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 If so, how far back do they propose to go and how long will details be published before the publication is withdrawn.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.

Read More»

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. 

Read More»

Upcoming Partner Visa Changes: Separate Sponsor Application, 3-Year Provisional Partner Visa

The Department of Immigration & Border Protection (DIBP) has indicated that upcoming changes to the partner visa program will include requiring sponsors to lodge and be approved for sponsorship before their partners can lodge a partner visa application and increasing the time required on provisional partner visas from 2 years to 3 years. It is expected that the sponsor application will attract an additional application fee.


The changes to the partner visa program have not been formally announced and no date has been given for implementation of the new planned changes, and it is unknown what the financial ramifications of the changes may be. DIBP indicated that they currently have approximately 88,000 partner visas pending in the onshore pipeline, and partner visa application times for first and second stage partner visa applications have increased dramatically over the last 12 months with the implementation of additional character requirements for sponsors.


Grant rates for partner visas are noted at 81% for subclass 820 (compared to 84% last year), 75% for subclass 801 (compared to 78% last year) and 92% for subclass 100. Current schedule 3 affected cases are at 650 compared to 750 last year. The top countries of citizenship for applicants are China, Philippines and Vietnam.


DIBP also noted that when Natural Justice letters are issued to applicants under section 56 of the Migration Act 1958 and an applicant makes a Freedom of Information request to get a copy of their file from DIBP, DIBP is not required to wait for the FOI request to be completed before making a decision on the partner visa. This is of concern to some applicants and agents as the time to process FOI requests has increased substantially over the last 12 months and it can now take several months for FOI requests to be processed by DIBP.

Read More»

Visa Refusals, Visa Cancellations & Visa Appeals

Visa Refusals

If you have had your visa refused, there may be options available to you.  Depending on your circumstances, Nevett Ford Lawyers may be able to assist in finding you a solution to your previous visa refusal.

 

Visa Cancellations

If you have been issued with a Notice of Intention to Cancel (NOIC) by the Department of Immigration there may be options available to you.  Nevett Ford lawyers will assess your individual circumstances based on its merits and advise you of the options that may be available to you.

 

Visa Appeals

In a majority of circumstances, when the Department refuses or cancels a visa, applicants are offered the opportunity t lodge an appeal of the decision issued by the Department.

This appeal is conducted by the Administrative Appeals Tribunal (AAT) and Nevett Ford Lawyers has extensive experience in assisting clients in the appeal process.  We can prepare written submissions on your behalf in support of your case and we can appear as your representative with you at the AAT.

Read More»

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.

 

Read More»

Skills Assessments - Australian visas

Skills Assessment

Having your skills assessed is a requirement for skilled migration to Australia under points tested, employer nomination, graduate migrant and temporary graduate visas.

You must provide a positive skills assessment at the time of invitation and lodgement that is relevant to your nominated occupation.

Skills assessments can be confusing and complicated as there are different assessing authorities for different occupations. Currently there are 3 types of skills assessments.

1. Full Skills Assessment;
2. 485 Skills Assessment, and;
3. 457 Skills Assessment.

Full Skills Assessment

A full skills assessment is assessed based on the qualification and relevant work experience. This assessment must be used for Points Test Skills Migration visa and Employer Nominated visas.  For doctors, evidence of full registration is a suitable skills assessment for Points Tested Skilled Migration and Employer Nominated visa. A skills assessment is only valid until the expiry date specified on the assessment, or when a period of three years from the date of issues has elapsed, whichever occurs first.

485 Skills Assessment

This is a provisional assessment issued to recent graduates who has studied in an Australian institute. The primary difference is that a subclass 485 skills assessment does not require the applicant to demonstrate work experience in the assessing occupation. A subclass 485 provisional skills assessment is not suitable for Points Tested Skilled Migration, Employer Nomination and 457 visas.

457 Skills Assessment

Usually there is no skill assessment requirement for 457 visas.  Although due to recent changes, trade occupations from certain countries and various occupations are required to obtain a skills assessment. This assessment must be assessment by relevant authorities and it is not suitable for Points Tested Skills Migration and Employer Nomination visas.

It is important to understand which skills assessment is required for the visa you are applying.  If you need assistance with a skills assessment, contact us at Nevett Ford Lawyer.

 

 

 

 

Read More»

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.

Read More»

High Court says no exemptions – offshore vessel workers must hold a 457 or 400 visa

The High Court have made a unanimous decision against a ministerial determination, which would have allowed offshore vessel workers to work without an Australian skilled work visa because their work was deemed not to be in the Australian migration zone.


Under the determination made by previous Assistant Immigration Minister, Michaelia Cash, offshore vessel workers carrying out highly specialised, short term work would have been able to use a 'Maritime Work Visa' instead of a 400 or 457 visa.


The Maritime Union of Australia (MUA) and the Australian Maritime Officers Union (AMOU) took the issue to the High Court, claiming the move would provide an incentive for companies to hire overseas workers for cheaper wages and undercut safety standards and conditions.


The High Court said the Assistant Minister had exceeded her authority. By exempting vessels and structures that were not Australian resource installations from the visa regime, the determination was held to be beyond the Minister’s power and therefore invalid.


Shortly after the ruling, current Immigration Minister Peter Dutton stated, ‘Workers on fixed offshore installations are required to hold an Australian visa, but the crews on some vessels which perform highly specialised work, usually of a short term nature, were exempted from this requirement. Many of these vessels operate in international waters and never enter an Australian port.”


Workers on vessels who undertake activities or operations to support an offshore resource activities will require either a Subclass 400 or 457 visa and can no longer work use a Maritime Crew Visa.


Source: ABC Rural

Read More»

‘Backpacker tax’ reduced to 19%

The Government has announced its decision to lower the amount of tax charged to working holiday visa holders, known as the ‘backpacker’s tax’, from 32.5 per cent to 19 per cent.
The Government Visa Application Charge (VAC) for working holiday visas was also reduced, bringing the cost down from $440 to $390.


Changes to the working holiday scheme will also provide greater flexibility for employers. Employers who have premises in different regions will be able to employ a working holiday visa holder for 12 months, with the worker able to work for six months in both regions.


Since the tax was first announced in the 2015-16 Budget, it has been a contentious topic among the farming and tourism sectors.


President of The National Farmers’ Federation, Brent Finlay stated, “We are delighted to see Government listening to its constituency and not put in place a tax that would have hurt farm production and ultimately, the Australian economy.”


Meanwhile, ALP and Independent Senator for Tasmania Senator Lambie from the ALP and Federal Opposition has called on the Government to do more by supporting a new Backpacker Tax which would at least match New Zealand’s tax, set at 10.5 per cent.


Source: ABC

Read More»

Temporary Activity Visa changes - 19 November 2016

Following the Skilled Migration and Temporary Activity Review undertaken by the Department of Immigration & Border Protection (DIBP) in December 2014, it has been announced that a new Temporary Activity Visa framework will come onto effect on 19 November 2016.

In summary, there would be four visa subclasses:

• Temporary Work (Short Stay Specialist) (subclass 400) visa;
• Temporary Work (International Relations) (subclass 403) visa;
• Training (subclass 407) visa; and
• Temporary Activity (subclass 408) visa.

These four visas would come into effect following the:

• repeal of five visas - Temporary Work (Long Stay Activity) (subclass 401); Training and Research (subclass 402); Special Program (subclass 416); Temporary Work (Entertainment) (subclass 420) and Superyacht Crew (subclass 488);
• restructuring of two existing visas - Temporary Work (Short Stay Activity) (subclass 400) and Temporary Work (International Relations) (subclass 403); and
• creation of two new visas - Temporary Activity (subclass 408) and Training (subclass 407).

The six existing sponsor classes (Long Stay Activity, Training and Research, Professional Development, Entertainment, Special Program and Superyacht Crew) would be replaced by a single Temporary Activities sponsor class.

Read More»

Engineering, medicine & nursing students more likely to find employment in their fields

Recent research by internationally recognised migration expert from the University of Melbourne, Lesleyanne Hawthorne shows that the percentage of skilled migrants that were able to find employment in their field varied depending on their chosen course of study.

 

The percentage of recently arrived migrants who were able to find employment in their field of study:

• 66% studied Nursing
• 57% studied Medicine
• 29% studied Engineering
• Less than 10% studied Commerce
  
  

According to Ms Hawthorne, the percentage for Commerce graduates, particularly in Accounting, Business and IT graduates – could be relatively lower due to an ‘oversupplied’ market in these areas.

Skilled migrants arriving with a tertiary qualification are seeing better job prospects than 15 years ago, with recent ABS statistics confirming that since 2010, nearly 40% of migrants with a tertiary qualification are working in their field, compared with 20% of those who arrived before 2001.

 

The latest ABS statistics show that tertiary qualified migrants who arrived after 2010 currently make up 5% of Australia’s tertiary qualified workforce and 12% of labourers

 

SOURCE: The Sydney Morning Herald

Read More»

SUBCLASS 457 VISA LAWYERS

Australian businesses often need to recruit overseas workers to meet their business requirements and ‘human capital’ needs.  Nevett Ford Lawyers provides tailored solutions in relation to all business sponsorship arrangements.

 

Our immigration law and visa services include:

 

• Advice on business sponsorship obligations and undertakings
• Obtaining business sponsorship arrangements for your business
• Sponsorship compliance advice, including sponsorship monitoring, audits and business site visits by the Department of Immigration & Border Protection (DIBP)
• Advice and assistance on negotiating approval under the Labour Agreement arrangements
• Assistance and advice on work rights, verification of work rights, risk management, human resources and recruitment protocols
• Advice in relation to sponsorship obligations, sanctions and penalties
• Assistance and advice with skills assessment requirements, including recognition of overseas qualifications and registration requirements

 

VISA SERVICES

 

Nevett Ford Lawyers can assist in all aspects of business sponsorship, including:-

 

• Sponsorship by Australian business
• Sponsorship by overseas business
• Labour Agreements
• Regional sponsored migration scheme
• Employer nomination scheme.

 

MIGRATION LAW SPECIALITY

 

Nevett Ford Lawyers is a general practice law firm and the migration team is headed by an accredited immigration law specialist.  In addition to tailored migration law and visa services, Nevett Ford Lawyers is supported by our employment, commercial and corporate legal teams.  This enables us to provide businesses with end-to-end legal advice and assistance.  Our migration law team currently provide advice and assistance to domestic and multinational corporations in the following sectors:

 

• Engineering
• Mining
• Manufacturing
• Information Technology (IT)
• Recruitment
• Health & medical, including nursing
• Construction
• Retail
• Tourism
• Education
• Aviation
• Hospitality
• Agriculture

 

Nevett Ford Lawyers can assist your business to ensure compliance with the complex migration law and policy requirements.

Read More»

Changes introduced to the 457 visa

Non–discriminatory recruitment practices


The migration regulations have been amended so that sponsors must declare that they will not engage in discriminatory recruitment practices and also comply with a new obligation not to engage in discriminatory recruitment practices. According to the Department of Immigration “The new obligation seeks to address a community concern that some employers may be relying on the 457 visa programme to employ foreign workers without having regard to the availability of local labour.”


Sponsors should keep a record to demonstrate how subclass 457 visa holders were recruited and that this process did not discriminate based on citizenship or visa status.


Simplification of English Language Exemptions

Subclass 457 visa applicants will be exempt from the English language testing requirements if they have already met the same (or better) English language requirements to gain an occupational license or registration. Where registration and licencing authorities impose and assess English language requirements there is now no requirement for the Department to require the same or equivalent evidence via specified test results.

Read More»

Norfolk Island - transitional migration and Australian citizenship amendments

Legislative Instrument - F2016L00725 - Migration Legislation Amendment (2016 Measures No. 2) Regulation 2016. 

The Instrument above amends the Migration Regulations 1994 and the Australian Citizenship Regulations 2007 to update immigration and citizenship policy, and to transition foreign nationals who are lawfully on Norfolk Island to appropriate Australian visas that are comparable to their entry permit or residence status on Norfolk Island.

Currently, Commonwealth immigration law does not extend to Norfolk Island and is regulated by specific Norfolk Island Regulations.  These Regulations will be repealed on 1 July 2016 and be replaced by the Migration Act 1958.

On 1 July all non-citizens who hold a permit under Norfolk Island Immigration legislation will be 'deemed' to hold a comparable Australian visa, under the transitional arrangements of the Norfolk Island Legislation Amendment Act 2015.

This Amendment Act amends the Migration Regulations to: 

• create an alternative set of criteria for the grant of a Subclass 159 (Provisional Resident Return) visa and Subclass 808 (Confirmatory (Residence)) visa in Schedule 2 to the Migration Regulations for the Norfolk Island cohort; and

• extend the period that the Subclass 159 visa is in effect for this cohort. This will enable holders of this visa to meet the necessary period of residency to be eligible for grant of a Subclass 808 (Confirmatory (Residence)) visa, which is a permanent visa.

The Citizenship Regulations will also be amended to:

• allow citizenship application fees, and refund of citizenship application fees where appropriate, to be paid in foreign currencies and in foreign countries;

• ensure that subregulation 12A(7) accurately refers to the correct Instruments made under regulation 5.36 of the Migration Regulations 1994; and

• ensure that applicants are only refunded an amount equivalent to the test component charged at the time they applied for citizenship.

This Instrument will commence on 1 July 2016.

Read More»

Are you a skilled worker interested in migrating to Australia? – visit SkillSelect today

Are you a skilled worker interested in migrating to Australia? SkillSelect is an online system that allows you to quickly and easily enter your details to be considered for an invitation to apply for a skilled visa.


SkillSelect identifies overseas workers with the skills that are most in need in Australia. To find out if you have a skill that Australia needs, have a look at the Skilled Occupation lists on our website. Australian State or Territory governments will use SkillSelect to identify and select skilled workers that they wish to nominate for a skilled visa.  If you are nominated by a state or territory government, this will increase your opportunity to receive an invitation.


Over 39,000 invitations for skilled visas were issued in the 2014-15 programme year. 


If you have a skill that Australia needs and you meet the visa requirements, log into SkillSelect today. You may be invited to lodge a skilled visa application sooner than you expect.


Nevett Ford Lawyers Melbourne can assist with all visa types.

Read More»