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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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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Partner visa changes

The Migration Amendment (Family Violence and Other Measures) Bill 2016  proposed that partner visa sponsorship applications would need to be lodged and approved before the overseas partner visa application could be made.

The Bill has not been enacted as it is still before the Senate. Therefore, this requirement will not commence on 1 July 2017 as previously announced and has been deferred until 2018.

Please call our dedicated team of immigration lawyers and agents if you have any questions or queries.

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New Permanent Residence Pathway for New Zealand Citizens from 1 July 2017

Residence Requirement

The new pathway is only available to NZ citizens who started living in Australia on or before 19 February 2016. You will need to show that you were usually resident at this time. If you were in Australia for a short visit for a holiday or business would not suffice. On the other hand, if you were temporarily outside Australia on 19 February but were usually resident before this, you may well be eligible.


You will need to show that you have been usually resident in Australia for a continuous period of at least 5 years prior to applying. This continuous period of residence would need to have started on or before 19 February 2016. Showing that you are usually resident would normally involve 2 factors:

• Physical presence in Australia; and
• An intention to reside in Australia

Short visits outside Australia (eg holidays) would be acceptable, providing there is an intention to reside in Australia and you spend a significant amount of time in Australia. If you take up a job or permanent home outside Australia, this could affect your ability to show continuous usual residence in Australia.


You would need to have held a Special Category Visa (SCV Subclass 444) for the 5 years - this is the visa NZ citizens are usually granted on entry to Australia.

Income Requirement

You would need to provide ATO Notices of Assessment showing that you have earned annual taxable income at least equivalent to TSMIT (Temporary Skilled Migration Income Threshold) for the last 5 financial years.


The TSMIT has been $53,900 since 1 July 2013, but was $51,000 from 1 July 2012 to 30 June 2013.
Limited exemptions to the income requirement will apply - those currently announced include:

• Maternity, paternity or carers leave - application of this exemption is discretionary; or
• Inability to depart Australia due having been assigned primary care of a child by the Family Court of Australia and the child cannot be removed from Australia; or
• Currently receiving compensation for injury and ongoing rehabilitation or compensation would be discontinued if departing Australia

Age Requirement

Unlike other skilled visas, there is no age limit for the NZ stream of the 189 visa. The age limit for the subclass 189 visa will otherwise reduce to 45 from 1 July 2017, and will be reducing to 45 for permanent employer sponsored visas by March 2018 so this is a significant advantage for older applicants.

Including Family Members

Even if they are not NZ citizens, spouses and dependent children can be included in the application. If applying onshore, they must hold a substantive visa or Bridging A, B or C visa.

Health and Character Requirement

All family members included in the application must meet health and character requirements.


The waivable health criterion 4007 applies - this means that if you have a health condition which involves significant cost or use of scarce medical or community services, you can still be granted permanent residence provided the cost is not undue. For instance, if you have significant assets or solid health insurance, and can prove that you can meet your own medical costs, you may still be successful in your application.
Most other permanent visas require family unit members to complete health and character, whether they are included in the application or not. This is not the case for the new application pathway - only family members included in the application need to complete health and character.

Application Fees

Application fees are in line with current fees for the Skilled Independent Subclass 189 visa. However, only 20% of the application fee needs to be paid at lodgement. The balance of fees would only be payable once you have met all other criteria and are likely to be granted the visa.
Fees payable are below:

Applicant Type	At Lodgement	Prior to Grant	Total
Main Applicant	$720	$2,880	$3,600
Dependents 18 or Over	$360	$1,440	$1,800
Dependents under 18	$180	$720	$900

Unlike other permanent skilled visa types, there is no English Language Charge for applicants with less than Functional English.

Conclusion

For NZ citizens who were living in Australia on or before 19 February 2016, the new permanent residence pathway is extremely beneficial. In particular:

• There is no English language testing, skills assessment, points test, or sponsorship by an employer
• There is no age limit
• The income level is relatively moderate - and exemptions apply for people on parenting or carer leave
• There is a health waiver for applicants and family members with health conditions
• The bulk of the application fee is only payable once the requirements have been assessed and the visa is about to be granted

New Zealand Citizens who meet the criteria should consider applying for the new pathway as it offers very favourable access to permanent resident status. Given the current political climate, the opportunity may only be available for a limited time.

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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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A reminder of the proposed visa for NZ citizens to be introduced in July 2017

An additional pathway to Australian Permanent Residence for ‘non-protected’ Special Category Visa (SCV) holders (subclass 444)

The Australian Government (Department of Immigration & Border Protection) will provide an additional pathway to Australian Permanent Residence, and therefore citizenship, for New Zealand Special Category visa (SCV) holders (subclass 444) who arrived after 26 February 2001, who have lived in Australia for the last five years and shown a commitment and contribution to Australia.

This additional visa pathway will be available from 1 July 2017, for New Zealand citizens who arrived post 26 February 2001, but on or before, the date of the announcement, 19 February 2016.

Estimated number of eligible applicants

Approximately 60,000 – 70,000 of the 140,000 post 2001 SCV holders who have been in Australia for at least five years are expected to be eligible and we can assist.

How this pathway will-work

The Department of Immigration and Border Protection will have responsibility for implementing the pathway.

The pathway will be made available within the Skilled Independent category of the General Skilled Migration (GSM) stream of Australia's annual Migration Program.

This pathway will allow SCV holders who have been living in Australia for the past five years, and have earned income at or above the Temporary Skilled Migration Income Threshold (TSMIT) as evidenced by their Australian Taxation Office Notice of Assessment throughout their qualifying residence period, to apply for permanent residency and thereafter citizenship.

The pathway requirements

Requirements for this visa pathway will include mandatory residence, contribution and community protection criteria. This includes:

• have been resident in Australia for the five years immediately prior to visa application
• contributed to Australia, demonstrated through income tax returns (Notice of Assessment) for the period of residence evidencing taxable income at or above the Temporary Skilled Migration Income Threshold (TSMIT)
• mandatory health, character, and security checks.

Temporary Skilled Migration Income Threshold (TSMIT) and eligibility

The Temporary Skilled Migration Income Threshold (TSMIT) is a salary threshold used by the Subclass 457 program as an indicator that an occupation is ‘skilled’ and to ensure that a visa holder has reasonable means of support whilst in Australia. It is currently set at AUD53,900 (excluding employer superannuation contributions).

This new visa pathway represents a clear concession over existing migration pathways and is consistent with the terms of the Trans-Tasman Travel Arrangement (TTTA) between Australia and New Zealand.

Exemptions to the income test

It is expected that limited exemptions to the income test requirement will be considered for particularly vulnerable New Zealand citizens.  These exemptions are not yet known but the details will be released by the Department in due course but what is known is that details of how applications for exemptions to the income test will be assessed will be determined between the Minister for Immigration and Border Protection and the Minister for Social Services. The mandatory residence criterion, including all other relevant criteria, will still need to be met before a visa could be granted.

Who will be considered a ‘vulnerable individual’

As an example, possible vulnerable individuals may include the primary carer of children who, for reasons of a court order are unable to return to New Zealand with their children, and who as an SCV holder is unable to access working age payments.

Will an applicant who has been on maternity/paternity leave during the qualifying period be ineligible?

If the applicant continued to be employed during that period the Department may take into account and have the capacity to consider other proof of income, for example, a statement from the applicant’s employer covering the period in questions.  There is no further detail on this point at this stage but apparently there is no intention to disadvantage applicants with a consistent record of income and employment but who have taken periods of parental leave.

Visa application charge (VAC)

There will be concessions to the visa application charge (VAC) solely for New Zealand citizens.  At this stage it is expected that the visa application charge will be consistent with the General Skilled Migration Programme:

• AUD3,600 per primary applicant with an additional AUD1,800 for partners, AUD1,800 per dependent child over 18 and AUD900 per child under 18.

Applicants will only have to pay 20 percent of the VAC when they lodge their application, with the remainder to be paid before the visa is granted.

Steps to Australian citizenship

New Zealanders taking advantage of this new pathway will usually be able to apply for citizenship after one year of permanent residence, provided they meet the allowable overseas absences requirement.  Note: This requirement means, a person must not have been absent from Australia for more than one year in total in the four year period, including no more than 90 days in the year before applying.

The usual citizenship eligibility requirements will apply such as:

• be of good character if 18 years of age or over
• be likely to reside, or continue to reside, or maintain a close and continuing relationship to Australia
• meet the identity requirement
• pass the citizenship test if aged between 18 and 59 years or pass a citizenship interview.

What if someone arrived in Australia the day before, or on the day of the announcement, will they be eligible to apply in five years' time?

Yes. They could apply, but the grant of a visa will depend on whether they meet all relevant criteria.

Nevett Ford Lawyers includes a group of highly specialised Immigration Lawyers and Registered Migration Agents (including 2 Accredited Immigration Law Specialists).  We can assist with all visa types including this new category.

Call or email us today if you would like more information.  We offer ‘initial’ consultations if you would like to discuss your eligibility.

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