Author: Rebecca Berkovic

Principal Lawyer Migration Agent Number: 0963431

Permanent Employer Sponsored Visas and Policy Change for Start-Up Businesses

Posted by Rebecca Berkovic on July 2, 2014

Significant changes were introduced on 1 July 2014 regarding immigration policy for start-up businesses under the permanent employer sponsored visa regime. Start-up businesses for permanent employer sponsored visas (namely, the Employer Nomination Scheme (subclass 186) and Regional Sponsored Migration Scheme (subclass 187) visa), are defined under the migration regulations as entities operating for less than a 12 month period.

Under the previous policy, should a start-up business wish to nominate an overseas worker for a permanent employer sponsored visa, the business was required to demonstrate that it had been actively operating for a period of at least 6 months before lodging a nomination application. However, as of 1 July 2014, in order to qualify as a nominator and sponsor an overseas worker for a permanent visa, there is no longer a requirement for a business to have been operating for a six month period. Rather, a start-up business must provide business activity statements for each complete quarter from the time of commencement of operations up until the time the nomination is lodged.

It is noted that if a business which has operated for a long period of time changes ownership or structure resulting in a new ABN and ACN being registered, this business is considered under policy to be a start-up business and must meet the requirements for a start-up business in order to successfully nominate an overseas worker for permanent residency.

This important policy change introduced on 1 July 2014 in relation to start-up businesses provides greater flexibility for newly established companies to nominated overseas workers for subclass 186 and 187 visas before they have been operating for a six month period.

Please contact us for further information on start-up companies sponsoring overseas workers on permanent employer sponsored visas.

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.

1 July 2014 Immigration Changes

Posted by Rebecca Berkovic on July 1, 2014

We have witnessed very minor amendments to the Australian immigration program introduced this 1 July 2014. The main changes are as follows:

1. Amendments to the Skilled Occupation List (SOL) for Skilled visas

The following occupations have been added to the SOL:

Chef (Australian and New Zealand Standard Classification of Occupations (ANZSCO) 351311)
Bricklayer (ANZSCO 331111)
Wall and Floor Tiler (ANZSCO 333411)

2. Amendments to the Consolidated Skilled Occupation List (CSOL) for Employer Sponsored visas

The following occupations have been added to the CSOL:

Hydrogeologist (ANZSCO 234413)
Exercise Physiologist (ANZSCO 234915)

The following titles will be changed:

Ship’s Surveyor will be titled Marine Surveyor (ANZSCO 231215)
General Medical Practitioner will be titled General Practitioner (ANZSCO 253111)

Changes to assessing authorities

New assessing authorities have been specified for the following occupations:

Nurse Manager (ANZSCO 254311): Australian Nursing and Midwifery Accreditation Council (ANMAC)
Nurse Educator (ANZSCO 254211): ANMAC
Nurse Researcher (ANZSCO 254212): ANMAC.
Marine Transport Professional not elsewhere classified (ANZSCO 231299): Vocational Education and Training Assessment Services (VETASSESS).

3. Limitation of skills assessment validity

From 1 July 2014, the Migration Regulations 1994 (the Regulations) are amended to ensure that skills assessments issued by assessing authorities for the purpose of visa applications are only valid for a period of 3 years, or if a shorter validity period is specified in the assessment, for that shorter period.

Prior to this amendment, skills assessments did not expire for the purposes of visa applications, even if the assessment specified a validity period.

The affected visa subclasses are:

Subclass 186 (Employer Nomination Scheme)
Subclass 187 (Regional Sponsored Migration Scheme)
Subclass 189 (Skilled–Independent)
Subclass 190 (Skilled–Nominated)
Subclass 485 (Temporary Graduate)
Subclass 489 (Skilled–Regional (Provisional)).

4. Amendments to the Regulations creating a surcharge on credit card payments

From 1 July 2014, the Migration Regulations 1994 are amended to allow the Department of Immigration and Border Protection (DIBP) to charge a credit card surcharge for the following applications:

nomination fees or charges;
sponsorship fees or charges;
visa evidence charges or fees; and
visa application charges or fees.

Where a person pays a fee or charge by other methods (for example a direct bank transfer payment), the person is not liable to pay the surcharge for the part of the fee or charge paid by that other method.

5. Temporary Skilled Migration Income Threshold

For 1 July 2014, there will be no increase to the Temporary Skilled Migration Income Threshold (TSMT) in relation to Temporary Work (Skilled) subclass 457 visas will occur.

Please contact us for further information regarding 1 July 2014 immigration amendments.

Disclaimer:

Termination of Non-Contributory Parent and ‘Other Family’ visas

Posted by Rebecca Berkovic on May 21, 2014

The Australian Federal Government has announced a cessation of new applications for Non-Contributory Parent and ‘Other Family’ visas under the family migration program. The termination will affect the following visa subclasses:

Parent (subclass 103)
Aged Parent (subclass 804)
Aged Dependent Relative (114)
Remaining Relative (115)
Carer (116)
Remaining Relative (835)
Carer (836)
Aged Dependent Relative (838).

The cessation of the above subclasses is expected to come into effect before or at the end of the current financial
year. Notably, visa applications for Non-Contributory Parent and ‘Other Family’ visas can still be lodged. The Department of Immigration and Border Protection (DIBP) has provided the following advice:

“Applications can still validly be lodged. All valid applications will remain in the pipeline and be processed in due course. The cessation of new applications under the Other Family and Non-Contributory Parent visas will take place prior to the start of the 2014-15 programme year.”

Therefore any applications for the above visa subclasses should be lodged as a matter of urgency.

Please contact us for further information regarding Non-Contributory Parent and ‘Other Family’ visas.

Disclaimer:

Abolishment of Nomination Ceilings for Subclass 457 Sponsorships

Posted by Rebecca Berkovic on March 11, 2014

The Federal Government has now abolished the ceiling placed on businesses applying to nominate workers on Temporary Work (Skilled) (subclass 457) visas in the process of applying to become standard business sponsors.

Following the host of changes to the subclass 457 visa program introduced on 1 July 2013, it became necessary for businesses to elect a ceiling on the amount of overseas workers they could nominate for the term of the sponsorship. This was a problematic process as it was difficult for a business to predict into the future exactly how many overseas workers the business may require.

Prior to the abolishment of the provision, should a business reach the nomination ceiling, they would be required to apply to the Department of Immigration and Border Protection (DIBP) to vary the terms of the sponsorship arrangement.

Following the abolishment of the nomination ceiling, businesses applying for subclass 457 sponsorship approval processed after 14 February 2014 will still be required to state how many overseas workers they intend to nominate, however further nominations can still be lodged after this number has been reached. This provides businesses with more flexibility in sponsoring overseas workers on subclass 457 visas.

Please contact us for further information regarding the new labour market testing provisions.

Disclaimer:

Labour Market Testing and the Subclass 457 Visa

Posted by Rebecca Berkovic on November 27, 2013

As of 23 November 2013, labour market testing provisions have been introduced into the Temporary Work Skilled (subclass 457) visa program. The changes were established as part of the Migration Amendment (Temporary Sponsored Visas) Act 2013 which was passed by the Australian Federal Government in June 2013. The purpose of the labour market testing provisions is for sponsoring businesses to demonstrate that they have made a genuine effort to recruit from the Australian population, prior to seeking to recruit overseas workers.

Employers will need to establish that reasonable efforts were made to find suitably qualified and experienced Australian workers for nominated positions in the twelve months prior to lodging a nomination application. Employers must submit evidence to the Department of Immigration and Border Protection (DIBP) of efforts to recruit locally, unless the nominated occupation selected is exempt.

The labour market testing provisions

Proving that reasonable efforts were made to hire suitably qualified and experienced Australian workers, must include the following steps:

Employers must have advertised the position locally and must provide information concerning all efforts by the business at advertising and recruiting for the position locally in the 12 months prior to lodging the nomination application;
Evidence of advertising and recruitment efforts must include the following information:

the dates recruitment activities occurred;
the geographic target audience; and
the outcome of the recruitment, including the number of applications received, number of applicants hired and the general reasons why other candidates were not selected;

Evidence of labour market testing may also include:
- labour market research;
- expressions of support from government employment agencies; or
- information about the sponsoring business’ participation in job and career expositions;
Employers must show that there were no suitable Australian permanent resident or citizen candidates able to fill the position.

If redundancies or retrenchments have been made by the sponsoring business or an associated entity of Australian workers in the same or a similar occupation to the nominated occupation within four months of lodging the nomination application, then the business must provide evidence of recruitment evidence from the date that the redundancies or retrenchments were made.

Occupations affected by labour testing and those that will be exempt

The DIBP has confirmed the list of occupations under the subclass 457 visa regime that will be subject to labour market testing.

Labour market testing will only be required for the following types of occupations:

Trade occupations (ie requiring an apprenticeship or completion of the equivalent of an Australian Certificate IV);
Technical occupations (ie requiring a Certificate IV);
Engineers; and
Nurses.

Basically, any other eligible occupation for the subclass 457 visa will be exempt. The general criteria of the exempt occupations are that they require a diploma, bachelor degree or higher qualification or equivalent experience.

Labour Market Testing will NOT be required for:

Most Management Positions;
Most Professional Occupations; and
Most Associate Professional Positions (requiring a diploma level qualification).

Exemptions will also apply where labour market testing requirements would be inconsistent with international trade obligations. International trade obligations include the following situations:

The nominated worker is a citizen of Chile or Thailand, or is a Citizen/Permanent Resident of New Zealand;
The nominated worker is a current employee of a business that is an associated entity of the sponsor that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile or New Zealand.
The nominated worker is a current employee of an associated entity of the sponsor who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company’s operations in Australia.
The sponsor currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed as an “Executive or Senior Manager”;
The nominated worker is a citizen of a World Trade Organisation member country and has worked for the sponsor in Australia on a full-time basis for the last two years.

Moreover, subclass 457 visa applicants nominated to assist in a relief effort after a major disaster will also be exempt from labour market testing.

Labour market testing provisions will not apply to nominations lodged by parties to a labour agreement.

The effect of the labour market testing provisions

The impact of labour market testing will be limited to specific occupations, such as engineering, nursing and some trade and technical occupations.

When sponsoring businesses wish to nominate workers who do not fall within one of the exemptions from labour market testing, additional steps will be required to demonstrate attempts at hiring within the local labour force.

Please contact us for further information regarding the new labour market testing provisions.

Disclaimer:

Newly appointed Minister for Immigration and Border Protection

Posted by Rebecca Berkovic on September 17, 2013

Newly elected Australian Prime Minister, Tony Abbott, has announced today that Scott Morrison MP will become the new Minister for Immigration and Border Protection. Scott Morrison MP previously acted as the liberal party’s Shadow Minister for Immigration and Citizenship.

The Federal Government has replaced the department title of the Department of Immigration and Citizenship (DIAC) with the Department of Immigration and Border Protection as of today.

Disclaimer:

The Australian Immigration Landscape Post-1 July 2012

Posted by Rebecca Berkovic on July 1, 2013

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.

Business visas

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.

Skilled visas

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).

Conclusion

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.

Disclaimer:

Summary of Strengthening the Integrity of the Subclass 457 Visa Discussion Paper

Posted by Rebecca Berkovic on May 5, 2013

MEASURE 1: Strengthening the Employer Attestation provision
Currently 457 business sponsors are required to provide DIAC with attestations that the business does not discriminate in favour of overseas workers. It is proposed that this should become a binding agreement between DIAC and the 457 visa sponsor in that the sponsor must demonstrate throughout the period of the sponsorship that they do not discriminate in favour of overseas workers and this would be enforced through monitoring.

MEASURE 2: Training Benchmarks
Strengthen the enforceability of the existing training benchmarks to ensure that sponsors are genuinely contributing to ongoing training of Australians.

Training benchmarks would become a binding requirement rather than a commitment;
Business sponsors will be required to keep records of ongoing training;
Businesses that have been trading for less than 12 months will be required to provide an auditable plan to meet the training benchmarks and to make an ongoing commitment to continue to meet the training benchmarks for the duration of their sponsorship; and
Businesses seeking to renew or vary their 457 sponsorship agreement will be required to demonstrate that they have met their commitment to training throughout the term of their previous sponsorship.

MEASURE 3: Genuineness criterion
Introduce a “genuineness” criterion in the assessment of 457 visa nominations to ensure that the nominated position and surrounding circumstances are genuine.

It is noted that under existing provisions business sponsors are only required to certify that the tasks of the nominated position correspond to the tasks of a relevant occupation under the 457 program. The genuineness criterion would enable case officers to consider the veracity of the certification provided and will have the power to decide whether a more appropriate ANZSCO classification is appropriate.

MEASURE 4: Amendments to the terms of an approved sponsorship

Business sponsors will be required to adhere to an agreed number of nominated positions for the duration of their sponsorship. There may be an option to amend numbers, if required.

MEASURE 5: Strengthen assessment of generalist occupations.

“Program and Project Administrator”, “Specialist Managers” and certain other generalist occupations would require skills assessments and would be limited to relevant industries only. DIAC may require subclass 457 visa applicants nominated in these occupations to undertake a skills assessment with VETASSESS to substantiate their skills.

MEASURE 6: Strengthening the market rate provisions

Change to market salary rate provisions to ensure that workers on Subclass 457 visas are not used to undermine the employment conditions of Australian citizens and permanent residents. DIAC has proposed the following:

To expand market salary rate provisions beyond the particular workplace to that workplace’s regional locality; and
To increase the market salary assessment exemption threshold to $250,000.

MEASURE 7: Undesirable employment relationships

Prohibit on-hire arrangements that fall outside approved Labour Agreements and employment arrangements that resemble an independent contractor arrangement.

MEASURE 8: Strengthen the obligation not to recover certain costs
Regulation currently only relates to the “recovery” of costs from visa holders. It does not prevent sponsors from requesting visa holders to pay these costs up front, thereby avoiding the act of “recovery”. It is proposed that business sponsors will be required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto the overseas worker.

MEASURE 9: Prevent potential for misuse of the English language salary exemption
A new regulation would be introduced at the employer nomination stage to require the visa holder to have met the English language requirement or be exempt. Therefore, if a worker is exempt from the English language requirement based on their salary of over the exemption threshold, if they transfer employers and their salary is under this amount, they will be required to prove they meet the English language requirement.

MEASURE 10: Terms of sponsorship amendments for overseas business sponsors and start-up businesses

Reduce the period of approved sponsorship for overseas businesses and start-up businesses to 12 months or to the term of a contract (which can only be up to three years) and whichever is the longer term will apply.

MEASURE 11: Mandatory eLodgement of Subclass 457 applications

Require all Subclass 457 sponsorship, nomination and visa applications to be lodged using the eLodgement facility.

MEASURE 12: Minor technical amendments to clarify existing provisions
These minor technical amendments will solve ongoing minor issues within the program and do not represent significant shifts in policy.

Clarifying the need for a direct employer-employee relationship;
Requiring a visa applicant to be the subject of a valid approved nomination; and
Extending the Visa Application Charge (VAC) refund provisions to situations where the nomination is withdrawn.

The proposed measures explained above, although they have not yet been enforced into law, will most likely form the basis of upcoming legislative and policy changes to the 457 visa program. DIAC is yet to announce the exact legal changes to the 457 visa program, however we will keep our clients updated with any developments in this area.

Disclaimer:

Major Changes to the 457 Visa Program Expected

Posted by Rebecca Berkovic on May 5, 2013

The Department of Immigration and Citizenship (DIAC) has released a Discussion Paper entitled Strengthening the Integrity of the Subclass 457 Visa on 2 May 2013. This important Discussion Paper provides insight into the expected legislative and policy changes to be introduced to the subclass 457 visa program in the very near future. Therefore it is vital that Australian businesses that presently, or may in future employ overseas workers are aware of the main features of the Discussion Paper and the implications for sponsoring businesses.

Implications for Businesses

The primary proposed measures which would restrict the subclass 457 visa program and impact upon sponsoring businesses are as follows:

Businesses would be required to meet training obligations throughout the term of the sponsorship, be subject to potential monitoring of training obligations and be required to keep records of ongoing training;
Renewing subclass 457 business sponsorship would require evidence of meeting training obligations throughout the term of the sponsorship;
Businesses would need to elect a set number of people the business is able to nominate for subclass 457 visas at the time of the sponsorship application (note that there may be provision to increase this number during the term of the sponsorship);
“Program and Project Administrator”, “Specialist Managers” and certain other generalist occupations would require skills assessments and would be limited to relevant industries only;
Market salary rates would be considered within the regional locality and not the particular workplace; and
For start-up companies and overseas businesses, the sponsorship length will be limited to a period of 12 months or the term of the employment contract (which can be up to three years), whichever is longer.

NB: Further explanation of the proposed changes to the subclass 457 visa program is outlined in more detail below.

Action for Businesses

If you (or your clients) are considering registering a business/es as a sublass 457 business sponsor, we would recommend applying as soon as possible so that the current, more relaxed application criteria apply. Moreover, if your business (or your client’s business) intends to sponsor an overseas worker for a subclass 457 visa, we recommend commencing the process immediately.

At Hartman Immigration Lawyers, we ensure that all our clients’ subclass 457 sponsorship, nomination and visa applications are prepared and lodged speedily and efficiently.

We provide a thorough assessment of every case to determine the eligibility of businesses (from well-established to start-up companies) to become subclass 457 sponsors, and assess overseas workers’ eligibility for a subclass 457 visa. We provide comprehensive legal submissions to DIAC to optimise our clients’ chances of gaining business sponsorship and visa approval.

You can contact us with inquiries regarding lodging urgent subclass 457 sponsorship, nomination and visa applications.

Disclaimer:

457 Visa Monitoring

Posted by Rebecca Berkovic on March 18, 2013

In a joint media statement released today (18 March 2013) the Minister for Immigration and Citizenship, Brendan O’Connor, and the Minister for Employment and Workplace Relations, Bill Shorten, announced new inspection powers for the Fair Work Ombudsman (FWO) in relation to 457 business sponsors.

Implication for 457 Business Sponsors

The Federal Government has extended monitoring of 457 Business Sponsors which will be able to be undertaken not just by the Department of Immigration and Citizenship (DIAC) but also by the FWO. The Federal Government has given powers to the FWO to:

Monitor 457 business sponsors and enforce compliance with 457 visa conditions;
Investigate whether 457 visa holders are employed in their nominated occupation and that their actual role matches that stated in their job title and description; and
Examine whether 457 visa holders are receiving market salary rates specified in their approved visa.

The Federal Government has stated in its media release that the FWO has over 300 inspectors investigating complaints in Australian workplaces and inspectors will now be vested with the power to investigate 457 business sponsors.

Powers of the FWO

As well as investigative and monitoring powers, FWO staff will be able to refer any “suspicious activity” to the DIAC investigation team. DIAC will then be responsible for undertaking a more thorough examination of the reported compliance issues.

What Should 457 Business Sponsors Do?

The vested monitoring powers of 457 Business Sponsors in the FWO are part of the Federal Government’s recent focus on ensuring that employers are not abusing the subclass 457 visa program. Employers should ensure that their 457 visa holder employees are working in their nominated occupation, are undertaking the role stipulated in the position description provided to DIAC and ensure that they are paid the market salary rate stated in their visa.