Resident Return Visa (subclass 155) – absence of more than 5 years

Even if you have been absent from Australia (as a permanent resident) for more than 5 years, you may still be eligible for a Resident Return subclass 155 visa if you can show you have ‘substantial ties’ with Australia and there were compelling reasons for your absence.

For example, ‘substantial ties’ can include:

·         Substantial ties which are of benefit to Australia;

·         Substantial business ties of benefit to Australia;

·         Substantial cultural ties of benefit to Australia;

·         Substantial employment ties of benefit to Australia;

·         Substantial personal ties of benefit to Australia.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

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New Post Study Arrangements for Student Graduates - subclass 485 TR visa

The subclass 485 visa now provides recent graduates with the opportunity to spend more time in Australia following their studies to gain practical experience to accompany their Australian qualification(s).

Significant changes were made to the subclass 485 visa on 23 March 2013. Subclass 485 visa applicants must now apply in either the Graduate Work stream or the Post Study Work stream. Each stream of the new subclass 485 visa has its own specific requirements that applicants must satisfy for their application to be successful.

1.    The Graduate Work stream is for international students who have recently graduated with skills and qualifications that relate to an occupation in demand in the Australian labour market, as determined by the Skilled Occupation List (SOL);

2.    The Post-Study Work stream is for international students who have recently graduated with a bachelor’s, master’s or doctoral degree from an Australian educational institution, regardless of their field of study. This stream of the subclass 485 is only available to international student who applied for an were granted their first Australian student visa on or after 5 November 2011, which is the day the genuine temporary entrant requirement was introduced in the student visa program.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

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457 Visa Holders – Your rights & the Worker Protection Act 2008

You are entitled to receive pay and conditions at least as good as Australian workers who are doing the same work at the same workplace.

Under the laws of the Worker Protection Act 2008, your 457 sponsor must:

·         Show that they are providing you equal pay and conditions of employment to Australian workers performing equivalent work in the same location;

·         Not make deductions from your pay (other than tax) without your permission;

·         Only employ you in your approval skilled occupation;

·         Pay reasonable and necessary travel costs to allow you and your family members to leave Australia, if requested in writing by you, your family or DIBP on your behalf;

·         Not ask you to pay back the cost of your recruitment, including migration agent/lawyer costs or the costs associated with becoming or being an approved sponsor;

·         Make sure that you do not work for other employers;

·         Not pay you in cash.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

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I’m Australian, but is the E-3 visa right for me?

There is a major misconception that if you are Australian, then the E-3 visa is always the best visa option.  This is not necessarily the case, however.  Here are some examples of scenarios where the E-3 visa is not likely to be the best option for you:

·         The US employer is a start-up

·         You will need to stay on the Australian payroll of the company during your US assignment

·         You do not hold a Bachelors Degree or have at least 12 years of work experience in your field

·         You hold a Bachelors, but not in the field in which you will be working in the USA

·         The US role does not require a Bachelors Degree

If any of the above factors apply, then the E-3 may not be the best option for you.  In some cases, such as where the US employer is a start-up, the E-2 Treaty Investor Visa may be a better route.  You can read more about the E-2 at my previous blog: 

http://100cupsofcoffee.org/2013/06/26/us-visa-options-for-australians-e2-investor-visa-part-2/

-Noah Klug, US immigration attorney based in Melbourne, Australia

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Can I get an E-3 visa for the United States?

You may qualify for the special E-3 visa for the USA if:

1.       You hold an Australian passport; AND

2.       You have a job offer for a professional-type role in the US; AND

3.       Either you hold a Bachelors Degree in the field in which you will be working, OR you have at least 12 years work experience in your field

If you meet these requirements, then you can get an E-3 visa that will provide you with the following benefits:

·         Quick processing – only about 4-6 weeks from start to finish in most cases;

·         Stay in the US for up to two years;

·         Renew the visa in two-year increments an unlimited number of times;

·         Get work authorisation for your spouse;

·         Obtain dependent visas for your children that will allow them to attend schools in the US;

·         Make the process much easier for your US employer because no petition is required to be filed with US Citizenship and Immigration Services.

It is important that you speak with a US immigration lawyer experienced with this unique visa category, however, and get the right advice – otherwise, you risk your application being denied.

You can read more about the E-3 visa category at my previous blog here: http://100cupsofcoffee.org/2013/04/10/us-visa-options-for-australians-part-1/

-Noah Klug, US immigration attorney based in Melbourne, Australia

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Is There a Pathway to Permanent Residence Under the Employer Nomination Scheme for Persons Over the Age of 50?

In most cases, the answer to this is “No”, however there are a number of exceptions which it is important to be aware of.

Under the migration regulations there are a number of classes of person who are exempt from the age criteria. These are as follows:

- Ministers of religion who have applied for a visa to occupy a position as nominated by a religious institution, or,

- certain researchers, scientists and technical specialists who have applied for a visa to occupy a position nominated by an Australian scientific government agency; or,

- certain senior academics who have applied for a visa to occupy a position nominated by a university in Australia,

- persons who have been working for the nominating employer as the holder of a subclass 457 visa for at least the 4 years immediately before applying and whose annual earnings for each year in the four-year period was at least equivalent to the Fair Work High Income Threshold (currently $129,300), or,

- certain medical practitioners.

Anyone over the age of 50 who believes their circumstances may match any of those outlined above should seek legal advice in relation to their permanent prospects.

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In-house (On-the-job) Training Expenditure for 457 and 186 Visa Applications

One of the most onerous requirements for employer sponsored visas is the payment not only in the 12 months preceding the application, but also for each year of the most recent 457 Sponsorship Approval, of either 1% or 2% of the sponsoring business’ payroll in training the Australian employees of the business.

This requirement not only can translate in thousands and thousands of dollars in training for employers but failure to evidence this cost may jeopardise any chance of visa success for your prospective applicants.

The specification of training benchmarks in accordance with subregulations 2.59(d) and 2.68(e) (Instrument IMMI 09/107), allows for on-the-job training to be considered for this expenditure but only if it complies with certain criteria, like a structured timeframe and clearly identified skills increases.

Our experience will help employers maximise money already spent by their company in training their staff and avoid costly mistakes.

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Who can get an Enterprise Migration Agreement (EMA)?

Who can get an Enterprise Migration Agreement?

Enterprise Migration Agreements (EMAs) are available to resources projects with capital expenditure of more than two ($2b) billion dollars and a peak workforce of more than 1500 workers.

To be approved for an EMA, projects need to develop a comprehensive training plan, demonstrating how the project will invest in the up-skilling of Australians to meet future skill needs in the resources sector. This plan will need to set measurable targets for training that develops skills in occupations where there are known or anticipated shortages.

Labour from outside Australia will only be supplementary, with resources projects required to demonstrate effective, genuine and ongoing local Australian recruitment efforts.

What is the benefit of an Enterprise Migration Agreement?

Rather than each sub-contractor having to negotiate their own labour agreement, the bulk of negotiation occurs with the project owner. This means project owners can plan their workforce needs from the outset, and sub-contractors can sign up to an individual labour agreement.

The Department of Immigration & Border Protection (DIBP) says that it aims to negotiate agreements within three (3) months from the time a project owner submits a complete request for an EMA. Labour agreements and visa applications associated with an EMA will be subject to expedited processing.

Under an EMA, occupations that are not eligible for standard migration programs can be sponsored, provided the project can justify a genuine need that cannot be met from the Australian labour market. This will be critical for resources projects, particularly during the construction phase.
 

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.auor by telephone: +61 3 9614 7111 if you require any advice or assistance.

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NO FURTHER STAY visa condition - waiver of condition 8503

What does visa condition 8503 mean?

If condition 8503 (no further stay) has been imposed on your visa, it means you cannot apply for another visa (other than a protection visa or a temporary visa of a specified kind) to extend your stay while you are in Australia.

What visas is condition 8503 imposed on?

Condition 8503 can be imposed on many Visitor and Temporary Residence visas. However, condition 8503 is a mandatory condition of the following visas:

• Sponsored Family Visitor visa (subclass 679)


• Tourist visa (subclass 676) granted under the Approved Destination Status scheme operating out of the People's Republic of China


• Sponsored Business Visitor visa (subclass 459) if the application was made before 1 July 2006


• Professional Development visa (subclass 470)


• Work and Holiday visa (subclass 462) if you have previously held two subclass 462 visas.

How to check if condition 8503 has been imposed on your visa

If condition 8503 has been imposed on your visa, you will see the code '8503' listed under the conditions on the visa label in your passport. If you don't have a visa label in your passport there will be information in your grant letter advising that condition 8503 has been imposed on your visa. 

Requesting a waiver of condition 8503

It is not possible to request that a mandatory condition 8503 be left off your visa at the time you apply for the visa. However, if you are in Australia holding a visa with condition 8503 imposed on it and your circumstances change, there is provision to waive the condition in limited circumstances that are set out at Migration Regulation 2.05(4) of Australia's migration legislation.

This regulation states:

The circumstances in which the Minister may waive [condition 8503] are:

(a) since the person was granted the visa that was subject to the condition, compelling and compassionate circumstances have developed:

(i) over which the person had no control; and

(ii) that resulted in a major change to the person's circumstances; and

(b) if the Minister has previously refused to waive the condition, the Minister is satisfied that the circumstances mentioned in paragraph (a) are substantially different from those considered previously; and

(c) if the person asks the Minister to waive the condition, the request is in writing'.

Because this is law, it is not possible for the department to consider waiving the condition for any other reasons.

Therefore, the departmental officer who considers your request must be satisfied that all the above requirements apply in your case, namely that:

• the circumstances that have developed since you were granted the visa are both compassionate and compelling


• you had no control over these circumstances


• these circumstances have resulted in a major change to your personal circumstances.

A waiver is not automatic – each request is decided by assessing your particular situation against the above legal requirements.

If your visa will soon expire

Requests for waiver of condition 8503 cannot be decided 'on the spot' as they require careful consideration. Therefore if your visa will expire soon after you submit a request for waiver, it may not be possible for the department to make a decision on your request before your visa expires. If your visa expires before the department can decide your request, you will have to apply for a Bridging Visa or depart Australiain order to avoid being unlawfully in Australia. 

Lodging a request for waiver of condition 8503 does not automatically mean that you will be lawfully in Australia until the request is decided. It is your responsibility to ensure you have a valid visa for the whole of your stay in Australia.

If condition 8503 is waived

If condition 8503 is waived, then you can apply for another visa without having to depart Australia. There is no guarantee that you will be granted another visa as this will depend on whether you satisfy the legal requirements for that visa. In addition, if another visa is granted to you it may also contain condition 8503.

If condition 8503 is not waived

If condition 8503 is not waived, you will not be able to apply for another visa (see above) while you are in Australia. When you depart Australia, condition 8503 will cease and will not prevent you from applying for another visa outside Australia.

Decision cannot be reviewed

The decision not to waive condition 8503 cannot be reviewed by the Migration Review Tribunal (MRT) nor by another department office. The Minister for Immigration and Border Protection does not have any power to intervene if condition 8503 is not waived.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.au or by telephone: +61 3 9614 7111 if you require any advice or assistance.

 

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Partner Visa Australia

Partner visas

For the purposes of Australian migration, the term 'partner' means the husband, wife or de facto partner (opposite or same-sex) of the Australian sponsor (‘partner category’ includes partner and prospective marriage visa classes).

The parties in a married or de facto relationship must have a mutual commitment to a shared life together, to the exclusion of all other persons. The relationship must be genuine and continuing and the parties must live, or intend to live together on a permanent basis.

Although applying for permanent residence through a partner visa is a two stage process, only one application is required. The one application includes an application for a temporary and a permanent visa. Applicants can apply in or outside Australia.

At both stages of the process, the Department of Immigration and Border Protection (DIBP) must be satisfied that the parties are in a genuine partner relationship.

De facto partners must have been in the relationship for at least 12 months immediately before lodging their application (unless compelling circumstances exist).

While it is not common for permanent visas to be granted less than two years from the date of application, in certain limited circumstances it is possible for a visa to be granted in this time. An example of when a visa may be granted within two years is when the relationship is long-term at the time of application (long-term is defined as three years, or two years if there is a dependent child (excluding step-child) of the relationship).

Dependent family members of the applicant, such as children or lone aged relatives, may be included in the application.

Fiancés overseas – Prospective Marriage visa (subclass 300)

A person overseas who intends to marry their Australian fiancé may apply for a Prospective Marriage visa.

It is a requirement of a Prospective Marriage visa that the parties have met as adults and be known to each other in person.

Fiancés who apply successfully for a Prospective Marriage visa receive a temporary visa which is valid for nine months from the date of the visa grant. They must travel to Australia and marry their intended spouse within that period. If fiancés want to remain permanently in Australia they should then apply for a permanent visa such as a partner visa. If all legal requirements are met, partner visa applicants will be granted a temporary partner visa, followed by a permanent partner visa if the relationship is still continuing at the end of two years after lodgement of the partner visa application.

Fiancés in Australia

People already in Australiaon temporary visas are unable to extend their stay in Australia by applying for a visa as a fiancé. There is no visa category available to cover this situation.

However, if the marriage takes place during the period of authorised stay in Australia, the person may be eligible to apply in Australia for a partner visa.

Sponsorship

All applicants for partner migration, whether they apply in or outside Australia, must be sponsored by their partner (or by a parent of their partner in certain circumstances).

The sponsor must be an Australian citizen, Australian permanent resident or eligible New Zealand citizen and be 18 years of age or older.

Limitations on sponsorship

There are limits on the number of partner visa category sponsorships a person may make and the time-frame in which they are made:

• A limit of two approved sponsorships or nominations can be made, with a minimum of five years apart.
• If the sponsor was sponsored or nominated to Australia as a partner, they must wait five years before sponsoring a partner or fiancé.
• Approved sponsorships or nominations are those which result in the applicant being granted a partner or Prospective Marriage visa.

The limitations may be waived in compelling circumstances, including:

• if the previous fiancé or partner has died or abandoned the relationship, leaving young children
• if a new relationship is formed that is long-standing or involves dependent children of the relationship.

Dependent children and sponsorship limitation

Dependent children are usually included in, and processed as part of, their parent's partner visa application. There are cases where a dependent child is not considered for the temporary (first stage) visa because they are not living with their parent.

Where a dependent child is outside Australia and their parent is in Australia and has been granted a temporary spouse, partner or interdependency visa, the child can apply for a temporary Dependent Child visa.

This visa will enable the child to travel to Australia and apply to be added to their parent's permanent visa application.

To be granted the visa, the child must be under 18 years of age or be financially dependent upon the parent in Australia. It is important to note that the child must apply for this visa before the parent's permanent visa application is decided.

Permission for dependent children under 18 years of age to migrate must be obtained from another parent or any other person with a legal responsibility for the child. Alternatively, evidence must be provided that the partner visa applicant or their sponsor has sole legal right to remove the child from the country.

Where the sponsor has a conviction or an outstanding charge for an offence against a child, if the application includes a dependent family member under 18 years of age, the sponsorship cannot be approved (except in very limited circumstances). There is also a requirement that there is no compelling reason to believe that the grant of the visa would not be in the best interests of that dependant.

In order to assess the sponsorship application and the best interests of the child requirement, sponsors of children under 18 years of age are required to submit an Australian Federal Police (AFP) National Police Check and/or foreign police certificate/s, depending on the sponsor's circumstances. If the sponsor has spent a total of 12 months or more in Australia since turning 16 years of age, the sponsor must provide an AFP National Police Check. The sponsor must also provide police certificates from each country in which they have spent a total of 12 months or more in the last 10 years since turning 16 years of age.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.au or by telephone: +61 3 9614 7111 if you require any advice or assistance.

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Adoption visas

     

In Australia, the processing of inter-country adoptions is the responsibility of state and territory adoption authorities such as departments of family services. These authorities manage arrangements for adopting children from overseas including assessing and approving prospective adoptive parents. The Australian Government, through the Attorney-General’s Department, has the responsibility for managing existing programs and negotiating new programs with other countries.

The department cannot provide assistance to arrange adoptions. The department’s role is to assess and decide applications for visas in accordance with the requirements of the Migration Regulations.

To be eligible for an adoption visa, the child must have been:

• adopted (or is to be adopted) with the involvement of an Australian state or territory adoption authority (either under the Hague Convention or another adoption agreement); or
• adopted privately by expatriate Australians who have been living overseas for more than 12 months at the time of lodging the visa application; or
• adopted under the Hague Convention and the adoption was arranged between 2 Hague convention countries other than Australia.                

Relationship to Sponsor

The child must have been adopted by an “adoptive parent- or be in the process of being adopted by a “prospective adoptive parent- and be sponsored by that person.

The “adoptive parent- or “prospective adoptive parent- must be an Australian citizen or permanent resident or eligible New Zealand citizen.

An adoptive parent includes a person who:

• has adopted the child under the laws of a country other than Australia and who has been living outside Australia for the 12 months prior to lodging the Adoption visa application; or
• has adopted the child under the Hague Convention. The parent must possess a valid adoption compliance certificate testifying that the child has been adopted under the Hague Convention.

A prospective adoptive parent includes a person who:

• has been approved by an Australian state or territory adoption authority as a suitable person to adopt the child and who intends to bring the child to Australia under the supervision of that authority - in this case, adoption will be completed in Australia; or
• has been allocated the child for adoption under the provisions of the Hague Convention.

Further information on the different types of adoption arrangements covered by this category are provided below. If the child was adopted before the sponsor became an Australian citizen or permanent resident or eligible New Zealand citizen, they cannot apply in this category, they should apply in the 'child' visa category.

Adoptions involving an Australian state or territory adoption authority

1. Hague Convention

On 1 December 1998, Australia became a party to the Hague Convention on the Protection of Children and Cooperation in respect of the Intercountry Adoption (“the Adoption Convention- .

If the child has been allocated to a prospective adoptive parent for adoption under the Adoption Convention, a letter verifying this must be provided from the Australian state or territory adoption authority which is supporting the adoption. This letter should be submitted together with the visa application.

Provided the child meets the health criteria, the adoption will take place and the relevant overseas authority will issue an “adoption compliance certificate- which certifies that the adoption meets all the requirements of the Adoption Convention. A visa cannot be granted until this certificate has been issued and a certified copy provided to the department.

In some cases, the laws of the overseas country do not provide for full adoption and arrangements may be made for the adoption to be finalised in Australia. If this is the case, a letter from the relevant overseas authority stating that the child is allowed to travel to Australia in the care of the prospective adoptive parents for adoption in Australia must be provided to the department.

If the adoption took place between 2 other Adoption Convention countries and did not involve Australia, a valid “adoption compliance certificate- issued by the relevant authority in the country in which the child was adopted must be provided to verify this. The child will still need to satisfy the health and other criteria for entry to Australia.

2. Bilateral agreements

Australia has bilateral agreements with countries in South America, Asia, Europe, Africa and the Pacific. Specific information on these programs can be obtained from the relevant state and territory adoption authorities.

These agreements are intended to ensure that children in overseas countries are protected from being bought or sold and to provide protection for families who wish to adopt a child from overseas (as they can be assured that the child is legally available for adoption).

For the child to be adopted under one of these agreements, the prospective adoptive parents must have been approved by an Australian state or territory adoption authority as suitable persons to adopt the child. If this is the case, the child will have been allocated to them for adoption by the adoption authority or child institution in the child’s home country. The prospective adoptive parents must produce a letter from the Australian state or territory adoption authority to verify this when they lodge the visa application on behalf of the child.

The department must also be satisfied that the laws relating to adoption in the country in which the child is normally resident have been complied with and that the relevant overseas authority has approved the child’s departure for Australia.

Adoptions not involving an Australian state or territory adoption authority

Sometimes Australian citizens, permanent residents or eligible New Zealand citizens living overseas adopt a child while they are overseas and the adoption did not involve an Australian state or territory adoption authority. The child may have been adopted in the country in which they are living, or from another country. In this case, the parents must meet the following requirements:

• they have been living overseas for more than 12 months at the time of the visa application and they did not deliberately live overseas in order to get around the entry requirements for adopting an overseas child; and
• they have lawfully acquired full and permanent parental rights by the adoption - this means that under the laws of the child’s country, the natural parents no longer have any legal responsibility for the child.

The department must also be satisfied that the laws relating to adoption in the country in which the child is normally resident have been complied with.

A word of caution on adoptions

• An adoption visa cannot be granted to a child who has been adopted in circumstances other than those outlined above, even if the child has been adopted lawfully in another country.
• State and territory adoption authorities will not generally support the adoption of a child who is a relative, nor a specific child where the adoption has not been arranged by that authority.
• “Full and permanent adoption- does not exist in the laws of some countries. An adoption order which does not grant full parental rights to the adoptive parents is not acceptable for the grant of a visa.
• If you wish to proceed with an adoption that has not been arranged by your state or territory adoption authority, it is strongly recommended that you first seek legal advice both in Australia and the overseas country, to ensure that the adoption can be recognised, and that the child will be eligible to enter Australia.

Guardianship arrangements

Unless the adoption is completed overseas under the Adoption Convention, an overseas adoption order does not receive automatic recognition under Australian law.

Where the adoption is not recognised under Australian law, the child will enter Australia under the guardianship of the Minister for Immigration and Border Protection. This arrangement is set down in the Immigration (Guardianship of Children) Act 1946 (“the IGOC Act- . The IGOC Act provides a framework for state and territory adoption authorities to supervise the adoption process in Australia.

The Minister’s guardianship powers are delegated to the relevant state/territory adoption authority. These guardianship arrangements cease to apply once the child obtains Australian citizenship, in most cases when an Australian adoption order is made for the child.

Please contact Ryan Curtis-Griffiths, Director, Nevett Ford Lawyers Melbourne by email: rcurtisgriffiths@nevettford.com.au or by telephone: +61 3 9614 7111 if you require any advice or assistance.

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