1 July 2012 ushered in significant changes to Australia’s immigration system, impacting upon Employer Sponsored visas, Skilled visas and Business Skills visas. The Australian Government in issuing these changes is moving towards a labour-demand driven immigration model similar to that which exists in New Zealand.
Of particular note in relation to the 1 July 2012 immigration changes is the introduction of SkillSelect which is a database that enables those interested in migrating to Australia to record their details to be considered for a skilled visa. Applicants for Skilled and particular Business Skills visas will be required to lodge an Expression of Interest in the SkillSelect database and wait to be invited by the Department of Immigration and Citizenship (DIAC) to lodge a visa application.
In this article we seek to highlight the 1 July 2012 amendments to:
- Employer Sponsored visas;
- Skilled visas; and
- Business visas.
Employer Sponsored visas
Permanent Employer Sponsored visas
Not only did the 1 July 2012 immigration amendments vary the eligibility criteria for permanent employer sponsored visas, but they also resulted in the replacement of the existing visa subclasses with alternative subclasses. Specifically, the six permanent employer sponsored visas have all been superseded by the Employer Nomination Scheme (subclass 186) visa and the Regional Sponsored Migration Scheme (subclass 187) visa.
DIAC has stipulated that within the subclass 186 and 187 visas subclasses there will be three streams, specifically:
- The Temporary Residence Transition Stream which is intended for Temporary Business (Long Stay) (subclass 457) visa holders who have been employed by their employer for at least the last two years leading up to their application for a permanent employer sponsored visa, and whose employer wishes to offer them a permanent position in that same occupation.
- The Direct Entry Stream which is intended for applicants who are untested in the Australian labour market and have not held a subclass 457 for at least the last two years, or are applying directly from outside Australia.
- The Agreement stream which is intended for applicants who are being sponsored by an employer through a negotiated labour agreement or regional migration agreement.
Visa eligibility criteria between the three streams differ.
It is also worthwhile to note the following additional changes to permanent Employer Sponsored visas:
- In terms of applying for nomination of an overseas worker for a permanent visa, employers will now need to show that the proposed salary for the overseas worker meets market salary rates. Moreover, the employer will also need to demonstrate that they meet relevant training thresholds for their Australian workers.
- The Employer Nomination Scheme Occupation List (ENSOL) has now been replaced with the Consolidated Skilled Occupation List (CSOL) which is a relatively expansive list used to determine eligible occupations for nomination purposes when making an application for a subclass 186 visa.
- For the subclass 187 visa the nominated occupations are stipulated to be ANZSCO skill levels 1-3.
- The applicant age limitation has increased from 45 to 50 for permanent employer sponsored visas, and, there is also no longer a legislative cap on age for subclass 186 and 187 visas.
- Exemptions on the basis of skills, age and language have become extremely limited for permanent employer sponsored visas.
Temporary employer sponsored visas
For the primary temporary employer sponsored visa, the Temporary Business (Long Stay) (subclass 457) visa, the most significant changes brought about on 1 July 2012 have been the following:
- The nominated occupation list for subclass 457 visa has become the Consolidated Skilled Occupation List (CSOL). This has made the transition from a subclass 457 visa to a permanent employer sponsored visa more straightforward because there is now a shared list.
- The applicant age limit of 45 has now changed to 50.
- The Temporary Income Salary Threshold (TISM) has increased from $49,330 to $51,400.
Of significant note is that employer sponsored visas, both permanent and temporary are now all required to be lodged online. Moreover, for permanent visas there is no longer an onshore/offshore distinction between the visa subclasses, meaning that permanent visas can now be lodged anywhere in the world.
As of 1 July 2012 there has been an overhaul of the Business Skills Program which has been replaced with the Business Innovation and Investment Program. The Business Innovation and Investment Program is accompanied by a number of amendments to the former Business Skills Program. The most notable reforms are as follows:
- The 13 visa subclasses in the former Business Skills Program have now been replaced by three, namely the Business Talent (subclass 132) visa, Business Innovation and Investment (subclass 188) visa and Business Innovation and Investment (subclass 888) visa. We have witnessed the removal of the independent visa categories and business owner and investor visas have become streams of a single visa subclass.
- Business Innovation and Investment visas have been integrated into the Skillselect model which means that applicants must first lodge an Expression of Interest and be invited by the Government to apply for a visa.
- The three types of Business Innovation and Investment visas include the following subclasses:
- Business Talent (subclass 132) visa which is a State or Territory sponsored permanent visa for high calibre business owners and entrepreneurs. It is divided into the following streams:
- Venture capital entrepreneurs whereby applicants must have sourced $1 million in venture capital funding from a member of the Australian Venture Capital Association Limited (AVCAL), to fund the start-up or product commercialisation of a high value business; and;
- Applicants with a significant business history whereby an applicant must be a high calibre business owner who will enter into business in Australia. It is a requirement that the applicant be under the age of 55, have net business and personal assets $1.5 million, and, an annual turnover of their business of $3 million.
- Business Innovation and Investment (subclass 188) visa which is a State or Territory sponsored provisional visa that has no minimum English requirement, and is valid for four years. It is required that applicants must have a points tested pass mark of 65, submit an Expression of Interest in SkillSelect and be less than 55 years of age (although it is possible, with the support of the nominating State or Territory, to seek a waiver of the age requirement). The subclass 188 visa contains two streams, being the business innovation stream and the investor stream.
- Business Innovation and Investment (subclass 888) visa which is a State or Territory nominated permanent visa that in contrast to the subclass 188 visa, is not points tested and does not require an Expression of Interest in SkillSelect. The subclass 888 visa also consists of two streams, being the business innovation stream and the investor steam.
To be eligible for the business innovation stream applicants must:
- Meet the requirements for owning and operating a business in Australia while on a provisional visa;
- Have a business turnover of $300 000 a year; and;
- Have two out of three of the following:
- business assets of $200 000,
- net personal and business assets of $600 000; and/or;
- employ two full-time employees.
Importantly, applicants seeking to apply under the business innovation stream must also demonstrate a genuine and realistic commitment to continue in business in Australia.
For the investor stream applicants are required to have held a designated investment for four years within the nominating State or Territory and have a genuine and realistic commitment to continuing business or investment in Australia.
In essence, the new Business Innovation and Investment Program which was brought about as part of the 1 July 2012 changes, has reduced the number of visa subclasses in this category from 13, to three, resulting in a substantial simplification of the system. These changes also illustrate the desire of the Department of Immigration and Citizenship, to continue to attract high calibre entrepreneurs and business specialists to Australia.
The major change in relation to Skilled visas is the introduction of SkillSelect, a database which requires applicants to firstly lodge an Expression of Interest in the SkillSelect Database before being invited by the Australian Government to apply for a visa. Once an applicant has been invited by the Australian Government to lodge an application (an invitation is not guaranteed), the applicant will have 60 days to lodge their visa application. Failure by an applicant to lodge an application after receiving two invitations results in that applicant being removed from the system.
The new visa subclasses for Skilled visas include the following:
- Skilled Independent (subclass 189) visa, which is a points-based visa for skilled workers who are not sponsored by an employer, a State or Territory, or a family member.
- Skilled – Nominated (subclass 190) visa, which is a points-based visa for skilled workers who are nominated by a State or Territory.
- Skilled – Nominated or Sponsored (Provisional) (subclass 489) visa, which is a points-based visa for skilled workers who are nominated by a State or Territory or are being sponsored by an eligible relative living in a designated area in Australia. This visa is valid for four years, and a visa holder must live and work in a specified regional area.
The pass-mark for Skilled visas is now 60 as opposed to the previous 65, and the maximum age for applying for a Skilled visa has become 50. Applicants are required to have at least competent English.
Of significant note is that the Australian Government is able to cap occupations at any stage in relation to Skilled visas, and therefore applicants will face uncertainty as to when they may be invited to lodge a visa application (if at all).
The 1 July 2012 amendments to the immigration system have demonstrated the Australian Government’s focus on labour-demand driven immigration to Australia. As a result of these changes, the system has undergone a simplification of various areas, best illustrated through the implementation of the new consolidated skilled occupation list (CSOL), as well as the reduction of visa subclasses in the Business Innovation and Investment Program, from 13 subclasses to three. However, the changes have also resulted in Independent Skilled migration becoming very limited, due to applicants who lodge Expressions of Interest being far from guaranteed an invitation by the Australian Government to apply for a visa. Even if a Skilled applicant is able to obtain such an invitation, there are no stipulated timeframes and therefore an applicant can never know when they will be invited to apply for a Skilled visa. This uncertainty has resulted in it becoming increasingly attractive for potential applicants to seek out an Australian employer who is willing to sponsor them for a temporary or permanent business visa.
The information on this website is intended only to provide a summary and general overview on relevant matters. It is not intended to be comprehensive nor does it constitute legal advice. You are advised to seek legal or other professional advice before acting or relying on any of the content contained in this website.