Year: 2023

Changes to Labour Market Testing for Subclass 482 and 494 Nominations

Posted by Rebecca Berkovic on December 29, 2023

The Australian Department of Home Affairs (DHA) published legislation on 11 December 2023 that implements several changes to the Labour Market Testing requirements under the Temporary Skill Shortage (TSS) subclass 482 and Skilled Employer Sponsored Regional (Provisional) (SESR) subclass 494 visa programs, effective immediately.

The published legislation assists sponsors by reducing the number of advertisements employers must post from three to two and eliminates the requirement for the advertisement to be posted on the Australian Government’s Workforce Australia website. These eased requirements apply to all applications filed on or after December 11, 2023, and those filed before December 11 but not yet decided.

In addition, the legislation confirms that “back-to-back” advertisements, where, for example, an advertisement is run for 21 days and then a duplicate advertisement is run for 12 days, are not acceptable. While advertisements can run in parallel and at the same time, employers must ensure that each advertisement runs for at least four consecutive weeks to meet the requirement.

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.

australian-government-new-migration-strategy

New Migration Strategy Released by the Australian Government

Posted by Rebecca Berkovic on December 14, 2023

The Australian Government released its new Migration Strategy on 11 December 2023 as part of its extensive Review of the Migration System. The long-term migration strategy aims to increase the number of permanent skilled migrants with ‘in demand skills and occupations’ to Australia, decrease the number of temporary residents and crack down on non-genuine overseas student course providers and migrant worker exploitation.

The Australian visa reforms have already begun to be introduced.

The key actions set out by the Australian Government in the Migration Strategy include the following:

1. Targeting temporary skilled migration to address skills needs and promote worker mobility

A new Skills in Demand visa with three targeted pathways, and visa settings that encourage migrant worker mobility in the labour market. New commitments include:

A new Specialist Skills Pathway to make it easier for Australia to attract highly skilled workers, for example in the technology or green energy industries
A Core Skills Pathway to meet targeted workforce needs, with a simpler, regularly updated occupation list for the skills Australia needs
New visa settings that give migrant workers more mobility in the labour market to help tackle worker exploitation and drive productivity
Streamlined labour market testing and visa processing.

The current Temporary Skills Shortage Visa 482 will likely be replaced by a new 3-tiered system based on earnings (visas granted for up to 4 years):

Specialist Skills Visa Pathway: For highly skilled applicants earning a salary above $135,000. No occupational list is required for this pathway, and processing turnaround time is intended to be only 7 days. Capped at 3,000 places per year.
Core Skills Visa Pathway: This pathway will provide the majority of visas for the program, for applicants earning $70,000 – $135,000. Applicants are eligible based on a revised ‘skills in demand list’ developed by Jobs and Skills Australia, including trades workers.
Essential Skills Visa Pathway: A new pathway with union oversight is being planned for specific sectors, such as aged care and disability. The details including the minimum salary threshold of $70,000, are yet to be determined.

2. Reshaping permanent skilled migration to drive long-term prosperity

A commitment to explore a reformed points test for permanent skilled migration, and a new Talent and Innovation visa for migrants who can drive growth in sectors of national importance.

3. Strengthening the integrity and quality of international education

A package of integrity measures to lift the standards for international students and education providers, while ensuring graduates help meet skills shortages and do not become ‘permanently temporary’.

New commitments include:

Higher English language requirements for international students and graduates
More scrutiny of high-risk student visa applications and a $19m investment into the Home Affairs student visa integrity unit
Restrictions on onshore visa hopping that undermines system integrity and drives ‘permanent temporariness’
Strengthened and simplified Temporary Graduate visa settings
Measures to support international students and graduates to realise their potential.

4. Tackling worker exploitation and the misuse of the visa system

A comprehensive suite of legislation, powers, penalties and policies to combat worker exploitation and restore integrity to the migration system.

New commitments include:

A new public register of employer sponsors to improve integrity and support migrant worker mobility.

5. Planning migration to get the right skills in the right places

A longer-term, evidence-based approach to planning migration that closely collaborates with states and territories and ensures population planning is based on the best available population data and forecasts.

New commitments include:

A new approach to planning permanent migration over the long-term and greater state and territory collaboration on net overseas migration forecasts.

6. Tailoring regional visas and the Working Holiday Maker Program to support regional Australia and its workers

A new direction to ensure visas for regional Australia are prioritised first, and a commitment to evaluating regional migration settings and the Working Holiday Maker program to ensure migration supports development objectives in regional Australia and does not contribute to worker exploitation.

New commitments include:

A new direction to ensure regional visas receive the highest priority visa processing

7. Deepening Australia’s people-to-people ties in the Indo-Pacific

A new approach to developing people-to-people links with our region, including through a direct pathway to citizenship for New Zealanders and increased mobility with Pacific Island and Southeast Asian countries.

8. Simplifying the migration system to improve the experience for migrants and employers

A system-wide simplification agenda that will streamline visa settings, reduce visa classes and make the system easier to use.

New commitments include:

The removal of 20+ unnecessary and duplicative visas to simplify the visa system.

We will continue to update you as the new Migration Strategy is implemented incrementally by the Australian Government.

Disclaimer:

Subclass 482 and 494 Visa Sponsorship and Upcoming Fixed Term Contract Changes under the Fair Work Act 2009 (Cth)

Posted by Rebecca Berkovic on November 22, 2023

From 6 December 2023, as part of the Secure Jobs, Better Pay amendments to the Fair Work Act 2009 (Cth), employers will no longer be able to employ a worker on a fixed term contract in the following situations:

Where the employment term is for two or more years (including extensions); or
Where the employment contract may be extended more than once, whether or not the total term, is for two or more years.

It is noted that the prohibition of fixed term contracts in the above situations will apply to new fixed term contracts from 6 December 2023. The new provisions will also require review of any fixed term contracts in place prior to 6 December 2023.

It is important that sponsors of overseas employees under the Temporary Skill Shortage (TSS)(subclass 482) visa program and Skilled Employer Sponsored Regional (SESR) (Provisional) (subclass 494) visa program are aware when drafting employment contracts, which may be for the fixed period of the visa or a fixed term.

The relevant limited exception to the prohibition of fixed term contracts of “special skills” may be applicable in the case of subclass 482 and 494 visa candidates.

However, we recommend that sponsors for the subclass 482 and 494 visa programs obtain advice from an employment lawyer on the matter of fixed term contracts to ensure that the 6 December 2023 the Fair Work Act 2009 (Cth) requirements are met.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Introduction of Employer Sponsored Permanent Residency Pathway for TSS subclass 482 Visa Holders on the Short Term Occupation List

Posted by Rebecca Berkovic on November 7, 2023

The Australian Federal Government has announced that on 25 November 2023 changes to the Employer Nomination Scheme (ENS)(subclass 186) visa program will be introduced, with the reforms having the effect of broadening the permanent residency program and enabling Temporary Skill Shortage (TSS)(subclass 482) visa holders to apply for employer sponsored permanent residency earlier. A pathway to permanent residency will be introduced to allow those with occupations on the Short Term Occupation List to be eligible to apply for an ENS subclass 186 visa.

What are the reforms being implemented on 25 November 2023?

The significant reforms intended to be implemented by the Australian Department of Home Affairs (DHA) include the following:

All Temporary Skill Shortage (TSS)(subclass 482) visa holders will be eligible to apply for permanent residency through the ENS (subclass 186) visa program- Temporary Residence Transition stream, provided they meet the requirements of this visa.
As with the current ENS subclass 186 visa requirements, TSS subclass 482 visa holders will need to continue to work in the occupation nominated as was allocated for their TSS subclass 482 visa.
TSS subclass 482 visa holders will be eligible to apply for employer sponsored permanent residency through the ENS subclass 186 visa program after two years. This has been reduced from the current three year requirement.
The current limit on TSS subclass 482 visa holders with occupations on the Short Term Occupation List that can be made onshore in Australia will be removed.

How will the reforms benefit employers?

For companies sponsoring skilled overseas workers through the TSS subclass 482 visa program, currently the process of selecting the ‘nominated occupation’ for a candidate can be difficult if the employer requires a long-term arrangement and the candidate’s occupation is on the Short-Term Occupation List.

The proposed 25 November 2023 reforms will open up a pathway for permanent residency through the ENS subclass 186 visa program to all TSS subclass 482 visa holders, including visa holders with an occupation on the Short Term Occupation List. This will enable employers to have the option of retaining their skilled overseas staff on a long-term basis, regardless of their occupation.

For advice regarding sponsoring overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Understanding the Difference between the Temporary Residence Transition and Direct Entry Streams of the Employer Nomination Scheme (Subclass 186) Visa Program

Posted by Rebecca Berkovic on October 2, 2023

For Australian companies seeking to sponsor overseas workers under the Employer Nomination Scheme (ENS) (subclass 186 visa) program, it is important to understand the two available streams: Temporary Residence Transition and Direct Entry. This article aims to provide clarity on the differences between these streams, allowing companies to make informed decisions when nominating candidates for permanent residency.

Temporary Transition Stream:

The Temporary Transition (TRT) stream is designed for temporary visa holders who have already been working in Australia with their sponsoring employer.

To be eligible for this stream, workers must have held either a subclass 457 or Temporary Skill Shortage (TSS) (subclass 482) visa for a minimum of three years. This stream provides a direct pathway for temporary visa holders to transition to permanent residency.

Direct Entry Stream:

The Direct Entry stream caters to candidates who have not held a subclass 457 or TSS visa or have held it for a shorter duration.

Eligible applicants for this stream generally include those who have never worked in Australia before or have worked in the country for less than three years. Under the Direct Entry stream, there is no requirement for a minimum duration of employment with the sponsoring employer. However, applicants are required to have a minimum three years’ employment experience in their nominated occupation.

Key Differences in Eligibility Criteria:

In the TRT stream, visa applicants must meet certain criteria, including:

Having worked for their sponsoring employer for at least three years in the previous four.
Usually, applicants must be under 45 years of age at the time of application. Applicants are exempt from this criterion if any of the following applies:
- The applicants is nominated as an academic (university lecturer or faculty head at Academic Level B, C, D or E) by a university in Australia
- The applicant is nominated as a scientist, researcher or technical specialist at ANZSCO skill level 1 or 2 by an Australian scientific government agency
- The applicant is a medical practitioner who has worked in your nominated occupation for at least 3 years as a 457 or 482 visa holder, and for 2 of those 3 years were employed in regional Australia, and the position is in regional Australia
- As a subclass 457 or 482 visa holder, the applicant been working in the nominated occupation for the nominating employer for at least the last 3 years, and their earnings were at least as much as the Fair Work High Income Threshold for each year of that period,
- Transitional arrangements: If the applicant held (or had applied for and were later granted) a subclass 457 visa on 18 April 2017, the applicant can still apply for this visa under 50 at the time of application.
Satisfying the relevant English language requirement which requires demonstrating ‘competent’ English.
Meeting health and character criteria.

In the Direct Entry stream visa applicants must meet the following criteria:

Obtain a positive Skill Assessment from the relevant skills assessment authority.
Usually, the applicant must be under 45 years of age at the time of application, applicants are exempt from this criteria if any of the following applies:
- The applicant is nominated as an academic (university lecturer or faculty head at Academic Level B, C D or E) by a university in Australia
- The applicant is nominated as a scientist, researcher or technical (scientific) specialist at ANZSCO skill level 1 or 2 by an Australian scientific government agency
- The applicant currently holds a Special Category (subclass 444) or New Zealand citizen’s family member (subclass 461) visa and has worked for the employer, in the nominated position, for at least 2 years in the last 3 years immediately before applying. The 2 years excludes periods of unpaid leave.
Satisfying the relevant English language requirement which requires demonstrating ‘competent’ English.
Meeting health and character criteria.

Timeframe:

The TRT stream generally offers a faster route to Australian permanent residency for eligible temporary visa holders. The process is usually quicker because candidates already have Australian work experience and a history with their employer. However, it is important to note that timelines can vary depending on individual circumstances.

Conversely, the Direct Entry Stream involves a more comprehensive application process and may take longer to complete. Candidates in this stream typically need to undergo a rigorous skills assessment, which adds to the overall processing time.

Employer Nomination:

The employer nomination process is similar for both streams, involving the submission of relevant documentation, such as employment contracts and financial records, to support the nomination.

Employers must demonstrate a genuine need for the nominated position and their commitment to employing the candidate on a full-time basis.

Conclusion:

Understanding the differences between the TRT and Direct Entry streams of the Employer Nomination Scheme subclass 186 visa program is crucial for Australian companies sponsoring overseas workers for Australian permanent residency. By assessing individual circumstances and meeting the eligibility criteria for each stream, companies can make informed decisions while nominating candidates for Australian permanent residency.

It is recommended to seek advice from immigration law professionals to ensure compliance with all visa requirements and optimize the chances of a successful nomination and visa application.

For advice regarding sponsoring overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Expanding Opportunities: Australia’s Work and Holiday Visa Extended to Include Filipino Citizens

Posted by Rebecca Berkovic on September 18, 2023

The Work and Holiday visa program is a cornerstone of Australia’s commitment to global engagement, fostering international connections, and enriching its own society through cultural diversity. We are pleased to announce that the Australian Government has extended its Work and Holiday visa (subclass 462) to include citizens of the Philippines, opening up exciting opportunities for both nations.

For Aspiring Filipino Travelers

From 2024 the Australian Work and Holiday visa program will enable 200 Filipino citizens to travel to Australia each year for a 12-month period as the holder of a subclass 462 visa.

Eligibility

To be eligible for the Work and Holiday visa, Filipino citizens must meet the following requirements:

Be a Filipino citizen between the ages of 18 and 30.
Demonstrate sufficient funds to support themselves initially.
Completed tertiary education or finished at least two years of undergraduate or post-secondary education.
Meet health, character and national security requirements, and have medical insurance for the duration of the stay in Australia.

Purpose

The inclusion of the Philippines in Australia’s Work and Holiday visa program represents a significant step toward enhancing cultural exchange, economic growth, and personal development for both countries. It offers young Filipino citizens the opportunity to explore Australia while contributing to the local economy.

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

Disclaimer:

Understanding Australian Temporary Skill Shortage (Subclass 482) Visa Sponsorship Obligations for Employers

Posted by Rebecca Berkovic on September 11, 2023

Australia’s Temporary Skill Shortage (TSS) (subclass 482) visa is a vital instrument for Australian employers to address labour shortages by hiring skilled overseas workers. To ensure the integrity of the program and protect the rights of both employers and employees, the Australian Government has implemented various sponsorship obligations for employers. In this article, we provide an overview of the key sponsorship obligations that employers must fulfill when sponsoring an overseas worker on a TSS (subclass 482) visa.

Standard Business Sponsorship:

Before an employer can sponsor a foreign worker under the TSS visa program, they must obtain Standard Business Sponsorship (SBS) status. To achieve this, employers must meet several criteria, including demonstrating a commitment to training Australian workers and compliance with Australian workplace laws.

Labour Market Testing (LMT):

Employers must conduct labour market testing in most cases to demonstrate that there are no suitable Australian workers available to fill the position before sponsoring a foreign worker. LMT typically involves advertising the job vacancy locally, and employers must provide evidence of their efforts.

Market Salary Rate:

Employers must pay their sponsored foreign workers at least the market salary rate for the occupation. This ensures that foreign workers are not undercutting Australian wages and working conditions. The market salary rate is determined based on various factors, including location, industry, and experience.

Skilling Australians Fund (SAF) Levy:

Employers are required to pay a Skilling Australians Fund (SAF) levy for each foreign worker they sponsor under the TSS visa program. This levy is used to fund training and skill development initiatives for Australian workers. The amount of the levy varies depending on the size and turnover of the sponsoring business.

Notification Obligations:

Employers must inform the Australian Department of Home Affairs (DHA) of any significant changes in their business, such as changes in ownership, financial difficulties, or if their sponsored worker ceases employment. Timely notification is crucial to ensure ongoing compliance.

Maintain Records:

Employers are required to keep detailed records of their employment and sponsorship activities for up to five years. These records must be readily available for inspection by relevant government authorities.

Cooperation with Inspections and Audits:

Employers must cooperate with any inspections or audits conducted by government authorities, including the Fair Work Ombudsman and the DHA. Non-compliance can lead to sanctions and penalties.

Provide Adequate Working Conditions:

Employers must ensure that sponsored foreign workers receive the same working conditions as Australian employees, including access to entitlements such as leave, superannuation, and occupational health and safety protections.

Conclusion:

The Temporary Skill Shortage (subclass 482) visa is a valuable tool for Australian employers facing skill shortages. However, to maintain the integrity of the program and protect the rights of both foreign workers and Australian employees, employers must adhere to a range of sponsorship obligations. Compliance with these obligations is essential to avoid penalties, sanctions, and potential loss of sponsorship status. By understanding and fulfilling these obligations, employers can benefit from a skilled workforce while contributing to the Australian labour market and economy.

Disclaimer:

Closure of the Australian COVID Visa

Posted by Rebecca Berkovic on September 3, 2023

During the pandemic the Australian Government introduced the Temporary Activity Visa (subclass 408) Australian Government endorsed events (COVID-19 Pandemic Event) visa (Pandemic Event visa). This visa was introduced in order to fill labour shortages in the Australian market given the lack of temporary workers able to enter Australia due to the closure of Australia’s borders.

This visa stream enabled applicants who were already onshore in Australia and employed by an Australian business to continue working in Australia for up to 12 months.

Now that Australia’s borders have reopened and the number of temporary visa holder numbers have increased, the Australian Government has decided to close the Pandemic Event ‘COVID visa.’

From 2 September 2023, the Pandemic Event visa will be closed to new applicants. Applicants already holding a Pandemic Event visa will be eligible for a subsequent Pandemic Event visa until the visa program completely closes to new applications on 1 February 2024.

For advice and assistance regarding employing overseas workers or applying for an Australian work visa, please feel free to contact us at info@hartmanimmigration.com.au.

Disclaimer:

Transferring Employers for TSS Subclass 482 Visa Holders

Posted by Rebecca Berkovic on August 24, 2023

Holders of Temporary Skill Shortage (TSS) (subclass 482) visas are subject to the condition 8607 work restriction. Condition 8607 means that a TSS subclass 482 visa holder can generally only work for their sponsoring employer (or associated entities in certain situations). In accordance with condition 8607, TSS subclass 482 visa holders must also work in the occupation which is specified in the nomination provided to the Australian Department of Home Affairs (DHA).

If your business is interested in sponsoring a candidate who already holds a TSS subclass 482 visa, or you are a TSS subclass 482 visa holder transferring employers in Australia, it is possible to arrange this.

The process is as follows:

If the TSS subclass 482 visa holder will remain in the same occupation:

If the candidate will be remaining in the same position as they were for their previous sponsoring employer and therefore will continue to have the same ‘nominated occupation’ then the process involves two stages:

Your business as the new employer must either be registered as a standard business sponsor or apply to become a sponsor.
A nomination application must be lodged to select the candidate and it must the candidate must be nominated in the same occupation.

It is important to note that the candidate cannot commence work for your business until the new nomination has been approved by the DHA.

If the TSS subclass 482 visa holder will be changing positions/nominated occupations:

If the candidate will be changing roles and will have a different ‘nominated occupation’ in your business, then the following three stages will apply:

The new employer must either be registered as a standard business sponsor or apply to become a sponsor.
A new nomination application must be lodged with a different ‘nominated occupation’ selected.
The candidate will require a new visa application associated with the new nomination and the candidate will need to prove they have the skills and work experience to meet the requirements of the new occupation.

It is important to note that if the candidate has already resigned from their previous employer and sponsor, under condition 8607 they only have 60 days from termination of their employment to find a new employer and lodge a new nomination.

For advice regarding Australian visas and sponsoring skilled overseas workers, please do not hesitate to contact us at info@hartmanimmigration.com.au for Australian immigration assistance.

Disclaimer:

Australian Work and Holiday Visa Caps for 2023-2024 Announced

Posted by Rebecca Berkovic on August 21, 2023

The Australian Federal Government has announced placement caps for the Work and Holiday (subclass 462) visa program for 2023-2024. The Work and Holiday visa enables applicants ages 18 to 30 years old to have an extended 12 month holiday in Australia, whilst being able to work and fund their trip.

From 1 July 2023 until 30 June 2024, the following limits have been placed on the number of first time Work and Holiday (subclass 462) visas available for applicants over the next year:

Country	Annual Cap
Argentina	3,400
Austria	500
Brazil	500
Chile	3,400
China	5,000
Czech Republic	500
Ecuador	100
Greece	500
Hungary	500
Indonesia	4,612
Israel	2,500
Luxembourg	100
Malaysia	1,100
Mongolia	100
Papua New Guinea	100
Peru	1,500
Poland	1,500
Portugal	500
San Marino	100
Singapore	2,500
Slovak Republic	1,000
Slovenia	200
Spain	3,400
Switzerland	200
Thailand	2,000
Türkiye	100
Uruguay	200
Vietnam	1,500

It is noted that once the visa cap has been filled, no more applications for first time Work and Holiday (subclass 462) visas will be accepted from applicants of the above countries until the program reopens on 1 July 2024.

For assistance in applying for a Work and Holiday (subclass 462) visa, please contact us at info@hartmanimmigration.com.au.