic Recruitment Summary Table to summarise this information for the purpose of providing evidence of labour market testing with your nomination. It can be downloaded from the department’s website at http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4

Q. Is advertising in social media channels such as Facebook an acceptable form of labour market testing?

A. Use of social media to advertise a vacant position(s) is acceptable. As with all other forms of advertising or recruitment efforts, you will need to provide information about the process you undertook and the results the advertising produced.

Q. Do I have conduct paid advertising to meet the labour market testing evidence requirement?

A. No. Paid advertising will not be considered more favourably than free advertising for the purpose of evidencing labour market testing.

Q. Do I have to provide details of the recruitment process such as records of interview or copies of job applications received?

A. No.

Q. Is advertising on my company’s own website an acceptable form of labour market testing?

A. Yes.

Q. My company uses an external recruitment agency. Is this an acceptable form of labour market testing?

A. Yes, however you are still required to provide information about the recruitment efforts undertaken on your behalf and the outcome of those activities.

The Department of Immigration and Border Protection has provided a Domestic Recruitment summary Template, to assist employers with the process of supplying information about the advertising process.

Redundancies and LMT
If an Australian citizen or permanent resident has been retrenched or made redundant in your business, or an associated entity of your business, within the four months prior to lodging your nomination, you must also provide information about those redundancies or retrenchments.”

What the Government has said about the LMT for 457 visas

In a press release on the 15 November 2013, Senator Michaelia Cash, the Assistant Minister for Immigration and Border Protection, gave her summary of the governments new LMT implementation.

The following is stated:

“The government announced today it will adopt a sensible approach to the implementation of new rules requiring employers to test the local labour market before seeking to employ an overseas worker on a subclass 457 visa. …

Guidelines released by the Department of Immigration and Border Protection for labour market testing recognise a broad range of recruitment activity as being an acceptable demonstration of labour market testing, and the time period in which labour market testing evidence will be valid for will be 12 months.”

Commentary by Chris Johnston, Principal Lawyer and RMA at Work Visa Lawyers:

The Labour Market Testing as announced will add an extra layer of effort for many employers, looking to nominated a position for a 457 visa.

There are a number of exemptions, which need to be examined carefully for each potential nominated position, to determine if LMT is required.  Many conventional professions, are exempted through their AZNSCO skill level. However Engineering and Nursing occupations are not exempted and do required LMT.  The trades will be hardest hit.  But even some trade positions will be exempted, depending on where the applicant is coming from – if a World Trade Organisation company, and being sponsored by a business where there is a parent business overseas.

If LMT is required, then the requirements for advertising are relatively broad, compared to what is required for the Direct Entry RSMS 187 visa, by many Regional Certifying Bodies.

The LMT must be within 12 months of the nomination, and the ranges of types of advertising available, include any of the following, paid online or paper, through a recruitment agent, online free adverts and even adverts through a sponsors own website.

Sources:

Migration Act 1958 - Determination of Specified Period in Which Labour Market Testing Must be Undertaken - IMMI 13/136 - F2013L01953

Migration Act 1958 - Specification of Occupations Exempt from Labour Market Testing - IMMI 13/137- F2013L01952

Migration Act 1958 - Legislative Instrument IMMI 13/138 [F2013L01954]

http://www.minister.immi.gov.au/media/mc/2013/mc209591.htm

Warning -This information is accurate on the 23 Nov 2013.  

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 a 457 visa?

If you require further information regarding a 457 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.

An interesting article by Myriam Robin about 457s in WA:

http://www.smartcompany.com.au/managing-people/057723-why-small-wa-firms-are-turning-to-457-visas-we-can-t-compete-with-the-big-miners-on-wages.html

Need Help?

If you require further information regarding a 457 application or your Australian visa options you contact our offices 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.  

Scott Morrison is likely to be announced as the new Minister for Immigration.  He was the Shadow Minister for Immigration  and Citizenship from 8 up until the Federal election on the 7th September 2013.

This is what Scott Morrison has previously said in relation to:

• Skilled Migration
• 457 visas
• English language requirements

Skilled Migration:

At the Brisbane Resource Industry Migration Forum for AMMA on the 8 August 2013:

"The Coalition believes in a well run migration program that focuses on skills and creates jobs for Australians," Mr Morrison said.

Source:

http://www.amma.org.au/newsroom/media-releases/3394-coalition-s-skilled-migration-program-will-restore-business-confidence-scott-morrison

Paper by Scott Morrison to Address to the Affinity Intercultural Foundation, Sydney

Wednesday 17 July 2013.  At page 4:

“During the Howard years skills based migration increased from less than 30% of the permanent

program under Paul Keating to almost 70% by the time they left office. The Howard Government

also introduced the temporary skilled visa, the 457.

Research by Monash University showed that during the Howard years the percentage of Australians

who were concerned about immigration levels being too high almost halved, from more than two

thirds to just over one third. Over the same period our permanent immigration intake doubled.”

http://www.affinity.org.au/wp-content/uploads/2013/07/Morrison-Doing-far-more-to-build-our-nation-170713.pdf

On 457 Policy under Brendan O’Connor

Scott Morrison was highly critical of the statements made by Brendan O’Connor in relation to claimed 457 rorts.

In a radio interview on the 2 May 2013 Scott Morrison said:

 “Well this report obtained by the Coalition under freedom of information demonstrates some fairly routine housekeeping changed to the 457 scheme. 

It certainly doesn't anywhere justify the sort of inflammatory rhetoric and trash talking of skilled migration that the Prime Minster and Minister O'Connor have engaged in, nor does it in any way provide any evidentiary basis for the sort of claims they've made about 10,000 people rorting the system and so on.”

http://www.abc.net.au/pm/content/2013/s3750563.htm

At the Brisbane Resource Industry Migration Forum for AMMA on the 8 August 2013:

“Until this year the skilled migration program enjoyed bipartisan support. Labor’s attack on skilled

migration through the measuresintroduced to choke the 457 migration program with union red

tape was nothing more than economic vandalism,” he said.

http://www.amma.org.au/assets/media/2013MediaReleases/Aug/MEDIA%20RELEASE_Coalitions_killed_migration_program_will_restore_business_confidence_Scott_Morrison.pdf

Skilled Migration and English Language Requirements

On English Language Testing:

Paper by Scott Morrison to Address to the Affinity Intercultural Foundation, Sydney

Wednesday 17 July 2013.  At pages 6 and 7:

“IELTS is a quality program – used by more than 6,000 organisations across 135 countries, including

immigration departments and authorities in Australia, Canada, New Zealand and the UK. IELTS

conduct around 1.9 million tests per year.

But we must be wary of creating a closed shop on English language testing or having English

language testing used as a non-tariff barrier by trade unions trying to crash the skilled migration

programme as an industrial tactic.

We should be moving towards a more competitive framework.

Australia needs to have the capacity to have progressive levels of English language capability. We

also need greater flexibility; the notion of having an English language test that is fit for purpose,

instead of a one size fits all.

There can be no argument that English skills are important. They are critical not only for personal

safety but also for participation and social cohesion.

English language skills are important to ensure awareness of compliance with occupational health

and safety rules. They are also important in allowing a visa holder to communicate and connect with

their employer, their colleagues and their community.

Temporary migrants, whether they are students or workers, can be highly vulnerable to abuse. An

understanding of English helps them access services and understand the protections available to

them, whether they are trying to rent a flat, understand the terms and conditions of their

employment, open a bank account or take out a loan.

The United Kingdom accepts over 30 language assessment systems in addition to the IELTS.

One of those providers is the renowned Cambridge English Language Assessment – formerly the

ESOL – with 4 million candidates sitting the tests in 130 countries.

The rationale behind Cambridge is that “tests need to be fit for purpose, offering users a range of

solutions that meet diverse needs”.

The level of language skills required of someone applying to come to Australia should also take into

account how long they intend to stay.

We also need more than a one-off time freeze snapshot. If a person has been living, working and

actively engaging in Australia over a number of years, it is in their interests as well as that of the

community that as their active engagement grows, their level of proficiency does not stay static;

ideally it would develop and improve over this time.”

The 457 and English Language Testing:

In an address to the National Press Club Mr Morrison said:
"There is also a need to revise the English language test that now requires a score of at least five in all four categories of the IELTS test," he told the NPC.

"These tests can be used a little like a non tariff barrier to trade by unions seeking to crash the system as an industrial system."

Source: article by  Malcolm Farr, National Political Editor, 30 March 2011, news.com.au

Comments by Chris Johnston Principal of Work Visa Lawyers:

The information above is statements made by Scott Morrison in the lead up to the 2013 elections .  The extent to which promises made prior to an election will result in government policies is an unknown.

In relation to 457 visas, it is clear that Scott Morrison is a critic of the 457 policies when he was a shadow Minster. 

The open question is whether the 457 labour market testing measures will come into effect.   The relevant Legislation is the Migration Amendment (Temporary Sponsored Visas) Bill 2013.  The legislation will come into effect within 6 months of the Act receiving royal assent and the last day for this to happen would be the 29 December 2013.

The Migration Amendment (Temporary Sponsored Visas) Bill allows for occupations to be exempted from LMT.  The new Coalition Government could chose to make a large range or all occupations exempted from LTM, to avoid the LMT legislation having any practical effects.

Sources:

AMMA Media Release, 8 August 2013

http://www.amma.org.au/newsroom/media-releases/3394-coalition-s-skilled-migration-program-will-restore-business-confidence-scott-morrison

http://www.affinity.org.au/wp-content/uploads/2013/07/Morrison-Doing-far-more-to-build-our-nation-170713.pdf

http://www.abc.net.au/pm/content/2013/s3750563.htm

Article by  Malcolm Farr, National Political Editor, 30 March 2011, news.com.au

Do You Need Help in Relation to Australian Visas?

If you require further information regarding Australian Visa application charges or your Australian visa options you contact our offices on (08) 7225 5091 or +61 8 7225 5091  

This information is accurate on the 09 September 2013. 

Here are some of the changes introduced from the 1 July 2013 that are important to 457 visa applicants:

English Requirements now more difficult for many

English levels of Functional English must now be proved for all levels of occupations nominated from the CSOL:

-      an International English Language Testing System (IELTS) test score of at least 5 in each of the four test components of speaking, reading, writing and listening, or

-      a score of at least 'B' in each of the four components of an Occupational English Test (OET).

Prior to 1 July, the requiements only applied to trade level position such as cook, baker and mechanic.  Now the apply to all positions on the CSOL, nominated for a 457. For example, now Civil and Mechanical Engineers, Marketing Specialists and Software Engineers.

TSMIT Up

TSMIT is now $53,900 and all nominations must be paid TSMIT or higher.  Please note, that Market Salary is also a relevant guide for the amount to be paid to the nominated position.

Market Salary Exemption Up

Market Salary – the exemption from Market Salary requirements has been increased from $180,000 to $250,000.

More Discretion to Refuse based on Skills and Qualifications

The Department has strengthen the skills requirements for Subclass 457 visas by requiring the Subclass 457 visa applicant to have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

In my opinion this will help make the Department feel more comfortable in refusing an application without requesting further information.

Genuine Test – More discretion to refuse

Introduction of a ‘genuineness test’ to be conducted by departmental officers to ensure that the position associated with the nominated occupation is genuinely required to address skills shortages in Australia.

Condition Requiring Licencing Post Grant

457 visa holders must seek to obtain any mandatory registration, licence or membership for their occupation within 28 days.  The licensing requirement will effect occupations such as electricians.

All Electronic Lodgement

All applications for standard business sponsorship, approval of nominations and Subclass 457 (Temporary Work (Skilled)) visas to be lodged electronically.  The backup system to this is said to be lodgement by email. My comment, this sounds like it could be a real mess when the system crashes, like it does the last day of the program year almost every year late June.

Workers have more time to find another sponsor after ending employment

Workers have been given more time to find another sponsor after ceasing employment.  This time have been extended from 28 days to 90 days.

Fees Up

457 Sponsorship remains the same at $420

457 Nomination from $85 to $330.

457 Visa applicant – primary applicant now termed base applicant from $455 to $900

457 Visa applicant, secondary applicant over age of 18 from $0 to $900

457 Visa applicant, secondary aged under 18, from $0 to $225

New fee - Subsequent temporary application fee will apply in some circumstances, $700 per applicant.

Refer to this blog for an example of 457 fee costs post 1 July 2013.

http://www.workvisalawyers.com.au/news/entry/explanation-of-new-australian-visa-charges-system-based-on-number-of-applicants-and-the-new-subsequent-temporary-application-charge.html

Source: DIAC website

http://www.immi.gov.au/skilled/changes-457-program.htm

Need Help?

If you require further information regarding a 457 application or your Australian visa options you contact our offices on (08) 7225 5091 or +61 8 7225 5091  

This information isaccurate on the 30 July 2013.  DIAC will changes visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application.