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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