15/DEC/2020

Abacus Visa Newsletter

Christmas Wrap-Up: The year of COVID, and what you need to know for 2021 

Dear Clients and Readers,

Change has always been a dominant theme in immigration law, but never so much as in 2020. COVID-19 upended almost every aspect of normal business operations, as well as plans for partner and family reunions. Visa program priorities shifted; policies and visa conditions were modified repeatedly. New changes will continue to be implemented into 2021. However, the disruption has also thrown up opportunities – notably for people who qualify under technology-focused and highly skilled visas, or who work in particular COVID-relevant occupations.

In this edition, we take a step back and review the impact of key immigration changes most relevant to employers, skilled workers, and partner and family visa applicants. While predicting the future is impossible, we also aim to provide measured, professional insider insights to help prepare you for potential developments in 2021. Having assisted many through the chaos of this year, we understand that getting migration compliance right isn’t just about successfully getting a visa. It’s also about helping people secure the careers, financial opportunities, or family lives they dream of. As always, please do reach out if you have any questions.

Abacus Visa will be closed from 21 December 2020 and return to office on 4 January 2020. It’s been a hectic year, so we wish you a well-deserved break over Christmas and New Years.

Kind regards,

Linda McCreath
Principal Lawyer & Managing Director
Abacus Visa Immigration Lawyers
MARN: 0104387


Employers: Compliance matters more than ever

Beyond the obvious impact of international border closures and tight restrictions on incoming travellers, the steep rise in Australian unemployment due to COVID-19 has meant that employers will need to comply with stricter requirements for labour market testing in the foreseeable future. Employers should also note the introduction of the Priority Migration Skilled Occupation List (PMSOL), which indicate the types of workers being prioritised during this critical period.

Key change

What you need to know

Takeaway

Enhanced labour market testing

Employers must conduct ‘enhanced’ labour market testing (LMT) to ensure Australian workers are prioritised for job opportunities during the COVID-19 pandemic.

If sponsoring workers on a Subclass 457, 472 or 494 visa, employers now have to place an additional ad on the Australian government’s free job-seeking site, jobactive i.e. a total of THREE ads must be placed.

If sponsoring employees on Subclasses 186 and 187, employers will also be expected to demonstrate that the position has been advertised on jobactive as part of fulfilling the ‘genuine need’ criterion.

The potential consequences of failing to comply with enhanced LMT at the time of application are severe. ‘Genuine need’ is the key factor – being able to prove that a nominated position is necessary, including by showing that all efforts have been made to advertise locally.

Not only do employers risk having their nomination application refused, there is a chance of suffering serious financial loss.

Priority Migration Skilled Occupation List (PMSOL)

For the purpose of filling critical skill shortages, an Australian business sponsoring visa applicants in one of 18 occupations will be eligible for fast-tracked processing of visa and nomination applications.

Employers sponsoring workers in the priority areas of health and advanced technology can expect much quicker outcomes.


What to expect for 2021

For employers wanting to hire workers from overseas, the key concern will be ensuring strict compliance with new regulations. While requirements such as LMT have always been rigorously enforced, they are being given even more weight due to the adverse impact of COVID-19 on Australian workers.

Additionally, the Department of Home Affairs (DHA) and the Australian Tax Office (ATO) will continue to use data sharing to monitor sponsor compliance and potential work condition breaches. Employers must be prepared to provide records and information at a moment’s notice, including details of visa holder employees, sponsorship-related expenses, or changes to business circumstances.

The DHA has also flagged that occupation lists will continue to be overhauled to address ongoing skill shortages as Australia recovers from the pandemic. For example, the PMSOL was recently updated to include the occupation of Social Worker. Specialist professionals in the health and technology sectors will likely continue to be prioritised above others.



Subclass 457/482 visa holders: A mixed bag of concessions and closed doors

COVID-19 disrupted the plans of temporary skilled visa holders and applicants, many of whom were unable to enter Australia and whose visas eventually lapsed. While a number of concessions are available for temporary visa holders impacted by the pandemic, the ability of overseas workers to resume pursuing job opportunities in Australia depends heavily on the future availability of vaccines and the opening of international borders.

Key changes

What you need to know

Takeaway

COVID-19 concessions for permanent residency applicants

Due to COVID-19, many workers had hours or salaries reduced, or were stood down. However, Subclass 457 and 472 visa holders applying for permanent residency under the Subclass 186 Temporary Residence Transition (TRT) stream whose:

  • hours were reduced, or
  • who took unpaid leave due to COVID-19 during the concession period,

can still count this period towards the 3-year full time requirement (or 2 years if grandfathering provisions apply). The concession period is taken to have started from 1 February 2020, and currently has no end date. 

There was major concern over how COVID-19 would impact the ability of TRT applicants to meet the full-time work requirement.

These concessions are a welcome clarification. It means applicants won’t be disadvantaged for having worked insufficient hours or being on unpaid leave during the COVID concession period.

Visa refunds for overseas visa holders and applicants

Many visa holders – including temporary skilled workers – will be able to claim a refund on visa application charges (VAC) OR have fees waived on the next visa they apply for.

While it is good news that fees will be waived for subsequent applications, most applicants overseas will be unable to resume the application process until international travel restrictions are lifted.


What to expect for 2021

Given the focus on prioritising jobs for Australians, the number of eligible occupations under the Temporary Skill Shortage visa (Subclass 482) is likely to be reduced. However, applicants who apply for positions in designated regional areas may have access to more occupations.

Additionally, even if you are able to obtain a visa offshore, it will remain difficult to enter Australia for a number of reasons, including lack of international flights, compulsory hotel quarantine, and the need to comply with the various rules specific to each state or territory. To keep up to date on how international travel restrictions and requirements apply to you, check the DHA’s COVID specific website.


Entrepreneurs and tech professionals: Opportunities abound for talented individuals

Skill shortages in certain sectors designated as ‘critical’ has led the Australian government to prioritise highly talented migrants and business investors who can contribute to the recovery of the Australian economy. For this select group of specialist individuals, travel exemptions and fast-tracked visa processing apply.

Key changes

What you need to know

Takeaway

Increased spots for highly skilled visas

The 2020 Budget significantly increased the allocation of visas to the Employer Sponsored,

Global Talent, and Business Innovation & Investment programs.

Entrepreneurs, as well as professionals or graduates with exceptional talent in technology, should take advantage of the government’s strong prioritisation of these areas.

Prioritisation of the Global Talent Visa Program

The Global Talent Visa Program allows highly skilled professionals in 7 key technology industries to work and live permanently in Australia. The application is a 2-step application process that  includes proving international recognition in a relevant field, and the ability to attract an annual salary of AUD153,600 or more.

For professionals who can prove exceptional talent in a key technology sector, the Global Talent Visa Program is the best pathway to fast-tracked Australian permanent residency.


What to expect for 2021

Whereas in the past, programs such as the Business Innovation and Investment Program (BIIP) have been criticised for simply being vehicles to attract funds, it appears the Australian government is making a far more concerted effort to focus on ‘high value’ investments and entice migrants with a demonstrated track record in innovation, investment and business. This prioritisation of specialist and business skills will continue into the next year.


Partner and family visa applicants: More obstacles on the horizon

2020 has been a particularly difficult year for partner and family visa applicants. In addition to the obstacles posed by travel restrictions and the significant backlog of applications, new, stricter regulations have created even more uncertainty for those looking to reunite with partners and family members.

Key changes

What you need to know

Takeaway

Potential new English language requirements

Controversial new English language requirements that would require both applicants and permanent resident sponsors alike to undertake English testing were proposed earlier in the year. However, the proposed language requirements will need to be passed into legislation before taking effect.

In short, partner visas are likely to become more difficult to obtain. While policies implementing the separate sponsorship process for partner visas have yet to be implemented, potential visa applicants and sponsors should make efforts to start the application process as soon as possible before it kicks in.

Given how rapidly regulations can change, you should seek advice when applying for partner visas. Failing to meet requirements can result in steep financial costs, plus long delays to being able to settle in Australia permanently with your loved one.

 


Tougher sponsorship process to be implemented soon

A separate sponsorship process – where a spouse must be approved as a partner visa sponsor before a visa application can be lodged – will soon be the new normal.

No exact date for implementation has been set, but it could be any day. Unlike the proposed English language requirements, the legislation enabling this was already passed back in 2018.

Permanent parent visas reduced

Places for permanent parent visas will be reduced, although this may be offset by an increase in temporary sponsored parent visas (TSPV, or Subclass 870).

Increased availability of the relatively new temporary sponsored parent visa on the one hand will make it easier for permanent residents to reunite with family members; however, it also comes with significantly more financial costs.


What to expect for 2021

A small bright spot is that COVID-19 concessions for certain partner and family visas will likely come into effect from early 2021. Currently, certain family visas can only be granted if an applicant is offshore, that is outside of Australia. However, recognising that this requirement would be impossible to satisfy while border closures are in place, the DHA has stated that concessions will soon be given to the following family visas:

  • Child (subclass 101) visa
  • Adoption (subclass 102) visa
  • Dependent Child (subclass 445) visa
  • Prospective Marriage (subclass 300) visa
  • Partner (subclass 309) visa

However, as is the case with temporary skilled work visa holders not deemed ‘critical’, prospective marriage visa applicants and holders who are offshore will continue to be inhibited by the ongoing travel ban.


Citizenship applicants: New Australian values test

Key changes

What you need to know

Takeaway

New citizenship test

The new test consists of 20 multiple-choice questions, including five questions on ‘Australian values’. Applicants must answer all five correctly, as well as receive a 75% pass mark overall.

‘Australian values’ cover topics such as freedom of speech, equality, democracy and the rule of law.

This has been a significant development, being the first time in over a decade the test has been changed. Citizenship applicants can prepare by reviewing the Australian Citizenship: Our Common Bond booklet and taking a practice test.


What to expect for 2021

With in-person citizenship interview appointments now having resumed in all States and Territories, applicants can expect the backlog of appointments that built up over the last few months to begin to reduce.


We can help

With many areas of visa compliance and policymaking still in flux, we’ll continue to provide timely updates to our readers and clients as new developments happen. Our dedicated team of migration experts can help guide you through any sponsorship or visa-related issue, freeing you to focus on your business or personal goals without having to stress over the process.

Are you:

  • An employer wanting to sponsor overseas workers? We know the ins and outs of sponsorship compliance, as well as which type of visa would best suit your company’s needs. We also assist with planning, implementing, and tracking progress in key visa sponsorship requirements.

  • Holding or want to apply for a temporary skilled work visa? COVID-19 has impacted many key aspects of the visa application process, including which occupations will be prioritised in the near future, as well as potential pathways to permanent residency. We can inform you in plain English what these changes mean for you, as well as guide you through what you need to do step by step.

  • A highly skilled professional or business investor? We’re experienced with helping exceptionally talented applicants submit decision-ready applications (ie. one that contains all the required supporting documents, forms and fees) to maximise chances of a successful visa grant under the Global Talent or Business Innovation and Investment visa programs. Talk to us to find out how you can put your best case forward and be prioritised for fast-tracked visa processing and permanent residency.

  • Looking to sponsor a partner or family member? With upcoming changes to the partner and family visa programs set to make obtaining a visa more difficult, we can help walk you through how to avoid costly delays, and maximise your chances of success in light of new regulations.


At Abacus Visa, we give timely and accurate advice tailored to your specific situation. Whether you’re an employer, skilled migrant, or looking to reunite with family, we can help you achieve your goals.

contact us

+61 2 9212 4008

51 Albion Street,
Surry Hills,
Sydney NSW 2010
AUSTRALIA

Monday to Friday
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(or flexible by appointment)

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DISCLAIMER: No material on this website, including but not limited to documents, articles, general comments, responses and other communications should be interpreted as relevant or accurate legal advice for any individual or specific situation. The information is of a general nature and cannot substitute for professional legal advice. Such advice is only provided by our firm following the acceptance by a client of our written agreement, and the payment of the required fees.