457 Visa: Accredited Sponsorship – A fairer approach for business

Perhaps the most pleasing amendment made to the 457 visa program on 1 July 2017 was the broadening of categories of business which may be eligible for Accredited Sponsorship under the 457 visa program.
Accredited Sponsorship:  What are the benefits?

Prior to employing an overseas national on a 457 visa, the business must first apply to the Department of Immigration & Boarder Protection (“DIBP”) to become an approved sponsor.  Established businesses will either be approved as a standard sponsor or if they meet certain, additional requirements, will be approved as an accredited sponsor. 

The benefits for a business approved as an accredited sponsor include:

• sponsorship approval for a longer period (typically six years instead of five);
• streamlined nomination process in certain circumstances; and
• priority processing for all nomination and visa applications.

In short, accredited sponsors wait less time for their employee’s visa to be approved.  Current processing times for 457 visas have blown out to up to five months most applications so taking steps to determine if your business is eligible for accreditation is a very simple way of being able to get your overseas national staff member working for your business, sooner. 

Accredited Sponsorship:  What are the categories?

There are four categories of business who are eligible to become an accredited sponsor:Category 1:         Commonwealth, state and territory government agencies

• Category 2:         Australian Trusted Traders
• Category 3:         Low Volume Users with High Proportion of Australian employees; &
• Category 4:         High Volume Users with Medium Proportion of Australian employees
  

The required characteristics for each category are further defined and the below is a summary of the requirements. 

 Table One:  Summary of Characteristics for Accredited Sponsor Categories

	Required Characteristics
Category 1: Commonwealth, state and territory Government Agencies	·         Australian workforce is at least 75%
Category 2: Australian Trusted Traders	·         Australian workforce is at least 75% ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business
Category 3: Low Volume User	·         Australian workforce is at least 90% ·         Have had at least one primary 457 visa holder in the two years prior to the application for accreditation ·         Publicly Listed company or private company with at least AUD$4Millon turnover in the last 2 years ·         Have been an active 457 sponsor for at least 2 years ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business ·         Provide details of all business activities to the DIBP ·         Provide details of all Principals/Directors of the business to the DIBP
Category 4 High Volume Users	·         Australian Workforce is at least 75% of the workforce ·         Have had at least ten primary 457 visa holders in the two years prior to the application for accreditation ·         Publicly Listed company or private company with at least AUD$4Millon turnover in the last 2 years ·         Have been an active 457 sponsor for at least 2 years ·         Demonstrate that all employees are engaged under a written employment contract which includes the at least the minimum employment entitlements under the National Employment Standards.  ·         Demonstrate that existing employees are paid in accordance with an Enterprise Agreement or internal salary table that is reflective of current market rates for all occupations within the business ·         Provide details of all business activities to the DIBP ·         Provide details of all Principals/Directors of the business to the DIBP
NOTE:	The above table is a summary of the characteristics only.  Use this as a guide only.  Make your own enquiries and seek advice from Nevett Ford Lawyers as to the full requirements a business is required to meet

 The period between nomination/visa lodgement and approval is often characterised by a frustrating waiting game for employee and business where your employee is unable to commence working for the business.  The changes made to the accredited sponsorship criteria offer a genuine opportunity for all businesses accessing the 457 visa program to reduce the timeframes associated with this “lost time” and get your employee to start work sooner.  We would suggest that business with robust HR practices that are responsive and up-to-date with legislative changes to workplace laws are appropriately placed to take advantage of these changes.  

Should you have any questions about the above information or if you want to discuss how your business can access these arrangements in more detail please do not hesitate to contact us for a confidential discussion on (03) 9614 7111 on send us an on-line enquiry.

 

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Australia may introduce ‘mandatory’ provisional visas before permanent residency

Migrants coming to Australia may have to spend a certain period of time on mandatory provisional visas before they are granted a permanent residency. The Immigration Department is exploring this possibility in a visa transformation discussion paper by inviting submissions from the public.

 

The number of persons in Australia applying for permanent residence has grown substantially over the last two decades. In 2015-16, around half of all permanent visas were granted to people already in Australia on a temporary visa.  This means that temporary residence is increasingly becoming the first step to living in Australia permanently.

 

It has also been argued that it’s in the national interest to facilitate a pathway to permanent residence for the “best and the brightest” international students and “skilled workers” and that some permanent visas include mandatory provisional visa stages.

 

However, under most of the permanent visa categories, migrants do not have to spend any time in Australia before they are granted permanent residency, which the discussion paper says is inconsistent with “like-minded countries”, such as the UK, the Netherlands and the US that have a more formal assessment process and period for evaluating those who seek to stay permanently.”

 

Though introducing such a probationary period for permanent migrants is likely to deliver budget savings, concerns have been raised that it could create a divide in the Australian society. The proposed reforms could undermine Australia's social cohesion and potentially increase the risk factors that may lead to violent extremism by creating a two-tier society where migrants are treated substantially differently to Australian citizens.

 

Major changes being discussed include slashing the number of visa categories from 99 to about 10 and making the visa system flexible so the government can respond more quickly to local and global trends.

 

Would you like to know your eligibility for a visa or seeking permanent residence? Call our office today on +61 3 9614 7111.

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Subclass 187 RSMS is an alternative solution to Permanent Residence

The RSMS (Regional Sponsored Migration Scheme) has significant benefits as compared to other skilled migration pathways. RSMS has the widest occupations list of any skilled migration visa type. Any occupation at ANZSCO skill level 1, 2 or 3 can be used to apply for an RSMS visa.

The RSMS Occupations List includes the following occupation categories:

Skill Level 1: Management and Professional occupations requiring a bachelor degree or 5 years of work experience

Skill Level 2: Associate Professional occupations requiring a diploma-level qualification or 3 years of work experience

Skill Level 3: Technician and Trade occupations requiring a Certificate III which includes 2 years of on-the-job training or a Certificate IV

The RSMSOL includes 224 occupations which are not on either the STSOL (used for 457 and ENS visa applications) or the MLTSSL (used for Skilled Independent Subclass 189 visas). These include occupations such as:

• Various Specialist Managers such as PR managers, Policy and Planning Managers, Production Managers, Procurement Managers, Wholesalers and Importers or Exporters
• Hospitality, Retail and Service Managers such as Retail Managers, Call or Contact Centre Managers and Financial Institution Branch Managers
• Occupations in the Arts such as performers, authors, directors
• Human Resources occupations
• Sales Representatives in Industrial, Medical and Pharmaceutical Products
• Air and Sea Transport Professionals such as pilots, ships engineers etc
• Science occupations such as biochemists, metallurgists, research and development managers
• Various engineering professional, technician and drafting specialisations
• Office Managers and Practice Managers
• Receptionists, secretaries and personal assistants
• Child Care Group Leaders
• Various trades

However, from March 2018, the selection of occupations for RSMS will be much more limited. Most applicants will need to have an occupation on the MLTSSL - at 183 occupations; this is much shorter than the RSMSOL which has 673 occupations. Additional occupations may be available for regional positions, but at this stage it is not clear how many extra occupations will be available.

Training Requirement

Unlike the 457 and ENS programs, the employer does not need to show that they have met the training benchmarks to be able to sponsor for RSMS. Establishing compliance with the training benchmarks is generally the most involved part of applying for 457 and ENS, so this is of great benefit.

From March 2018, a training levy will be payable when applying for an RSMS visa. For businesses with under AUD 10 million in turnover, the training levy will be $3,000. For larger businesses, the levy will be $5,000. It is not yet clear if this can be paid by the individual applying for the RSMS visa, or whether it must be paid by the employer.

Skill Level and English Requirement

Most applicants only need to meet the ANZSCO skill level for their occupation to meet the skill requirement for RSMS. Either a formal qualification or work experience is generally sufficient to meet the ANZSCO skill level, though registration is also necessary if this would be required for the position.

Unlike general skilled migration or the ENS Direct Entry Stream, a formal skills assessment is not in general required. This would normally only be necessary where nominating a trade occupation and where the applicant does not have an Australian trade certificate.

In terms of minimum work experience, this is currently not required if you hold a relevant qualification. This means that international students can potentially qualify for an RSMS visa without any work experience. 

From March 2018, a minimum of 3 years of work experience in the occupation will be required when applying for an RSMS visa.

For the Direct Entry RSMS pathway, Competent English is sufficient to qualify (6 in each band) - this is similar to what is required for the ENS visa, but significantly easier than the requirement for General Skilled Migration.

To meet the pass mark of 60 points for General Skilled Migration, many applicants will need Proficient English (7 in each band of IELTS or equivalent). Many applicants in pro rata occupations need 65 or 70 points to receive an invitation for a Skilled Independent Subclass 189 visa - these applicants may need to get full points for Superior English (8 in each band or equivalent).

The RSMS visa is a permanent visa which allows you to live in Australia indefinitely. This is more beneficial than the 457 visa, which for most occupations is now valid for only 2 years. It is also more beneficial than the Skilled Regional Provisional Subclass 489 visa, which is a 4-year visa which requires you to live and work in a regional area for 2 years before being eligible for permanent residence. However the RSMS visa can be cancelled if you do not commence work with your employer or if you do not stay with the employer for 2 years. However, if this is due to circumstances beyond your control (eg business went into liquidation, redundancy etc.), your visa is unlikely to be cancelled, particularly if you do continue to live in a regional area.

Lastly the RSMS is a highly beneficial visa which in many ways is easier to qualify for than the 457, ENS and General Skilled programs.

However, from March 2018, many applicants will no longer be eligible for the RSMS visa - particularly if your occupation is not on the MLTSSL or if you do not have 3 years of skilled work experience.

Contact Nevett Ford Lawyers if you require advice or assistance.

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Migration Law Update: Big Brother is Watching

One of the government’s recent announcements around the Australian 457 Visa program which appears to have gone relatively unnoticed is that from December this year the Department intends to start collecting tax file numbers of 457 Visa holders and other employer-sponsored migrants for the purpose of matching that information with Australian Taxation Office (ATO) records to ensure that Visa holders are not paid less than the nominated salary.

Unfortunately, the underpayment of workers who have poor English skills and are on visas is a chronic problem in the Australian workspace. It was recently reported by the Fair Work Ombudsman that of all requests for assistance from the Ombudsman in 2016/17, 18% came from workers on visas – an increase on the previous year and significantly disproportionate to the number of workers on visas. It was also reported that half the cases that made it to court involved a visa worker.

Another announcement which has also received little publicity but which should be of concern to employers is that by December the Department intends to publish on its website details relating to sponsors sanctioned for failing to meet various statutory obligations, including their migration law sponsorship obligations.

The wording of the announcement makes it very clear that not only breaches of migration obligations which will be published. At this stage the types of obligations which are being contemplated have not been detailed but could, for example include failure to pay tax and breaches of workplace laws – being issues that prospective employees might be interested in knowing about before deciding whether or not to accept an offer of employment. It is also not clear what timeframes are contemplated – for example will it only be in respect of breaches committed from December this year or does it include past breaches? If so, how far back do they propose to go and how long will details be published before the publication is withdrawn. Also, what appeal rights if any will employers have in respect of any grievances regarding the accuracy of the publication process.

Until more details are published these questions will remain answered but are issues that all employers should be aware of and concerned about.

Please contact Nevett Ford Lawyes for migration law and visa advice.

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457 Visa - Training Benchmark changes

Changes continue to be rolled out by the Department of Immigration & Border Protection (DIBP).  A recent change relates to the training benchmarks that 457 business sponsors are obliged to meet - this article explains how the changes impact employers.

Benchmark A - Payments to a Training Fund

This involves paying 2% of payroll to an industry training fund. From July 2017 payments may be made to one of the following:

• Industry training fund
• Fund managed by recognised Industry Body
• Scholarship fund operated by Australian TAFE or University.

The following types of expenditure are now not eligible:

• Funds operated by RTOs or private individuals
• Funds paying commissions or offering refunds if application fails

The main impact of this change is that the previous practice of private education providers accepting payments for Benchmark A will be discontinued.

Benchmark B - Expenditure on Training Australians in the Business

This involves spending 1% of payroll on training Australians in the business. From July 2017 payments may include:

• Apprentices, trainees or recent graduates
• RTOs delivering face-to-face training which contributes to formal qualification
• eLearning or training software
• Formal courses of study + associated costs (e.g. travel)
• Training officers - must be "sole role" of the employee (to train other employees in the business)
• Attending conferences for Continuing Professional Development (CPD).

The following types of expenditure are now not eligible:

• Salaries of staff attending training
• Membership fees - this was previously counted
• Books, journals or magazine subscriptions - this was previously counted
• Conferences for purposes other than CPD
• Hiring a booth at trade show, conference or expo On-the-job training - previously, structured on-the-job training could be counted in some circumstances
• Training not relevant to business' industry - it is not clear how closely related the training must be to the industry
• Training of principals or family members - previously, training of family members could be counted providing it was also made available to other employees
• Induction training.

Based on current information, it appears that payment of external providers to deliver training for Australian employees, is excluded unless it leads to a formal qualification. This would form the bulk of the training expenditure of most businesses and so many will need to restructure their training to comply with the new Benchmark B. Once further clarity is available we will let you know.

What is also unclear at the moment is whether 457 business sponsors who have been calculating their training benchmark expenditure on the previous training benchmark provisions will be deemed to have satsified the requirement. 


We are awaiting further clarificaton on these points from DIBP and will provide further updates once available.

Calculating 'Payroll'

As a general rule, payroll includes:

• wages and salaries as per state payroll legislation, and
• payments made to contractors or subcontractors if the work completed is related to services or products provided by sponsor

If the business does not have ‘a payroll’ they are expected to count Directors' salaries, fees and drawings, or the profit of the business.

Timing of Training Activities

Payroll and training expenditure must be for the same period.

From July 2017, it has been clarified that this expenditure may be for the 12 months prior to lodgement of an application, or for the previous full financial year - this should help employers to gather relevant information and documentation.

Start-up businesses operating for less than 12 months will be required to show they have an auditable plan to meet these benchmarks.

We will provide ongoing updates as information becomes available, including the training requirements from March 2018 when the new ‘Temporary Skills Shortage’ (TSS) visa commences (replacing the current 457 visa).


Whether you are an individual visa holder considering how these changes affect you personally or an employer wondering how these and the further proposed changes affect your ability to recruit globally please feel free to contact us at Nevett Ford to see how we are able to assist. 

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Employer Nomination Scheme (Subclass 186 Visa) - Changes Commence

Further to the announcement earlier in the year by the Department of Immigration and Border Protection (DIBP) the first wave of amendments to the Employer Nomination Scheme have been released, with most changes taking effect from 1 July 2017. 

The major talking points from these amendments include:

• The reduction of the upper age limit from 49 to 44 years of age for an applicant (Direct Entry Stream);
• The removal of the exemption from providing a skills assessment due to earnings being above the high income threshold (Direct Entry Stream);
• The removal of the exemption from providing evidence of competent English due to earnings being above the high income threshold (Direct Entry Stream);
• A change in the level of English Language Skill required by primary applicants (Temporary Residence Transition Stream).  This change has increased the requirements from vocational to competent which in practice this means an IELTS test score of at least 6 in all bands (or equivalent test); and
• The introduction of specific requirements, for particular occupations (known as caveats) for applications made under the Direct Entry program.  This now mirrors that which applies under the Temporary Work 457 visa program which was originally introduced in April 2017. 

High Income Threshold Exemptions
While most of the above reforms apply on to applications lodged after 1^st July 2017, both the English Language and Skills Assessment exemptions where the High Income Threshold was met were retrospectively applied to applications lodged but not finally determined by that date.  The subsequent media release made by the DIBP clarifying that these amendments would not be applied to applications lodged before 1 July 2017 has not yet been backed by formal legislative amendment supporting this statement.

Reforms Overall
In an earlier blog post we outlined the timetable of changes which is taking place.  The above represents step one of the broader reform agenda due to affect both the Temporary Work Visa program (Subclass 457) and the Employer Nomination Scheme (Subclass 186). This agenda will see changes rolled out on an on-going basis until March 2018, by which time all announced reforms will have been implemented. 

Whether you are an individual visa holder considering how these changes affect you personally or an employer wondering how these and the further proposed changes affect your ability to recruit globally please feel free to contact us at Nevett Ford to see how we are able to assist. 

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Migration Changes: July 2017 - March 2018

There is a large number of changes to migration law from July 2017 through to March 2018. 


1st July 2017
  

Processing Fees

Processing Fees are set to increase in line with the forecasted Consumer Price Index. Visa fees will be indexed annually from July 2017 onwards. Indexation will not apply to the second instalment of visa fees. 

457 Visa Changes

• Occupation Lists: The STOL occupation list will be reviewed and condensed further.
• English Language Requirements: English language test exemptions for applicants with a salary of over $96,400 will be removed.
• Character: Provision of penal clearance certificates will become mandatory. 

Additional Pathway to Permanent Residency for New Zealand Citizens

An additional pathway to Permanent Residency will be available from the 1st of July 2017 for New Zealand citizens who are special category visa holders, have been in Australia for at least 5 years, have arrived after the 26th February 2001 and can demonstrate set annual minimum income levels.

Up to 80,000 New Zealanders are expected to become eligible for Permanent Residency and applications are expected to be capped and queued. 

General Skilled Migration Changes

• Reduction of the Maximum Age:  The maximum age for the Skilled Independent Subclass 189 visa is set to decrease from 49 to 45 years.
• Revision of Skilled Occupation Lists:  MLTSS and STOL occupation lists are likely to be reviewed and some flagged occupations, particularly in the engineering sector are likely to be removed.
• Limitation of Skilled Invitation Numbers: Occupations ceilings indicating maximum numbers of invitations that can be issued to the Skilled Independent Subclass 189 and Skilled Regional Provisional Subclass 489 visa applicants will be released.
• State Sponsorship: Nominated Skilled State Migration programs will reopen. Many occupations are expected to be filled quickly and we recommend applicants to lodge their applications early. 

November 2017

New Temporary Sponsored Parent Visas

The introduction of the new temporary sponsored parent visa for bringing in overseas parents of Australian citizens and permanent residents has been postponed to November 2017. 15,000 visas will be made available annually. The visas will be valid for 3 or 5 years at a cost of $5,000 and $10,000 respectively.  The new parent visa will be renewable for a combined maximum of 10 years. 


December  2017

Employer Sponsored Migrants

The DIBP will commence the collection of tax file numbers for current 457 visa holders and other employer nominated and sponsored migrants. The resulting data will be matched with the ATO’s tax records to ensure that visa holders are not paid less than their nominated salary. 

The DIBP will commence the publication of details of sponsors sanctioned for failing to meet employer obligations.


Early 2018

Partner Visas

Partner Visa Sponsorship changes will not proceed as of the 1st July 2017. The new regulations proposed that partner visa sponsorship applications would need to be lodged under stricter criteria and approved before the overseas partner visa application could be lodged.

The new 2 step process is expected to delay the lodgement of the overseas partner application and require the overseas partner to have a valid visa until a visa application for the overseas partner can be lodged.The bill proposing the new regulations is currently before the Senate and as such has not been enacted. It is likely to not come into effect until 2018.

We recommend that our clients take advantage of the deferral of the new regulation and lodge their sponsorship and partner visa application prior to the 2018 changes.

March 2018

Pathways to Permanent Residency for Current 457 Visa Holders
 

Current 457 visa holders will no longer be able to apply for Permanent Residency under the Direct and Employer Nominated Transition Streams if their occupation is no longer on the long and medium term occupation lists. We recommend that current 457 visa holders take advantage of existing transition streams and permanent employer nomination schemes to lodge their application for permanent residency as soon as possible.  

TSS Program Replaces 457 Visa Program

From March 2018, the current 457 visa program will be abolished and replaced with the new TSS visa program. The TSS visa will be comprised of a Short-Term stream allowing stays of up to two years, and a Medium-Term stream allowing stays of up to four years.

Short-Term Stream
 
The Short-Term stream is designed for Australian businesses to fill skill gaps with foreign workers on a temporary basis, where a suitably skilled Australian worker cannot be sourced. The Shot-Term stream visa is renewable only once.  The STOL occupation list will apply for Short-Term Stream applicants. 

Medium-Term Stream
 
The Medium-Term stream will allow employers to source foreign workers to address shortages in a narrower range of high skill and critical need occupations, where a suitably skilled Australian worker cannot be sourced.  Only the Medium-Stream visa holders may renew their visas onshore and may apply for permanent residence pathway after working for three years in Australia. The MLTSS occupation list will apply for Medium-Stream visa applicants.


Tighter Regulations
 
For both streams tighter regulations will be introduced including:

• Increased Work Experience Requirements
• Higher English Language Levels Requirements
• Mandatory Labour Market Testing
• Set Australian Market Salary Rates
• Additional Character, Anti-Discrimination and Training Requirements.

Contact Nevett Ford Lawyer today for specific advice regarding your visa situation. 

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