Key Requirements of the new TSS visa

This month marks a substantial change for Australian temporary skilled work visas as the well-known and much used subclass 457 visa has now been replaced by the new Subclass 482 Temporary Skills Shortage (TSS) visa. With the TSS visa, the Australian Government has sought to split the skilled visa program into two very distinct pathways– one pathway being based on what the Government sees as “short term” skills, the other, based on medium term to long term skills which retains a pathway to permanent residency for the visa holder and more closely resembles the old 457 visa.

Essentially, the Australian Government has now made created a new type of skilled worker in Australia – someone with required skills who can stay and work for up to two years (with the potential to renew for a further two years), but whose skills are not considered critical enough by the Government to justify eligibility for permanent migration. For businesses who are unable to secure local labour for positions which fall into this new “short term” category, it remains to be seen whether they will experience difficulties filling those skill gaps now that the short term visa does not carry the promise of permanent residency in Australia.

The new regulations came into effect on 18 March 2018 and contain numerous details – this article focuses on the main requirements of the TSS visa as well as significant changes from the previous skilled temporary work visa program.

Visa Stream

Visa applicants will still need to be nominated by a sponsoring employer. The TSS visa has three streams:

Short term: Sponsors must nominate an occupation from the Short-Term Skilled Occupations List (STSOL). Visa holders in this stream can only be employed for two years and can be renewed onshore only once (or up to four years if this would be inconsistent with an international trade obligation). After this, the applicant must be offshore to apply for another short term TSS visa. Additionally, visa applicants must satisfy a genuine temporary entrant (GTE) criteria, which will involve an assessment of circumstances, immigration history, previous compliance with visa conditions and any other relevant matter.

Medium term: Sponsors must nominate an occupation from the Medium and Long-term Strategic Skills List (MLTSSL). In this stream, a higher level of English proficiency is now required (unless an exception applies), such as a 5.0 in each test component of the IELTS.

Labour agreement: Employers can nominate an overseas worker pursuant to a labour agreement with the Commonwealth, where there is a need that cannot be met locally and the visa programs are not available.

KEY DIFFERENCE: The Medium Term Stream is similar to the old 457 visa, however, visa holders must now be employed for three years, not two, before being eligible to apply for permanent residency and must meet more stringent English language criteria. The Short Term stream is markedly different to the 457 visa, being just a two year visa with no permanent residence pathway. Visa applicants for this stream also have the added hurdle of establishing the GTE criteria, which may be increasingly difficult to establish if the applicant is re-applying for a further TSS short term visa.

Labour Market Testing

Labour Market Testing (LMT) is mandatory unless international trade obligations apply. Nomination applications lodged on or after 18 March 2018 LMT must have occurred in the 12 month period immediately before the nomination is lodged. For nomination applications lodged on or after 18 June 2018, LMT must have occurred during the 6 months immediately before the nomination is lodged.

KEY DIFFERENCE: Previously, there were numerous exemptions to the LMT requirement, including professional and managerial level occupations.

Work Experience

TSS visa applicants are required to have worked in the nominated occupation, or a related field, for at least two years. Policy guidance is yet to be released however it is expected that this requirement will be applied with some flexibly, for example, employment gained as part of the research components of a Masters and/or PhD may be considered as work experience for relevant occupations, such as medical and research occupations.

KEY DIFFERENCE: Previously, professional and managerial positions generally required a bachelor degree or higher OR 5 years relevant work experience.

Annual Market Salary Rate

The previous market salary rate requirements have been reformulated around the concept of annual market salary rate (AMSR). It means that an employer who is sponsoring a worker must pay that person at least the same as an Australian citizen or permanent resident earns, or would earn, for performing equivalent work on a full-time basis in the same workplace in the same location. The AMSR must equal or exceed the temporary skilled migration income threshold (TSMIT) which remains at $53,900.

KEY DIFFERENCE: This provision is intended to achieve the same outcome as the previous “market salary rate” which applied to the 457 visa, with an extended definition of AMSR now having been provided.

Training Requirements

The Department of Home Affairs (the Department) previously flagged that Training Benchmark A and Training Benchmark B would be replaced by mandatory contributions by Sponsors to a “Skilling Australians Fund”. However, this change has not been implemented and Training Benchmark A and Training Benchmark B still apply. The Government has introduced a new legislative instrument which defines the term “employee” by reference to the Fair Work Act 2009.

KEY DIFFERENCE: No significant changes from the previous requirements as yet.

Condition 8607

Condition 8607 includes the same provisions as condition 8107 (the visa holder can only work for the nominating employer), and adds a provision that requires the visa holder to work only in the occupation in relation to which the Subclass 482 visa was granted.

KEY DIFFERENCE: a TSS visa holder must obtain a new nomination to change occupations.

The New Landscape of Temporary Employer Sponsored Visas

In this time of significant legislative and policy change to temporary employer sponsored visas, it is important for employers and visa applicants to obtain professional and up to date advice regarding TSS sponsorship, nomination and visa applications and determine the most appropriate Australian immigration strategy for each individual case.

The visa processing environment is also changing rapidly and obtaining the correct advice on visa selection is crucial to the successful outcome of a visa application.

For advice regarding Australian work visas, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

Disclaimer:

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.