13th April 2009

Changes to the Skill Stream Visa program
Changes to the 457 Visa program
Analysis of these change
457 -higher English language requirement for ASCO4 to 7 occupations

Australia has not been immune to the recent global economic crisis.The unemployment rate has risen substantially and is expected to continue to rise.In response, the Diac has introduced numerous measures in an attempt to reduce the inflow of skilled migrants – both permanent and temporary. These measures have caused deep concern and confusion amongst various stake-holders.This issue aims at providing a summary of these changes and likely impact of these changes.

The changes have so far been focused on the Skill Stream (permanent) Categories (comprised of the General Skilled Migration, Employer Nomination Scheme (ENS), and Business Skills Migration programs) and the 457 Program - the Temporary Business Long-stay visa.

(A)Effective 1/1/2009 – new Priority Processing Direction

Priority processing is given to all 'skilled permanent' visa applications in the following order:

1. Employer sponsored (ENS/RSMS) – applicants sponsored by employers.
2. State or territory sponsorship – applicants who have obtained state/territory government sponsorship
3. An occupation on the Critical Skills List (CSL) – to be reviewed continually (latest 16/3/09)
4. An occupation on the MODL (no change).
5. All other applications (No change to the Skilled Occupation List- SOL).

Priority processing is given to 'skilled provisional' visa applications in the following order:

1. State or territory sponsorship.
2. Family sponsorship where the applicant's occupation is listed on the CSL.
3. All other applications.

Visa subclasses 485, 487, 476 and 887 are exempt from the new Priority Processing Direction.

(B)Cuts to the 2008-2009 Migration Program (permanent)

On 16 March 2009, the Minister to Diac announced the following:

• the permanent skilled migration program was cut by 14% - from 133,500 to 115,000.
• building and manufacturing trades were removed from the CSL.
• progressive imposition of caps on certain visa categories – the Business Skills program is now capped at 6650 places 60 30/6/09.(The cap is imposed on offshore business skills applications and is apparently already filled for the current program year.No cap is placed on onshore permanent business skills applications).

The changes have caused much concern and panic amongst potential applicants.The following discussions attempt to address some of these questions.

1. There have been no changes to date to the Skilled Occupation List (SOL), Employer Nomination Skilled occupation List (ENSOL) or the Migration Occupation in Demand List (MODL). Indeed, there have been no changes to the eligibility criteria in relation to the skill stream visa categories.e.g. the removal of some trades occupations from the CSL simply means that these applications will no longer receive priority and face a longer processing time.However, if the eligibility criteria and pass marks are changed before visa grant, these changes may affect your eligibility.Diac has indeed confirmed that they will continue to change migration law and policy to reflect current economic situations.This is not a new policy, and has always been a risk an applicant undertakes when making a visa application.Regrettably, these risks become larger during uncertain economic times.
2. The practical effect of the new Priority Processing Direction is that ENS applications, occupations on the CSL, or nominated by State/Territory government receive priority processing.Occupations on the standard SOL will be given the least priority and these applications are likely to take a long time – may be 15 months to 2 years!
3. With regards to the Progressive Cap: to date, the Cap has been placed only on the Business Skills Program, which currently has a limit of 6650 for the 08-09 year.We understand that this quota has been filled – i.e. no further applications will be processed till 1 July 2009.The cap applies only to the off-shore business skills subclasses and has no effect on the on-shore categories.
4. Employer sponsorship - the processing of these visa subclasses (e.g. 856, 121 etc) continues to be the fastest of all skilled visas. Current processing time is within 3 months, if a decision-ready application is lodged.Tip – if you have applied for a skilled visa since 1/9/2007, and have found an employer who is willing to sponsor you, we recommend that you lodge an ENS application.You may be able to have your visa fee waived. However, a nomination application must be lodged by your employer – and a nomination lodgement fee will apply.Your employer and you must also meet the requirements for this visa. Questions have been raised regarding whether there are impending changes to the ENS.Diac has made no announcement thus far.If the current economic climate continues to worsen with added political pressure to curb immigration, the possible changes are likely to be reduction of the ENSOL list, similar to the 457 visa – stricter requirements e.g. higher salary levels, stricter training records are likely to be imposed on the employer, and possible imposition of limited work conditions.Currently only the regional employer sponsored visa carries work limitations.
5. State and Territory sponsorship – similarly, if you can successfully seek state/territory sponsorship after your skilled visa lodgement, this will fast-track your application. However, all state and territory governments have recently tightened their specific sponsorship requirements. We recommend that you research the sponsorship requirements from each state – it's definitely worth looking into and Abacus Visa can assist with these applications.
   http://www.immi.gov.au/skilled/regional-employment/migrants.htm

(C)Subclass 457 – Business (Long Stay) Visa

Two major changes have taken place to the 457 visa since February 2009.

1. Introduction of the Diac's Policy changes from 24//2/2009 as reported in our March Visa Alert
2. the announcement on 1 April 2009 by the Minister of Diac of the 7 new measures. http://www.minister.immi.gov.au/media/media-releases/2009/ce09034.htm

	The 7 measures are:	Abacus Visa Comments
(1)	The indexation of the minimum salary level (MSL) for all new and existing 457 visa holders by 4.1% on 1 July 2009, in line with all employees’ total earnings last year as reported by the ABS. This ensures that the wages of overseas workers keep pace with local wages.	The increase applies to all 457 visa holders, including visas granted prior to 1/7/2009. A breach of the sponsor's obligations occurs, if an existing holder's MSL is not increased to the new level.
(2)	The implementation of a market based minimum salary for all new and existing 457 visa holders from mid September 2009, to ensure overseas workers are not exploited and local wages and conditions are not undermined (a key recommendation of the Deegan Review).	Ways to implement Market Rate is still being discussed and likely to be problematic!Since the policy change, the Average Remuneration requirement has already caused much headache for sponsors – as there is currently no objective yardstick to measure AR.
(3)	Increasing the existing minimum language requirement from 4.5 IELTS to 5 IELTS for 457 visa applicants in trade occupations and chefs, to address concerns about the exploitation of workers from non-English speaking countries and align the 457 visa English language standard with the permanent sponsored visa for trades’ occupations.	This reflects Diac's policy to reduce the inflow of semi and low skilled workers.Despite being an occupation under ASCO 3, Chef is now treated like other trades (ASCO 4) occupations.
(4)	Progressively introducing formal skills assessment from 1 July 2009 for 457 visa applicants from high risk immigration countries in trade occupations and chefs. The Government will consult with stakeholders in finalising an assessment framework that reflects Australian standards and meets the expectations of Australian workplaces.	As above. This will undoubtedly increase the difficulty and processing time for trades applicants from high risk countries, e.g. China, India etc. TRA currently has no provision to assess people based on work experience only.
(5)	Introducing a requirement that employers seeking access to the 457 visa program have a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices. This will help address concerns that some employers may discriminate against local labour in hiring overseas workers.	Diac has already been seeking information e.g. redundancy detail, reasons for employing overseas workers.Despite confirmation by a Diac policy maker at a recent MIA seminar that no Labour Market Testing will be re-introduced, we are of the view that this is LMT by stealth.
(6)	The development of training benchmarks to clarify the existing requirement on employers to demonstrate a commitment to training local labour.	Requirements for Record of satisfactory training of Australians will be much more stringent and vigorously monitored in the future.Any employer who does not have a good record of training local Australians, will be most unlikely to become a sponsor.
(7)	The extension of the labour agreement pathway to all ASCO 5 – 7 occupations, to ensure that employers using the 457 visa program to access these occupations satisfy obligations on local training and employment.	This again reflects Diac's policy to reduce the inflow of semi/low skilled workers to Australia.It is going to greatly restrict the ability of small employers to sponsor trades people to Australia independently.

In our March Alert, we pointed out that the 457 visa is subject to no quota and is purely demand driven. Despite a 30% decline in demand for the 457 visa in recent months, Diac would appear to be determined to continue with the stricter policy guidelines and the new measures. In September 2009, the new and more stringent Employer's Obligations regulations will become effective which will no doubt further deter employers in becoming sponsors.

The outlook for existing 457 holders and prospective applicants therefore are extremely uncertain, to say the least.We encourage existing 457 holders to explore their permanent visa options as early as possible.Even if they were to lose their temporary visas, they may be able to re-enter Australia as a permanent resident in the future.Abacus Visa provides comprehensive exit and visa options strategies to 457 visa holders to guide them through these uncertain and turbulent times.

OTHER NEWS

Effective from 14/4/2009-Changes to 457 English Language Requirements

From 14/4/2009, the English language requirement for Subclass 457 - Business (Long Stay) visa applicants increased from an IELTS score of 4.5 to 5. This is an average band score.

This requirement applies to people making a subclass 457 application on or after 14 April 2009 and, applies to nominated occupations within ASCO major groups 4 to 7, and to people applying as chefs or head chefs (ASCO 3322-11 or 3322-01).

Note that if the nominated occupation requires the applicant to hold a licence, registration or membership that is mandatory for the performance of the activity nominated, and if that licence, registration or membership requires an IELTS score of more than 5 (average), it is a time of decision criterion that the applicant must have that IELTS score.

Change for family Subclass 457 visa holders (dependent child over 18 and under 21)

DIAC has amended the Migration Regulations to allow secondary holders of Subclass 457 visas to be granted a further visa in situations where this was not previously possible. This will be useful to enable an adult dependent to complete their education in Australia. However, these visa holders must note that to be able to apply for an ‘onshore skilled visa' as an overseas student upon completion of a tertiary qualification in Australia, an applicant must hold a qualifying student visa within six months of application.Holding a 457 visa may not be a good option under these circumstances, and this needs to be explored carefully.

http://www.immi.gov.au/legislation/amendments/2009/090328/lc28032009-01.htm

South China: Processing Change

From 1 April 2009, applications for family visas from applicants in the southern provinces of China will be processed by the Australian Consulate in Guangzhou, and not by the Shanghai Consulate.

http://www.china.embassy.gov.au/bjng/DIMA03010.html