05th December 2006

DIMA – Xmas holiday arrangements
Communication with DIMA – 457 visa applications Processing Time and Priority Processing Request
COAG Review of the 457 Visa Program
457 Visa – Policy Updates
Australian Citizenship – Discusssion Paper
Australian Citizenship – New Requirements

There is never a dull moment in Australian immigration. 2006 has been no difference with plenty of legislative changes, news and drama – the 457 visa continues to be the 'star' and has become, regrettably, highly politicised. The 457 visa is not unique to Australia and is simply a work visa enabling foreign workers to work in Australia temporarily, provided certain legal and procedural requirements are met. Thousands of Australians work in other countries on a similar basis. However, a combination of factors such as continued economic prosperity, skills shortages and increased mobility of the global workforce will ensure the 457 visa remains on top of the immigration agenda. The procedures in sponsoring a 457 visa holder are not technically difficult. It is the requirement for on-going compliance with the sponsor's undertakings by the employers and the visa conditions by the visa holders (up to 4 years) which often becomes problematic for employers later on. Overseas workers have rights and obligations not only under immigration law, but also the related taxation, employment and workplace laws. The complexity, constant changes and interwoven nature of these legal requirements could be difficult to follow and understand, particularly over a long period of time. If not managed properly, a company's expatriate programe could become a time-bomb for employers and the visa holders.

Abacus Visa provides a comprehensive service in relation to the the 457 visa. Importantly, we specialise in compliance and assist employers with the on-going management of their 457 visa programs. We provide our clients with regular and timely updates on changes and trends to Australian immigration law. To further enhance our services, commencing in 2007, regular features on various aspects of the 457 visa will be published in our future Alerts. Articles on the related employment, workplace relations and taxation issues by our strategic partners with expertise in employment and taxation laws will also become a regular feature.

The management and staff of Abacus Visa thank all our clients, allies and friends for your continued support and wish you all a Merry Christmas and a Happy New Year.

DIMA –

We have not yet received specific advice from DIMA regarding holiday arrangements, but will advise as soon as news is on hand.

With staffing level at an all time low due to staff taking leave over the holiday period and the general rush of holiday visas, DIMA is expected to be extremely busy. Any applications lodged from now on are not likely to be finalised prior to Christmas.

Tip: Lodge your applications as soon as is practicable or after the New Year, and make sure a complete application is lodged (with full

Communication with DIMA – 457 visa applications Processing Time and Priority

Coupled with continued IT technical problems and a large volume of 457 applications in the past few months, there have been continued processing delays at DIMA. Currently processing time is a minimum of 4 – 6 weeks from lodgement. A Triage Team has been established to manage communications between clients and DIMA. Initial enquiries must be made via the Triage Team. The Triage Team will refer the enquiry to the relevant case officer for follow up. Case officers are to respond to enquiries referred from the Triage Team within 24 hours (which does not always work!). No enquiry is to be made prior to the standard 4 weeks except for extremely urgent cases. The above procedure is to avoid critical resources being used by case officers to field unnecessary enquiries.

For urgent applications, DIMA continues to accept Priority Processing Requests. However, no blanket or generic Request will be accepted any longer. Each Request is to be lodged via the Triage Team and will be assessed on its own merit by a PPR officer. In each case, the sponsor must detail the specific reasons why a PPR is warranted – e.g. possible monetary loss, details of the assignment/projects to be undertaken. Requirement to meet commencement date because of employment contract/terms etc is NOT an acceptable reason. DIMA is essentially placing the onus on the sponsors/visa applicants to plan and lodge the applications well in advance of the commencement dates/deadlines. This should be at least 4-6 weeks prior to the commencement date (or entry to Australia) by the applicant.

Tip: Sponsors should factor in the visa processing time when planning a 457 application, and it must be lodged at least 4 weeks prior to the commencement deadline.

COAG Review of the 457 Visa Program

In response to the recent review of the 457 Visa Program by the Council or Australian Government, impending changes are likely to be introduced in early 2007. Headings of discussion have included:

• Federal, State and Territory cooperation to investigate breaches – with the Government introducing additional sanctions or fines against employers who deliberately breach clearly stated requirements.
• Stricter enforcement of the prescribed Minimum Salary Levels.
• Increased use of labour Agreements.
• Information exchange between agencies and stakeholders on 457 visas.
• More stringent Training requirements.
• Improving communications and education with 457 visa holders and sponsors (Abacus Visa plays a critical role in keeping our clients up-to-date on all aspects of this visa).
• Labour Hire Firms – a tougher line on certain labour hire firms e.g.
• Overseas LHFs should have no opportunity to sponsor workers on 457 visa (no doubt in response to recent spates of breaches by O/S LHFs);
• Australian LHFs where they are a direct employer should be allowed to sponsor but could be subject to targeted monitoring;
• Industry based LHFs (eg nursing) should continue to be allowed with a minimum of additional requirements;
• Australian LHFs where direct employer relationship is tenuous could be subject to tightened requirements.
• English Language requirements – There is a need to balance this requirement against unnecessary testing (e.g IELTS), which will prolong the application process and therefore defeat the objective of the 457 visa.

Tip: These are important changes which will impact on employers' ability to sponsor overseas employees. It also highlights the critical role a legal immigration professional, such as Abacus Visa, can play in properly managing your 457 expatriate program to avoid even inadvertent breaches.

457 Visa – Policy Updates

DIMA has recently made amendments to its Policy Guidelines to clarify the following:

• Termination of Employment of Sponsored Person – where a business sponsor has terminated the employment of a 457 visa holder for whom it is responsible, the undertakings made in respect of that person continue to apply until the end of the 28 days after the day on which the sponsor notifies the DIMA that the sponsored person has ceased to be in their employment.
• Time allowed for response and Breach of Undertakings - In responding to the DIMA’s business monitoring Form 1110, the business sponsor is required to complete and return the Form to the department within a period of 28 days from receipt of the Form. The new amendments outline the circumstances where additional time to submit requested information may be allowed and describes those actions that may be taken by the DIMA where an incomplete or nil response from the sponsor is received.

Tip: These are all part of the measures undertaken by DIMA to address issues relating non compliance. Abacus Visa will feature an article on the Undertaking relating to 'Notification of Termination and what constitutes Termination of Employment' in our next Visa Alert.

Australian Citizenship – Discusssion Paper

In September 2006, DIMA released a discussion paper for public comments on four key Citizenship issues:

• Should Australia introduce a formal citizenship test?
• What level of English is required to participate as an Australian citizen?
• How important is knowledge of Australia for Australian citizenship?
• How important is a demonstrated commitment to Australia's way of life and values for those intending to settle permanently in Australia or spend significant period of time in Australia?

Copies of the discussion paper can be obtained by visiting www.citzenship.gov.au/news

Tip: As the introduction of a citizenship test may severely affect eligibility of many permanent residents to become an Australian citizenship, we urge you to read the discussion paper.

Australian Citizenship – New Requirements

The Government has announced that the new Citizenship Law below is likely to be introduced in early 2007:

• A minimum of 4 years of 'lawful' residence in Australia immediately prior to applying for citizenship (lawful to include residence on a valid temporary visa – this recognises that many temporary residents spent significant periods of time in Australia prior to becoming permanent residents);

• One of the four years must be spent in Australia as a permanent resident;

• Absences from Australia of up to 12 months would be allowed during the four year period, but people would not be allowed to spend more than 3 months away from Australia in the year before applying for citizenship.

• People who are already permanent residents will only be required to meet the current 2 year residential qualifying period, provided they apply for citizenship within 3 years of the commencement of the new Act next year.

Tip: This will benefit many temporary residents who have spent a number of years in Australia already. For those who have only recently become permanent residents and intend to take up citizenship, we advise you to apply for citizenship as soon as you are eligible under the current 2 year rule.