Visa Newsletters

10th September 2009

Subclass 457 Visa-What will be changed from 14 September 2009

The Standard Business Sponsorship application (SBS) – by the sponsor

  1. From 14 September 2009, all sponsors of 457 visa holders will be required to adhere to new Sponsorship Obligations (as discussed in our 8/9/2009 Alert).

  2. An 'approved nomination' will be effective for 3 months after the SBS approval ceases.(Comment - a positive and sensible change –prior to 14/9/2009, a nomination approval willlapse if the related 457 visa application is not approved when the related sponsorship expires.In the absence of a nomination application or approved nomination, the visa application will be refused and this may cause the visa applicant to become unlawful if he/she was holding a bridging visa.A s 48 bar will be invoked if a person's visa application is refused and become unlawful –this practically means that this person will be barred from lodging a further application onshore.)

The Nomination application - the nominated position is being assessed

  1. Market Salary Rates : The change to market salary rates has been flagged by the government for quite some time and we have all been waiting for its arrival with trepidation!
    2. a)What is it?Market salary rates arrangements mean that 457 visa holders will be paid the same terms and conditions of employment as are provided to an equivalent Australian undertaking equivalent work in the same workplace at the same location.

    b)Market rates will apply to all new 457 holders from 14/9/2009, except where annual earnings of $180,000 or more are proposed.

    c)The onus is on the sponsors to prove that the nominated salary levels are market salary rates.No evidence of market salary rate is required for annual earnings of $180,000 or more.

    d)For current 457 holders, transitional arrangements will allow employers currently paying less than market salary rates to have until 1 January 2010 to commence paying market rates.(Does that mean more monitoring – and on what basis??)

    e)Readers are encouraged to access the DIAC's websitefor more detail:
    http://www.immi.gov.au/skilled/457-market-salary-rates.htm

    f)This new change allows a DIAC decision maker to apply highly subjective criteria to determine the prevailing market salary rates.For the foreseeable future, there is likely to be a great degree of uncertainty in the interpretation and application of the new law. It would seem that if a sponsor provides evidence of market rate salaries for a nominated position, the onus would be on the decision maker to disprove it.One can expect a few more challenges in the courts.

    g)Business sponsors must therefore familiarise themselves with these new laws, as they will have profound impact on the administration of your 457 visa program.

    h)Abacus Visa will provide further analysis and commentary as the application of the new laws and policies become clearer.
  2. 457 applicant detail must be specified in the Nomination application.A nomination application will be refused if the nominee detail is not provided.Prior to 14/9/2009, nominee information is not required at the nomination stage. (Note: from 14/9/2009, current nomination approvals where the 457 applicant is not specified will not be valid.The sponsor may seek a refund of the nomination fee for these nominations.)

The Visa application –by the applicant

  1. No more qualifying visa for onshore applicants–applicants must however hold a substantive visa without the condition 8503 (no further stay) - to be able to apply.(Comment -a positive change e.g. 820 spouse visa holders will no longer need to go offshore to apply for a 457 visa.)

  2. No minimum period of stay – from 14/9/2009, a 457 visa will be available for a period of up to 4 years.Prior to the change, a 457 visa is available from 3 months to 4 years.(Comment – a positive change. Previously, the lack of a short-term work visa has created enormous difficulty for overseas nationals required to enter Australia to work for a period of 3 months or under. As a result, many entered Australia on a 456 or ETA business short-stay visas.These visas provide no work rights except under extremely urgent circumstances.Nonetheless, this system has been used (abused) under the nose of DIAC for a long time.Along with this change, DIAC will no doubt be monitoring the 456/ETA business visas for non-compliancewith renewed vigour.Employers who have been using these visas to bring in short-term workers and therefore bypassing the 457 pathway will need to take special notice of this change – bearing in mind DIAC's new monitoring and sanction regime.

  3. The requirement that the 'applicant has the personal attributes and employment background ....'.will be changed to 'the applicant is to satisfy the Minister that his/her intention to perform the occupation is genuine'.(Comment –again, to determine whether a visa application is to be refused based on 'genuineness –is highly subjective and provides a greater degree of power in the decision-making process!)

  4. New Visa Condition 8501 imposed on the 457 holder -holders of 457 visa granted on or after 14/9/2009 must have adequate health insurance for the duration of their stay in Australia.In addition adequate health insurance arrangement must be made and evidence submitted to DIAC before their visas will be approved.A breach of this condition may lead to visa cancellation.
    5. a) While the removal of potential health costs is a welcome change to many employers, any deliberate or inadvertent breach by the holders of this visa condition may lead to visa cancellations.This will clearly have significant impact on the visa holders and their families, not to say the disruption to the sponsors' businesses. It is therefore important that the sponsors implement appropriate risk management strategies to ensure that all 457 visa holders subject to this condition must hold current health insurance for themselves and theirfamily members during their stay in Australia.

     
    b) Abacus Visa works with health insurance providers to ensure the currency of health insurance of the 457 holders, and maintain the relevant records for DIAC monitoring/audit purposes.

Monitoring and Sanctions for Non Compliance –

Same as for other temporary visas in the Temporary Residence Visa program as discussed in our Visa Alert 8 September 2009.