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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Age Limit for 189 Visa Points Tested Stream Lowered to 45 Years

Recent legislation has lowered the age limit at the time of invitation for subclass 189 points tested independent skilled visas to 45 years, requiring an applicant to be under 45 years of age at the time of invitation in order to make a valid application for this visa under the points tested stream.


Transitional arrangements in the legislation still allow for a person over 45 but below 50 to respond to an invitation if the invitation has already been issued by DIBP, however it is anticipated that with the passage of the new legislation, no further invitations will be issued to applicants who are 45 years of age or older for the points tested stream of this visa.


While the age has been lowered for applicants for the points tested stream of the subclass 189 visa, there is no age limit for the new NZ stream of the subclass 189 visa which NZ citizens holding a subclass 444 visa may be eligible for after being usually resident in Australia for 5 years and meeting income requirements.


Contact Nevett Ford Lawyers Melbourne today for advice and assistance.

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Budget Impact on Migration Program

Listed below is a summary of some of the budget announcements which will have an effect on immigration related issues:

1. Annual intake; there is to be no change to the migration program numbers which will remain at 190,000 places for the 2017/18 year,
2. Temporary employment visas; as announced prior to the budget there have been significant changes to the 457 scheme; several hundred occupations are no longer eligible for temporary work purposes, the 457 Visa will soon be abolished and replaced by a new visa to be known as the dual stream Temporary Skills Shortage Visa and only those employees whose occupations appear on the new Medium and Long-term Strategic Skills List will be eligible for transition to permanent residence after three years of employment with the sponsoring employer (previously two years).
3. Training benchmarks; a levy, referred to as the Skilling Australians Fund Levy, will replace the current training benchmarks for employers sponsoring workers on 457 and 186 visas. From March 2018, businesses with turnover of less than $10 million per year will be required to make an upfront payment of $1200 per visa per year for each employee on a Temporary Skill Shortage visa. A one-off payment of $3000 will be required for each employee being sponsored for permanent employment under either the Employer Nomination Scheme or Regional Sponsored Migration.
   For businesses with turnover in excess of $10 million the payments will be $1800 and $5000 respectively.
4. Temporary sponsored parent Visa; this is a new visa to be introduced in November 2017 with an allocation of 15,000 visas annually. It will allow the temporary stay of sponsored parents in Australia for periods of up to three or five years. The visa may be renewed from outside Australia to allow a cumulative stay of up to ten years. The sponsor (the Australian child) will be responsible for any public health expenditure incurred by the visa holder whilst in Australia.
5. Foreign investors; A Foreign Investors Tax Levy of $5000 per year will be imposed on foreign investors who do not occupy or lease their Australian properties for at least 6 months of the year. In addition, other tax measures aimed at foreign investors -principally dealing with capital gains tax - have been announced.
6. Age Pension and Disability Support Pension Eligibility; from 1 July 2018 more strict residency rules for new migrants to access Australian pensions will be introduced. Claimants will be required to have 15 years of continuous Australian residence before being eligible to receive the age pension or a disability support pension. Certain exemptions will apply.

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Changes to Employer Nominated Permanent Residence (subclass 186 visa)

In addition to the 457 changes recently and unexpectedly announced by Prime Minister Malcolm Turnbull, the Permanent Employer Sponsored Skilled Migration Program will also undergo a number of changes. The 457 visa has historically been a pathway to Australian Permanent Residence under this program.

From 19 April 2017

• Applicants under the Direct Entry Stream will only be eligible to apply if their nominated occupation is on the MLTSSL or STSOL
• Applicants under the Temporary Residence Transition Stream can still apply as usual (even if their nominated occupation is no longer on the STSOL or MLTSSL)

From 1 July 2017

• Occupation lists: The STSOL and MLTSSL will be further reviewed based on advice from the Department of Employment and Department of Education and Training
• English language requirements: A score of IELTS 6 in each component will be required (or equivalent test)
• Age: Applicants under the Direct Entry Stream must be under the maximum age requirement of 45 at the time of application. The maximum age requirement of 50 at the time of application will continue to apply to applicants under the Temporary Residence Transition Stream
  

From March 2018

• Salary: Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT), currently $53,900 excluding superannuation
• Residency: The eligibility period under the Temporary Residence Transition Stream will be extended from 2 years to 3 years
• Work experience: At least 2 years of post- qualification relevant work experience will be required
• Age: All applicants (under both the Temporary Residence Transition Stream and Direct Entry Stream) must be under the maximum age requirement of 45 at the time of application
• Training requirement: Strengthened training requirement for employers to contribute towards training Australian workers

Who is affected?

It is expected that further details and clarifications to be announced by the Government over the coming weeks. 

Individuals who were preparing an application under the Direct Entry Stream and their occupation has now been removed - No longer eligible under the Direct Entry Stream

Individuals turning 45 years old - From 1 July 2017, applicants under the Direct Entry Stream must be under 45 years at time of application. From March 2018, all applicants must be under 45 years at time of application.

Individuals who were preparing applications under the Temporary Residence Transition Stream - Minimal impact if lodged before March 2018 (although new English language requirement applies from 1 July 2017).

Please contact Nevett Ford immigration lawyers to discuss your individual circumstances by telephone + 61 3 9614 7111.

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Australian Permanent Residency - 'probabtion period' proposed

Visa changes could put migrants on ‘probation’ before being granted permanent residency

Fairfax Media recently published leaked sensitive papers which reveal possible changes to put migrants on probation before being deemed fit for permanent residency and Australian citizenship.

The leaked papers were prepared for a meeting between the Department of Social Services and the Department of Immigration and Border Protection and state how the Turnbull government hopes to save money by delaying welfare and benefits to migrants, such as social security payments which become accessible once permanent residents are granted Australian citizenship.

The changes would involve the creation of a new category of migrants, referred to as ‘provisional migrants’. If the changes were to go ahead, moving existing visa holders to the new category would make it more difficult to obtain a direct pathway to permanent residence and subsequently, Australian citizenship.

“This proposal has the potential to fundamentally change access to social security payments for newly arrived migrants, who already serve a waiting period before access to government services,” the document notes.

The leaked papers also discuss the national security committee and cabinet discussions over the proposal’s potential flaws. It warns that reduced access to social security could be in breach of international obligations and that the reforms could create double standards by treating migrants differently to Australian-born residents. It also questions whether the savings will be as significant as The Department of Immigration and Border Protection expect.

Source: SBS News and Sydney Morning Herald.

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VISA UPDATE: Entrepreneur Visa Australia

Entrepreneur Visa

The Government of Australia introduced the National Innovation & Science Agenda with the objective of taking Australia through extraordinary technological change that is intended to transform the way we live, work, communicate and pursue good ideas.

In order to advance the Agenda, the Government introduced the New Entrepreneur visa to attract the best overseas start-up talent into the country.

 

The new Australian Entrepreneur visa has been established for entrepreneur with innovative ideas and financial backing from third parties.  The new visa allows entrepreneurs with AUD200,000 in funding from specified third parties to develop and commercialise their innovative ideas into Australia.  The most important part of this visa is the provision of a pathway to Australian permanent residency.

 

Eligibility (summary)

• Business Innovation and Investment (Provisional) visa (subclass 188), Entrepreneur Stream
• Applicant must be under 55 years of age, unless a waiver is provided by a state or territory government.  A state or territory can waive the age requirement if the proposed complying entrepreneur activity will be of ‘exceptional’ economic benefit to the nominating state or territory
• Applicant to provide evidence of ‘competent’ English at the time the applicant is invited to apply for the visa
• Applicant to undertake or propose to undertake a complying entrepreneur activity in Australia
• Applicant has a genuine intention to continue this activity
• Applicant must be nominated by a state or territory government.

 

Migration Regulation 5.19E sets out the criteria to be met for an activity to be a complying entrepreneur activity.  This regulation requires that the activity must relate to an innovative idea that is proposed to lead to the commercialisation of a product or service in Australia or the development of a business or enterprise in Australia. 

The following requirements must be met:

• There must be one or more legally enforceable agreements under which funding is to be provided to the entrepreneurial entity (which may be the applicant, a body corporate, or a partnership) by one or more entities
• The total amount of funding provided or to be provided under the agreement or agreements must be at least AUD200,000
• If the applicant is not the entrepreneurial entity, the applicant must personally hold at least a 30% ownership share in the entrepreneurial entity at the time the agreement or agreements are entered into, which prevents more than three applicants being eligible in relation to any one entrepreneurial entity
• Under the agreement or agreements, at least 10% of the funding must be payable to the entrepreneurial entity within 12 months of the day the activity starts to be undertaken in Australia (i.e. $200,000)
• There must be a business plan that is appropriately formulated to lead to an outcome.

Source of funds

Sources of funding are limited to:

• Commonwealth agencies
• State and territory governments
• Publicly funded research organisations
• Investors registered as a Venture Capital Limited Partnership/s (VCLP) or an Early Stage Venture Capital Limited Partnership/s (ESVCLP).

There are a number of state government funded grants for start-ups:

• Victoria: Launch Vic have $60 million fund
• New South Wales: Jobs for NSW – Minimum Viable Product Grants and Building Partnership Grants have $190 million over four years
• Queensland: iLab incubator and Accelerator provided $80 million to date
• Western Australia: Innovation voucher program
• South Australia: Innovative voucher Program
• Commonwealth Government: Innovation Program.

The main funding will come from Venture Capital Limited Partnership/s (VCLP) and Early State Venture Capital Limited Partnership/s (ESVCLP) which have overseas and local investors who register under the Venture Capital Partnership/s Act 2002.

• VCLP must have capital in excess of $10 million
• ESVCLP must have capital between $10 million and $200 million.

Exclusions

The following activities are excluded:

• Establishing, purchasing, investing or acquiring an interest in residential real estate.  The term ‘Australian residential property’ includes any Australian land zoned for residential use
• Establishing, purchasing, investing or acquiring an interest in labour hire companies; or
• Purchasing, investing or acquiring an interest in an existing entity (including franchise).

Transition to Australian permanent residence

The criteria for transitioning to permanent residence in the entrepreneur stream are that:

• An applicant holds a subclass 188 visa for a continuous period of four years;
• An applicant has resided in Australia for two out of the last four years; and
• An applicant has demonstrated an overall successful record of undertaking, whether alone or by participating in a business, activities of an entrepreneurial nature in Australia while holding a subclass 188 visa.

An applicant’s record of success will be based upon the number of Australian citizens employed, the nature of the funding and the annual turnover in relation to the activities undertaken.

The Government’s policy document for transition from subclass 188 to the subclass 888 (permanent residence) visa has not been finalised.

Nevett Ford Lawyers Melbourne can provide advice and assistance so please contact us if you are interested in this visa or any other visa type.

 

 

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Subclass 187 Regional Sponsored Migration Scheme visa

The 187 regional Sponsored Migration Scheme visa is designed for skilled workers who wish to work in a regional area in Australia. The RSMS helps businesses in regional, remote or low population growth areas, outside the major metropolitan centres to recruit skilled workers to fill positions that are unable to be filled from the local labour market. This is a permanent residence visa.

You can only apply for the 187 RSMS visa if your nominated position is located in regional Australia. Your sponsoring employer must also be actively and lawfully operating its business in this regional area. Regional areas are basically areas that are outside the major metropolitan centres of Brisbane, Gold Coast, Sydney, Newcastle, Wollongong and Melbourne. The good news is that the whole South Australia, Western Australia, Australian Capital Territory, Tasmania and Northern Territory are classified as regional areas. For eligible postcodes that is outside of the major metropolitan areas, please check here.

This visa allows you to work in Australia under one of the three streams:

• the Temporary Residence Transition stream
• the Direct Entry stream
• the Agreement stream.

The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for two years, while holding a subclass 457 visa, in the same occupation with their nominating employer (who is not subject to a labour agreement and who has lodged a valid nomination with us under the Temporary Residence Transition stream), who wants to offer them a permanent position in that occupation.

The Direct Entry stream is for people who have been nominated by their employer under the Direct Entry stream people who have never, or only briefly, worked in Australia temporary residents who do not qualify for the Temporary Residence Transition stream.

The Agreement stream is for subclass 457 visa holders nominated by an employer through a labour agreement.

Your role must be in a regional area and your nominating employer needs to operate their business in the regional area. Although the employer doesn’t need to only operate their business in this area, or have their registered head office in the regional area. As the nominee, you don’t have to live in the regional area. You can travel to the regional area for work purposes. However, you can’t perform your role remotely. You need to be physically in the regional area to perform your role. For example, if your occupation is IT based, and you’ve been offered a role in Ballarat but you’re able to perform this remotely from Melbourne. You are not eligible to lodge the RSMS visa.

If your role requires you to work in several locations, each of these location must be located within a regional area. Occasionally travelling to non-regional areas for meetings, presentations, training etc. is allowed. But if you need to regularly work outside of regional areas, then the nomination application won’t be approved under the RSMS pathway.

For more information or if you need assistance with a 187 RSMS Visa, contact us at Nevett Ford Lawyers.

 

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Entrepreneur visa

Submitting an EOI

The first step towards applying for an Entrepreneur visa is lodging an Expression of Interest (EOI) in
SkillSelect.

 

To lodge an EOI, you will need to have a funding agreement in place or in negotiation with an approved funding body to develop an innovative venture in Australia. The agreement must be for a minimum of $200,000. You will also need to have a business plan that explains how you will develop your innovative venture in Australia.

 

If you demonstrate a record of successful entrepreneurial activities while holding a provisional Entrepreneur visa, after four years you may be eligible for a Subclass 888 Business Innovation and Investment (Permanent) visa in the Entrepreneur stream. It’s a good idea to familiarise yourself with the criteria for success for the permanent Entrepreneur visa.

 

Nomination from a state or territory government

Once you submit an EOI, you can be nominated by a state or territory government to be invited to apply for an Entrepreneur visa. Each state and territory has different nomination criteria.

 

Lodging an application

If you are nominated by a state or territory government, you will receive an invitation from us to apply for a Business Innovation and Investment (Provisional) visa (Subclass 188).

 

You will need to provide documents about your identity, relationships, children, health, character and

English language ability as part of your application. You will also need to provide evidence of your funding agreement and the business plan for your entrepreneurial venture in Australia.

 

You only have 60 days to lodge your application after receiving an invitation to apply, so it’s a good idea to get your documents ready in advance.

Contact is today if you need advice and assistance.

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52 Occupations flagged for removal from the Skilled Occupation List (SOL)

Australia’s Skilled Occupation List (SOL) is reviewed by the Department of Education and Training annually.  This year, over 50 occupations have been flagged for removal from future Skilled Occupation Lists (SOL).

 

Professional

• Accountant (General)
• Management Accountant
• Taxation Accountant
• Actuary
• Land Economist
• Valuer

 

Medical

• Medical Diagnostic Radiographer
• Occupational Therapist
• Medical Radiation Therapist
• Podiatrist
• Speech Pathologist
• General Practitioner
• Anaesthetist
• Cardiologist
• Endocrinologist
• Intensive Care Specialist
• Paediatrician
• Obstetrician and Gynaecologist
• Psychotherapist
• Psychologist (nec)
• Medical Practitioners nec

 

Legal

• Barrister
• Solicitor

 

Maritime, Resources and Engineering

• Production Manager (Mining)
• Civil Engineer
• Geotechnical Engineer
• Structural Engineer
• Transport Engineer
• Electronics Engineer
• Industrial Engineer
• Mechanical Engineer
• Production or Plant Engineer
• Aeronautical Engineer
• Agricultural Engineer
• Chemical Engineer
• Biomedical Engineer
• Engineering Technologist
• Environmental Engineer
• Ship’s Engineer
• Ship’s Master
• Ship’s Officer
• Naval Architect
• Boat Builder and Repairer
• Shipwright

 

Science

• Other Spatial Scientist
• Medical Laboratory Scientist

 

Other

• Chef
• Veterinarian
• Surveyor
• Cartographer
• Quantity Surveyor

 

Skilled occupations such as engineers, taxation accountants, barristers and solicitors are at risk of being removed from Australia’s 2016/17 skilled occupations lists (SOL), following advice from the Department of Education and Training to the Minister of Immigration and Border Protection.

The SOL is a compilation of occupations for skilled migration with the aim of meeting the medium to long-term skill needs of the Australian economy and is commonly used for non employer sponsored work visas such as the 189 or 489, rather than 457 work visas.

Each year, the Department of Education and Training undertakes a review of the SOL and if there is emerging evidence of excess supply in the labour market for a particular occupation, it is generally flagged for possible removal.

The Department of Education and Training receives submissions from bodies and organisations across the country to assess labour market conditions for the listed occupations. The Australian newspaper recently reported that GP’s, surgeons, anesthetists and other occupations in the health industry are among 41 jobs pushed by the Federal Health Department for removal from the SOL.

The Health Department submission into the review of the SOL read, “Over a longer planning horizon, better management of migration pathways for international health professionals must occur in combination with all commonwealth departments’. The strategy would allow vacancies to be filled by local medical graduates, particularly in regional areas.

SOURCE: SBS

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NEW: ACT Skilled Occupation List - 1 September 2016

The ACT Government has released a new ACT Occupation List effective today, 1 September 2016.  

A summary of the list provides the following information:

• The skills need has eased for restaurant managers, management consultants, solicitors and financial advisers. These occupations are now closed.


• The demand for skills within corporate management, HR and the creative / design sector is increasing. Occupations within these sectors have now opened.


• The ‘open’ status of the following occupations remains unchanged indicating a continual high demand for civil engineers, general practitioners, retail pharmacists, early childhood teachers, architects, medical imaging professionals, registered nurses, counsellors, mechanics, psychologists and real estate professionals. 

Applications for ACT nomination submitted and lodged before 01/09/16 will be assessed against the ‘at time of application’ criteria.

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