Category: Compliance

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:

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.

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:

A Changed Definition of Training for 457 Sponsorship

Posted by Rebecca Berkovic on July 27, 2017

As part of the bundle of legislative and policy reforms introduced to Australian work visas, including the Temporary Work (Skilled)(subclass 457) visa, on 1 July 2017 the Department of Immigration and Border Protection (DIBP) changed the definition of training for 457 sponsorship.

In applying to register as a 457 standard business sponsor, businesses are required to meet the requisite training benchmark. The training requirements include the following:

For a business operating for less than 12 months, an Auditable Training Plan must be provided.
For a business operating for more than 12 months, the options are as follows:
1. Training Benchmark A: The business must demonstrate that 2% of payroll was placed in an industry training fund; or
2. Training Benchmark B: The business can show that 1% of payroll expenditure was spent on training Australian staff.

Outline of the Key Training Definitional Changes

The key changes on 1 July 2017 include clarification of the following requirements:

Definition of what constitutes payroll expenditure for a business; and
Clarification of what can and cannot be counted towards training expenditure in order to meet Training Benchmark B.

What constitutes payroll expenditure?

The Federal Government has clarified that from 1 July 2017 payroll has an expansive definition and is considered to be one of the following:

The total amount of wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments and payments made to relevant contractors or subcontractors; or
If the sponsoring business does not pay wages, contractors and subcontractors then the monetary value of director’s salaries, fees and drawn payments; or the profit of the business.

What Constitutes Training for Training Benchmark B?

The Federal Government has clarified that the following constitutes training for the purposes of Training Benchmark B:

for Australian employees to undertake a formal course of study, including any reasonable and necessary associated costs (e.g. costs of travelling to training venue) or access an online learning programme;
to RTOs to deliver face-to-face training to Australian employees that will contribute towards an Australian Qualification Framework qualification;
to purchase an eLearning platform or standalone training software; or
to cover the salary of:
- Australian employees engaged by the business as apprentices or trainees under a formal training contract;
- Australian employees who have completed an undergraduate or higher degree in a university within the last 365 days; or
- a trainer responsible for training Australian employees on a full time basis.

What Does Not Constitute Training for Training Benchmark B?

The Federal Government has clarified that the following cannot be counted towards training expenditure for the purposes of Training Benchmark B:

on-the job-training;
induction training;
staff completing online training courses;
purchasing software for use in normal duties;
membership fees;
purchasing books, journals or magazine subscriptions;
attending conferences for purposes other than continuing professional development;
hiring a booth at a trades show, conference or expo
training only undertaken by persons who are:
- not Australian citizens or permanent residents;
- principals in the business or their family members;
training that is not relevant to the industry in which the business operates or has a very low skill
level having regard to the characteristic and size of the business.

Proposed Future 457 Sponsorship Training Changes

Significant reforms are currently underway to the Australian visa program and when the new Temporary Skills Sponsored (TSS) visa replaces the subclass 457 visa, the Federal Government has announced that the current training provisions will be replaced by a work visa levy to be paid by standard business sponsors per worker.

Need Assistance?

It is crucial to each standard business sponsorship application that the correct evidence is provided to demonstrate meeting training benchmarks.

For advice and assistance with this process, contact us or email our firm at info@hartmanlawyers.com.au.

Disclaimer:

Sponsorship Compliance and 457 Visa Changes

Posted by Rebecca Berkovic on June 7, 2017

Following Australian Prime Minister Malcolm Turnbull’s announcement on 18 April 2017 that the Temporary Work (Skilled)(subclass 457) visa will be abolished from March 2018, a host of changes to Australia’s work visa program are now being introduced in stages, including subclass 457 sponsorship compliance.

The Australian Federal Government has announced that it will implement sponsorship compliance reforms commencing on 31 December 2017. This includes creating a public database of sponsors sanctioned for failing to meet their sponsorship obligations in accordance with the Migration Regulations 1994 and related legislation.

Meeting Sponsorship Obligations

In order for a business sponsor to prevent breaching their subclass 457 sponsorship obligations and appearing on a list published by the Department of Immigration and Border Protection (DIBP), the following steps are strongly recommended:

Ensure that the business meets the requisite training requirements in each 12 month period of the sponsorship;

Ensure that when sponsoring a 457 visa holder the business, or individuals within the business, do not receive a payment or gift for sponsoring the overseas worker;

Ensure that the 457 visa holder employee is working in the nominated occupation specified to the Department of Immigration and Border Protection (DIBP);
Ensure that the 457 visa holder is paid in accordance with information provided to the DIBP; and
Keep records of the 457 visa holder’s employment, such as payslips and leave records.

In addition, as of 31 December 2017 the DIBP will start collecting tax file numbers of 457 visa holders and matching data with Australian Tax Office records to ensure visa holders are being paid their nominated salary.

TSS visa and Sponsorship Compliance

The new Temporary Skills Sponsor (TSS) visa which will replace the 457 visa in March 2018 may be accompanied by reformed sponsorship obligations. For businesses sponsoring overseas workers under the TSS visa, it is important to remain informed of sponsorship obligations.

We will continue to monitor Australian work visa changes and inform our clients and contacts of future sponsorship compliance reforms.

For advice regarding sponsoring workers on a subclass 457 visa and compliance issues, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.

Disclaimer:

arrangements for part-time employment of subclass 457 visa holders

Part-time Work and the Subclass 457 Visa

Posted by Rebecca Berkovic on March 29, 2017

The Australian Department of Immigration and Border Protection (DIBP) has clarified arrangements for part-time employment of Temporary Work (Skilled)(subclass 457) visa holders in Australia.

The DIBP has emphasised that subclass 457 visa program is designed to fill genuine labour shortages within the Australian labour market where it is not possible to source Australian employees. It is therefore intended that subclass 457 visa holders are employed on a full-time basis.

Is it possible to nominate a 457 visa holder on a part-time basis?

However, in limited circumstances it may be possible for a business to employ subclass 457 visa holders on a part-time basis. Part-time work arrangement may be approved in the following situations:

Subclass 457 nomination criteria are met, including nominated earnings meeting the market salary rate and the salary threshold being met. (Please note that the DIBP has confirmed that pro-rata rates will not be considered when assessing meeting the salary threshold requirement, which is currently $53,900 per annum.)

Part-time work may be approved where nominated earnings are a minimum of $250,000 per annum.

We also note that part-time positions cannot be approved for subclass 457 visa holders under a labour agreement. This is only possible through a standard business sponsorship.

Subclass 457 visa holders returning to work after maternity leave

It is possible that circumstances for a subclass 457 visa holder will change onshore, such as an employee taking maternity leave and wishing to return to work on a part-time basis. In this situation, it is possible for a subclass 457 visa holder to reduce their hours, however the following conditions must be met:

The pro-rata hourly rate of the approved nominated salary of the subclass 457 visa holder cannot decrease and they must receive the market salary rate;
The subclass 457 visa holder’s role and duties must remain consistent with the nominated occupation and position approved under the nomination;
Reducing hours to part-time is mutually agreed upon by the sponsoring employer and the subclass 457 visa holder, (it is recommended that sponsors obtain a written agreement); and
The subclass 457 visa holder is not employed under a labour agreement which does not allow for part-time positions.

If a subclass 457 visa holder’s salary is at least $250,000 per annum, it is also possible to reduce hours to part-time without an agreement in place.

However, it is generally considered inappropriate by the DIBP to reduce a subclass 457 visa holders hours to part-time. This would mean that their guaranteed annual earnings would decrease and sponsors must ensure that subclass 457 visa holders are provided with conditions no less favourable to their Australian counterparts.

For more information on applying for subclass 457 visas, please feel free to contact the author by email at rebecca@hartmanlawyers.com.au or by telephone on +61 3 9021 0986 or +61 (0)423 701 747.

Disclaimer:

Ceasing Employment as a 457 Visa Holder

Posted by Rebecca Berkovic on November 10, 2016

Following from our article last month regarding Transferring Employers for Subclass 457 Visa Holders- Important Policy Changes, the Australian Federal Government’s proposal to reduce the period a Temporary Work (Skilled)(subclass 457) visa holder can remain in Australia after ceasing employment with their sponsor has been introduced into the Migration Regulations 1994.

Instead of the previous 90 day period to remain in Australia, subclass 457 visa holders whose employment with their sponsor has ceased (either due to termination or resignation) will now have only 60 days to remain in Australia.

However, subclass 457 visa holders may be able to find another employer willing to sponsor them. Policy updates from last month dictate that now the 457 visa holder’s new potential employer is only required to lodge a new nomination and (if required) sponsorship application within the 60 day period. The nomination is no longer required to be approved within this period.

Please note that the 60 day amendment will affect subclass 457 visa holders where the visa was granted on or after 19 November 2016.

For advice regarding subclass 457 sponsorship, nomination and visa applications, please do not hesitate to contact us at info@hartmanlawyers.com.au for Australian immigration assistance.