Category: 457 Visas

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

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:

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.

Major Changes to the 457 Visa Program Expected

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:

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.

457 Visa Monitoring

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.

 

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.

Potential Changes to the Subclass 457 Visa Program

The Department of Immigration and Citizenship (DIAC) has announced proposed amendments to the Temporary Work (Skilled) (Subclass 457) visa to be introduced on 1 July 2013. The proposed changes are intended to tighten the regulations in relation to the Subclass 457 visa program.

On its website, DIAC has stated that it is concerned that the Subclass 457 visa regime, which is intended to supplement the Australian workforce, is actually being misused and treated as a means for temporary visa holders (such as working holiday maker and student visa holders) to remain in Australia.

DIAC has also expressed concern that some employers are abusing the Subclass 457 visa program through non-compliance with employer obligations and dishonesty regarding the nominated occupations of overseas workers.

DIAC has stated on its website that the following measures are set to be introduced:

  • the introduction of a genuineness criterion under which DIAC may refuse a nomination if the position does not fit within the scope of the activities of the business;
  • an increase in market salary exemption threshold from $180 000 to $250 000 to ensure that higher paid salary workers are not able to be undercut through the employment of overseas labour at a cheaper rate;
  • the removal of English language exemptions for certain positions. Many long-term 457 workers go on to apply for permanent residence, and this change will ensure that the 457 program requirements are brought into line with the permanent Employer Sponsored program which requires a vocational English ability. Applicants who are nominated with a salary greater than $92,000 will continue to be exempted from the English language requirement;
  • enhanced regulatory powers for DIAC to ensure that the working conditions of sponsored visa holders meet Australian standards and that subclass 457 workers cannot be exploited or used to undercut local workers;
  • amendments to existing training benchmark provisions to clarify that an employer’s obligation to train Australians is ongoing and binding for the duration of their approved sponsorship, including for newly established business;
  • amendments to clarify that 457 workers may not be on-hired to an unrelated entity unless they are sponsored under a labour agreement; and
  • amendments which will allow DIAC to refund a visa application fee in circumstances where an employer nomination has been withdrawn.

There has been a suggestion in the media that labour market testing will be introduced into the Subclass 457 visa regime. However, the 457 program is said to be an important part of how Australia meets a number of international trade obligations. It is arguable that these obligations mean that Australia cannot limit access to its economy to people who wish to do business with Australia. Part of doing business with Australia will often involve sourcing skilled labour from other countries. It is important that Australia remains open for business people and service providers to hire overseas workers.

DIAC is yet to publish exactly what the legislative and policy changes for the Subclass 457 visa will entail. However, it seems inevitable that changes will be introduced to the Subclass 457 visa program on 1 July 2013.

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.

Increase in Salary Threshold for 457 Visas

Note: As of 17 June 2011, the Temporary Skilled Migration Income Threshold (TSMIT) for the subclass 457 Temporary Business (Long Stay) visa will increased to $49,330.

Moreover, the salary level for applicants to be exempt from the subclass 457 visa English language proficiency requirements is now $88,410.

If you have any queries regarding changes to the 457 visa program, please contact us for clarification.

This is general information only and does not constitute legal advice.

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.

Changes to English Language Exemptions for Subclass 457 Visas

The English language requirement for the subclass 457 Temporary Business visa is competent English (obtaining a score of at least 5.0 in all four components of the IELTS test). However, exemptions to this language requirement apply, including meeting the minimum salary threshold. This has now been increased to an applicant earning an annual salary of a minimum of $85,090.

Other exemptions to the subclass 457 visa English language exemption include but are not limited to the following:

1. Being a citizen of one of the following countries:

  • Canada
  • New Zealand
  • The Republic of Ireland
  • The United Kingdom; or
  • The United States of America

2. Applicants who have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English may be exempt unless the registration, licence or membership requires a standard of English.

3. Where the nominated occupation relates to diplomatic or consular activities of another country or an office of the authorities of Taiwan located in Australia.

Also, English exemptions apply in the case of certain occupations on the Skilled Occupation List for the subclass 457 Temporary Business (Long Stay) visa.

Should you have any queries regarding English exemptions for the subclass 457 visa or any other questions regarding this visa, please contact us.

This is general information only and does not constitute legal advice.

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.