Visa Newsletters

06th January 2008

Abacus New Service Offering: Status and Work Rights Checking
DIAC Annual Report 06­07
W&H Visa for USA citizens
457 processing time
2 Year Study Rule – 92 weeks
TRA – Pathway D suspension
Queue for Contributory Parent visas

I take this opportunity to wish you all a successful and happy 2008. As you may be aware, the Rudd government has appointed the Hon. Chris Evans, a Western Australian Senator, as the new Minister for Immigration and Citizenship (DIAC) and the Hon. Laurie Ferguson, a Sydney MP, the Parliamentary Secretary for Multicultural Affairs and Settlement. Whilst immigration featured quite prominently in previous Council of the Australian Governments (COAG) meetings under the Howard government, it was not a topic on the agenda of the recent COAG meeting. Let's hope the lower political profile brings fewer changes to the immigration portfolio this year!! 2007 saw plenty of changes and reforms and no doubt there will be continuing challenges ahead. Some of the key activities include the reform of the General Skilled Migration Program, introduction of a Citizenship Test, some significant changes to the 457 visa programme and the introduction of the Labour Agreement for the On­hire firm Industry. One piece of good news for 457 sponsors is the lapse of The Migration Amendment (Sponsorship Obligations) Bill 2007 – introduced into the Parliament in June 2007 to impose tougher undertakings on 457 employers. We have no news from DIAC regarding its future, and we will keep our readers up­dated on its development.

Abacus Visa is pleased to announce that from January 2008, we are able to offer an Immigration Status and Work Rights Checking Service to all Australian employers. Please see below for more details.

Abacus Visa New Service Offering ­ Work Rights and Immigration Status Verification and Compliance Management Service

The Migration Employers Sanctions Act 2007, enacted in August 2007, makes it a statutory obligation for all employers to check the immigration status and work entitlements of all their employees. It is now a criminal offence to knowingly or recklessly employ an illegal worker or a visa holder breaching their visa conditions. The DIAC provides an Employer Work Rights Checking service to assist employers checking immigration status and work rights entitlements of their employees or prospective employees. However, it is not possible for the DIAC to advise employers whether visa holders have breached their visa conditions. e.g. DIAC does not know whether a working holiday maker has breached the condition of this visa by working more than 6 months for one employer.

DIAC announced in late December 2007 that Registered Migration Agents can now access the DIAC's Visa Entitlements Verification Online facility on behalf of the visa holders or employers, with the consent of the visa holders.
Abacus Visa is therefore pleased to announce the following new services:

• Verification of the immigration status of a visa holder – to ensure they hold a valid visa;
• Verification of their work rights entitlements during the validity of the visas;
• Checking with the visa holders to ensure that they have not breached the conditions of the visas held;
• Maintaining detailed records of these verifications on behalf of our clients as part of their risk management procedures which will meet DIAC compliance requirements;
• Early Identification of any issues which may arise out of these verifications, and provision of ongoing and proactive advice in resolving these issues.

Benefits to Employers:

• ensure that DIAC compliance requirements are met as Abacus Visa has specific expertise in this area of law;
• Cost savings – No need to allocate extra staffing resources to manage these complex legal compliance management issues
• Enable your HR staff to determine at an early stage whether a potential applicant can be employed – thus saving further time and resources.

DIAC Annual Report 2006 ­ 2007

This report provides some interesting statistics and reading. e.g. DIAC delivered the largest migration program in 3 decades with 148,200 people granted migration visas and 66% (97,920) of these were skilled migrants and the balance were family related visas. Some key statistics are listed below. The large numbers of Working Holiday Makers and Students, both with limited work rights, have most certainly played a vital role in filling our skills shortage gap temporarily. More significantly, these visa holders are potential long­term employees for many Australian employers, as they are able to apply for other permanent visas whilst in Australia.

There are approximately 7000 DIAC staff across 95 locations including 1000 staff in 68 overseas posts.

The report also provides some insight into the processing time, reflecting extended delays to most visa categories, including the skilled, 457 and spouse visas. Indeed, the processing time for the 457 program has deteriorated further since 1 July 2007 with some visa applications from high risk countries taking up to 6 months. It would appear that most delays have been a result of strong demand and more thorough integrity checks.

Processing time based on 75% of applications.

Popular Occupation Groups

With regards to the 457 program, in 06­07, the top five occupational groups were computing professions (7.6%); registered nurses (6.4%); GP (3.5%) business and information professionals (3.3%) and medical practitioners in training (2.8%). There was also growth in the electronic and electrical engineering fields, surgeons, software designers, drillers and specialist physicians.

The report also mentioned a fast tracking arrangement being developed to assist employers with a strong and demonstrated record of good compliance. Unfortunately, we have not yet seen this implemented (see above).

Robust Integrity Measures for the 457 visa

In 06­07, 6463 business sponsors were monitored for compliance, and 26% of these were also visited on site based on targeted risk profiling. Of these, 313 sponsors were formally warned and 95 sponsors had a bar imposed on sponsoring further workers, including 14 having their sponsorship agreement cancelled.

To further strengthen integrity measures, the minister of DIAC introduced legislation to strengthen the obligations of sponsors of 457 holders. As discussed above, this Bill has since lapsed.

In 2006 – 06, there were 22,880 people with their visas cancelled for various reasons, e.g. unlawful status, non­ compliance with visa conditions, or simply leaving Australia on termination of employment in Australia. It is interesting to note that despite the relatively small number of business skills visas granted each year (5840 last year), 1081 of these visas were cancelled in 06­07, compared to 1343 student visas cancelled (student visas granted last year numbered 228,592).

The full report can be accessed at:
http://www.immi.gov.au/about/reports/annual/2006­ 07/pdf.htm

Australian­USA Work and Holiday Visa

Australia is the first country with which the USA has entered into a Work and Holiday visa arrangement – which became effective 31 October 2007. This is a reciprocal arrangement and the W&H visa allows a stay of up to 12 months in both Australia and the USA. US citizens can have only one W&H visa (as distinct from the more common Working Holiday Visa 417, which allows the holder to apply for a further 12 month visa when certain conditions are met). Unlike other W&H holders, USA W&H holders can apply for most other visas without leaving Australia.

Tip: A W&H visa allows for work of up to 6 months for one employer at a time. This will most certainly increase the pool of skilled workers in Australia

457 Visa – Slow Processing Time

As reported above, as a result of increased demand, staff shortage and increased integrity checks, processing times for 457 applications have been extended to 6 – 8 weeks from lodgement – DIAC's announcement prior to
the Xmas holiday. Let's hope their performance will improve after the New Year.

The Migration Institute of Australia (MIA) held a meeting with DIAC Secretary, Andrew Metcalfe in December 2007 and raised a number of concerns, particularly in relation to lack of consultation and other difficulties. The MIA also made a proposal for expedited processing for complete applications lodged by registered migration agents. The Secretary indicated that he wanted to engage more with the MIA and will be taking measures to facilitate this – once the new ministry has established itself. Let's hope something more positive will emerge in the new year.

Tip: We urge sponsors and industry groups to make representations to the Minister of DIAC regarding these delays, and seek confirmation as to when fast­track processing will be made available to sponsors with good compliance records.

TRA suspension of Pathway D assessment option

TRA suspended the skills assessment option under Pathway D late last year with little notice – this decision was made by Joe Hockey MP, the then Minister for Employment and Workplace Relations. Pathway D previously allowed skilled tradespeople to apply for skills assessment based on their work experience only. After vigorous representations were made by the MIA, the Minister for DIAC and DEWR confirmed that the suspension was needed based on substantial integrity concerns of these applications.

The TRA has announced that they are hoping to re­open Pathway D in the new year – depending on whether it is viable to overcome integrity problems.
TRA has also strengthened integrity measures regarding Pathway E­ assessment based Australian qualification. A significant number of applicants, especially applications for cooks and hairdressers, have submitted work references and other documentation of questionable quality. TRA is now conducting face to face interviews and technical interview over the phone for cooks and hairdressers in much greater numbers than previously.

Tip: Applicants for TRA skills assessment should ensure that all documentation in support of their applications are detailed and verifiable by the TRA, and be prepared for either a face­to­face or telephone interview.

2 Year Study Rule – 92 weeks (GSM)

As a result of consultations between the government and representatives from the education sector, from 22 October 2007 a new benchmark of 92 weeks was adopted (instead of 104 weeks). The course must be registered on the CRICOS (Commonwealth Register of Institutions and Courses for Overseas Students) for 92 weeks or more in duration.

More details on the 2 year study rule can be found here.

Tip: Students should always check with the education provider on enrolment to ensure the course is a CRICOS registered course for 92 weeks or more.

Contributory Parent Visas – may be queued in 2008

Contributory Parent applications are currently not queued. Due to the increasing number of applications, it is likely that these applications will be queued in 2008. Currently, processing time ranges between 9 – 12 months. There is currently a cap of 3,500 places for CP visa each year.

Student Visa – automatic work rights – 1 April 2008

The DIAC is to remove the requirement for foreign students to apply separately for permission to work while in Australia. This will benefit overseas students through reduction in red tape and employers will benefit through faster, cleaner and simplified work rights arrangements. Students are still limited to maximum of 20 hours per week while courses are in session.

Tip: Employers must continue to check that students have not breached the 20 hours per week work limitation. Employment of overseas visa holders in breach of their visa conditions also constitutes an offence under the Employers Sanctions Act, introduced in August 2007, as well as employing workers who overstayed their visas.