News Flash

Grandfathering provisions announced for certain 457 visa holders!

23-Nov-2017


The Department of Immigration & Border Protection (DIBP) has released more information regarding changes to the Subclass 457 visa program announced on 18 April 2017. Specifically, new guidance has been given regarding transitional Temporary Residence Transition (TRT) stream provisions (Grandfathering arrangement) for those who held, or had applied for, a Subclass 457 visa on 18 April 2017.

What were the changes announced on 18 April 2017?

From 19 April 2017, the occupations lists used for temporary and permanent employer sponsored skilled visas were significantly condensed and renamed:

The Subclass 457 visa validity period for occupations on the STSOL was shortened to up to two years. Occupations on the MLTSSL continue to have a validity period of up to four years.

The full suite of reforms is being introduced in stages. Eventually, the Temporary Work (Skilled) (Subclass 457) visa program will be abolished and replaced with a new Temporary Skill Shortage (TSS) visa in March 2018.

Here are some useful links to recap the changes:

What does the new ‘Grandfathering’ guidance say?

The new guidance includes information about transitional arrangements for existing Subclass 457 visa holders applying for permanent residence under the TRT stream of the Subclass 186/187 visas after March 2018. Before these announcements, from March 2018 457 visa holders wanted to apply for Employment Sponsored permanent residency under the Temporary Residence Transition (TRT) would need to have held an occupation on the MLTSSL. Those that had occupation on the STSOL would not be eligible to apply. The new ‘Grandfathering’ permits certain 457 visa holders who were granted their 457 visa on or before 18 April 2017 to apply under the current requirements.

If you held, or had applied for, a Subclass 457 visa on 18 April 2017, you will be able to take advantage of existing TRT stream provisions:

  • Occupation requirements will remain the same (ie there are no restrictions as long as you continue to work in the same position for the same employer as approved for your visa);
  • The age requirement will remain at less than 50 years of age; and
  • The work experience requirement (ie. the requirement to have worked in your occupation at least two out of the three years prior to nomination on a Subclass 457) will remain at two years.
You will, however, be required to meet additional Subclass 186/187 eligibility criteria that will be in effect at that time, including English language requirements and the Temporary Skilled Migration Income Threshold (TSMIT) to be introduced for Subclass 186/187 visas from March 2018.

I held, or had applied for, a Subclass 457 on 18 April 2017. What else should I know?

Two instead of three years of work experience required

The new guidance is good news if you are able to meet the work experience requirement before your current Subclass 457 visa expires – particularly considering those who lodge their 457 visa applications after 18 April 2017 will be subject to the new TRT requirement to have worked in their nominated occupation for a minimum of three (and not two) years.

Advisable to work with the same employer in the same nominated occupation

However, it is crucial that you remain employed by the same employer in the same nominated occupation for the required length of time. A change of employers, or even a change in occupation with the same employer, will mean you must apply for a new 457 visa and likely forfeit your access to the above transitional arrangements linked to your current Subclass 457.

Advisable to lodge permanent residency applications as soon as possible

While these transitional arrangements will make existing 457 visa holders breathe a bit easier, it would be advisable to lodge applications for permanent residency as soon as possible.

To start with, processing times for visas are at an all time high due to the rush to beat the changes before they come into full effect. In addition, sponsoring businesses will be required to make contributions to the Skilling Australians Fund from March 2018 (subject to approval by Parliament). For each employee sponsored, the contribution will be a one-off payment of $3000 for businesses with turnovers of less than $10 million dollars, and $5000 for other businesses. This means the costs of sponsoring employees will increase substantially and likely factor into hiring decisions.

While current 457 sponsorship obligations prohibit employers from recovering from applicants costs associated with becoming a sponsor, there is no explicit obligation for sponsors of 186 visas to refrain from doing so. Given that a 186 visa holder can leave their place of employment at any time after their visa is granted, it is unlikely employers will voluntarily shoulder the costs involved. It would therefore be wise for both employers and employees to consider reducing risks by implementing some kind of fee-sharing arrangement.

What other impacts will there be on existing 457 sponsors?

Until March 2018, Australian businesses can sponsor an overseas worker for a Subclass 457 visa, but under tightened conditions. From March 2018, it is expected that Australian businesses already approved as Subclass 457 sponsors will continue to be able to sponsor a worker under the new TSS visa until their existing sponsorship expires. Once an existing sponsorship expires, sponsors would need to reapply for sponsorship to be able to continue to sponsor overseas skilled workers.

Summary,

Due to the level of uncertainty in migration law, it is highly recommended that sponsors and 457 visa holders seek professional advice in relation to permanent residency. We would recommend obtaining a detailed eligibility assessment to determine whether the candidate is likely to meet the requirements for Employer Sponsored Permanent Residency.

For sponsors, there is an obvious financial benefit in lodging before March 2018. For 457 visa holders, this Grandfathering provision may now provide access to permanent residency where there was none before based on recent announcement.

Have further questions? For over a decade, our immigration specialists have been helping make 457 visa applications as stress-free as possible for businesses and individuals. Contact us today.


Source: DIBP