Another wave of changes swept Australia’s migration program, many of which came into effect from 1 July 2018. This edition of the Visa Alert will help guide you through the most important of them.
If there were an overriding theme to the changes, it would be that eligibility criteria for permanent and temporary skilled visas have noticeably tightened. From the government’s point of view, the changes are supposed to improve the capacity of Australia’s visa programs to address the need for skilled workers, while ensuring local workers aren’t placed at a disadvantage. Practically, for many visa applicants and their sponsors, it will mean having to meet tougher visa requirements.
We also provide updates on visa fee increases, the ongoing implementation of the 457 visa and Temporary Skill Shortage (TSS) programs, the soon-to-be implemented Skilling Australians Fund, parent and partner visas, as well as new processes for China business and visitor visas
Kind regards, Linda McCreath Principal Lawyer & Managing Director Abacus Visa Immigration Lawyers MARN: 0104387
Employers brace for impact as Skilling Australians Fund starts 12 August 2018
Employers should be prepared to pay significantly more for sponsoring foreign workers.New regulationsconfirmed that the Skilling Australians Fund (SAF) will be implemented from 12 August 2018. We previously wrote about theSAF in a previous Newsletter, explaining that businesses should budget in additional costs and be ready to provide accurate records
From 12 August 2018, employers sponsoring workers on certain visas will be required to pay the SAF ‘Training Contribution Charge’ (known as a levy) at the time of lodgement of each nomination. These visas include:
Temporary Skill Shortage (TSS) visa
Employer Nomination Scheme (ENS) (subclass 186) visa
Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa
Nominations to transfer an existing Subclass 457 (or 482) visa holder to a new employer
Temporary Activity visa (subclass 408)
The SAF levy will replace the current training benchmark requirement ie. Employers will not be simultaneously subject to the SAF levy and the existing training benchmarks. This means that:
Standard business sponsorship applications lodged on or after 12 August 2018 will not be assessed for compliance with the training benchmarks; and
Standard business sponsors will not be required to comply with the repealed training benchmarks in relation to a period of 12 months ending on or after 12 August 2018.
However, standard business sponsors must still retain records of training benchmark compliance for any full year prior to 12 August 2018. Furthermore, nominations made on or after 12 August 2018 under the Temporary Residence Transition stream in the Subclass 186 visa or Subclass 187 visa will not be subject to training expenditure obligations. However, for nominations lodged before 12 August 2018, previous training obligations still apply.
To find out more about levy costs, requirements, sponsor obligations and possible refunds, make sure to read ourlatest Newsflash.
Key takeaways:Until the SAF levy is implemented, employers sponsoring TSS workers are only subject to existing training expenditure requirements, which are significantly less than what would be required under the SAF levy. Employers with current nomination applications ready to go, complete with documentation, should lodge these before 12 August 2018. However, employers who still have a significant amount of work to do on their nomination applications (eg. sufficient advertising to meet labour market testing requirements) and will not meet that deadline will likely need to budget in the new levy costs.
Skilled visa reforms from 1 July 2018
Several important changes impacting Australia’s skilled migration were implemented on 1 July 2018. We’ve discussed these changes in more detail in our Newsflashes. At a glance, they include:
Points increase for skills-based migration The pass mark was increased from 60 to 65 for the following three subclasses under the General Skilled Migration (GSM) program, for applications made on or after 1 July 2018 in response to an invitation given on or after 1 July 2018:
For visa applications made before, on or after 1 July 2018 in response to an invitation given prior to 1 July, the pass mark remains at 60.
The maximum age for claiming points for skilled partners was also reduced from under 50 to under 45 years of age.
Key takeaway: Earlier reforms made to employer-sponsored visas (the TSS, Employer Nominated Scheme, and Regional Sponsored Migration Scheme) already had the effect of limiting options for those who do not meet the new, stricter work experience and occupation requirements. International students planning to remain in Australia after completing their studies were particularly affected. This latest points increase for GSM visas will serve as a further barrier to gaining permanent residence in Australia, and visa applicants should prepare accordingly. Read our Newsflash for more details.
Visa fee increases Visa application charges (VACs) for certain visas increased from 1 July 2018. Importantly, the application fees for independent skilled visas, regional sponsored and employer nominated visas have all risen. For instance, a primary applicant for a Skilled - Independent visa (Subclass 189) must now pay $3,755, an increase of $85. An additional applicant aged 18 years and over will now fork out $1,875, while an additional child applicant will cost $940.
On 1 July 2018, the government began implementing a new Global Talent Scheme (GTS) pilot program aimed at attracting highly skilled workers to help support talent and innovation in Australia. Workers not already covered by the standard TSS visa program will have a new visa pathway into Australia under the GTS.
The GTS will have two streams:
Established Business stream:Allows employers who are accredited sponsors to employ highly-skilled individuals with cutting-edge skills to contribute to innovation in an established business, and help make Australian businesses and their Australian employees the best at what they do.
Start-up stream: Allows employers to sponsor highly-skilled individuals with cutting-edge skills to contribute to Australia's start-up ecosystem and bring new ideas, new jobs, new skills and new technology for Australia. This stream is for start-ups operating in a technology based or STEM (science, technology, engineering and mathematics) related field. Start-ups must be endorsed by the independent start-up advisory panel.
Under the GTS, a four-year TSS visa will be granted with the option to apply for permanent residence after three years.
Key takeaway:Unlike other existing programs, the GTS will not be subject to thelists of eligible skilled occupations. Although the new scheme might be useful for more specialist occupations not catered to by those lists, businesses looking to fill usual occupations such as MD, General Manager, or Finance Manager should apply for the TSS visa.
More clarifications around 457 and TSS visas
Refusals of TSS nominations for not meeting labour market testing requirements The Department of Home Affairs (DHA) clarified instances where a nomination for the Temporary Skill Shortage (TSS) visa (Subclass 482) might be refused, despite evidence of LMT being provided. These include where:
The advertising undertaken does not appear to have been for the same position as that nominated;
The nominee themselves advertised the position;
The terms and conditions advertised to the local market appear to be significantly less favourable than those being offered to the nominee or that in reality would be offered to an equivalent Australian worker i.e. positions advertised were only part time/casual and/or the salary advertised was significantly less; or
The contract pre-dates the LMT evidence (i.e. the nominee was offered the job before it was advertised).
Exemptions from LMT apply to certain countries with which Australia has free trade agreements, including China. Further details aroundLMT can be found here.
Key takeaway:Employers wanting to bring in workers under the TSS need to plan beforehand to ensure they satisfy Labour Market Testing (LMT) requirements, or risk having their nominations refused.
Changing employers or occupations Existing Subclass 457 visa holders who change employers, and therefore require a new nomination, will need to be nominated under the new TSS criteria. Similarly, a Subclass 457 holder who wishes to change occupation will be required to apply for a TSS visa and will require a new nomination for that purpose. Apart from meeting all other legislative criteria, the new occupation must be onone of the occupation lists.
Applying for permanent residency through the Temporary Residence Transition Like 457 visa holders, holders of a TSS visa in the Medium-term stream can apply for permanent residency through the Temporary Residence Transition (TRT) stream of the ENS or RSMS visas. However, new regulations introduced tougher eligibility criteria dealing with age, employment history, salary, English language, and available occupations. Grandfathering provisions apply to 457 visa holders who held or had applied for a 457 visa prior to 18 April 2017.Read our Newsflash for more details about the TSS visa.
In addition, applicants are required to undertake a specified ‘continuous period of employment’ before they are eligible to be sponsored for TRT. This means applicants must have worked for at least three out of the four years (before the nomination is made), while holding a TSS visa in the same position with their nominating employer. Changing employers may affect your eligibility to meet this requirement.
Recently, the Department clarified that employers can sponsor applicants for TRT if they have been working in associated or subordinate entities – that is, the ‘continuous period of employment’ criteria can potentially be satisfied in the context of a larger corporate structure.
Key takeaway:Existing visa holders thinking about changing employers or occupations should seek advice on whether new stricter criteria may apply, as well as how the change will impact their ability to meet the permanent residency requirement.
Linking a new SBS with an existing 457 nomination and visa application The DHA confirmed that a new Standard Business Sponsorship (SBS) lodged after the introduction of TSS on 18 March 2018 can be linked to an existing 457 nomination and visa application. Since a SBS is an independent entity, it does not matter under which program (457 or TSS) the SBS has been approved.
TSS visa processing times Processing timesfor the TSS visa are reportedly much quicker than for the previous Temporary Work (Skilled) (Subclass 457) visa program, with 75% of applications currently being processed within:
57 days for the short term stream
55 days for the medium term stream
28 days for the labour agreement stream.
Key takeaway:Applicants should be reminded that TSS applications must be complete at lodgement, as no opportunity to provide further documents is given if the initial application is assessed to have not met the criteria.
Invitation rounds for SkillSelect now held monthly
SkillSelect invitation rounds for Skilled - Independent (Subclass 189) and Skilled - Regional Provisional (Subclass 489) visas will now occur once each month, on the 11th day of each month, starting from 11 August 2018. Previously, they were held twice a month.
The DHA clarified there will be no change to the overall number of invitations provided each month. At the same time, they stated that invitation numbers could fluctuate depending on processing capacity and pipeline.
Changes to manner of lodging parent and partner visas
New regulations from 1 July 2018 mean in-person lodging of applications is no longer available for parent visas. Instead, they must be lodged via post to locations specified inLegislative Instrument IMMI 18/079. The visas affected are:
Subclass 103 Parent (Migrant)
Subclass 804 Aged Parent (Residence)
Subclass 143 Contributory Parent (Migrant)
Subclass 864 Contributory Aged Parent (Residence)
Subclass 173 Contributory Parent (Temporary)
Subclass 884 Contributory Aged Parent (Temporary)
Meanwhile,Legislative Instrument IMMI 18/103determined that partner and prospective marriage visa applications must be lodged online using the relevant online form. Paper applications will only be accepted in compelling circumstances and must be authorised by the Department. The following visas are affected:
Subclass 801 (Partner) (Residence)
Subclass 100 (Partner) (Migrant)
Subclass 820 Partner (Temporary)
Subclass 300 (Prospective Marriage) (Temporary)
Subclass 309 Partner (Provisional) (Provisional)
Temporary sponsored parent visa a no-show
Despite announcing in May 2017 the introduction of a new temporary sponsored parent visa that would allow Australian citizens and permanent residents to sponsor their parents to stay in Australia for up to five years at a time, the legislation currently remains stuck in Parliament. With processing times for Contributory Parent (Migrant) visas (Subclass 143) blowing out to four years, the long delay of the new temporary sponsored visa has been frustrating for citizens with parents still overseas. Key takeaway:Parent visas continue to be incredibly difficult to apply for. An interim solution is to apply for the Contributory Parent (Temporary) visa (Subclass 173) first, which allows parents to live in Australia for up to two years. It is possible to then switch to Subclass 143 later. Holders of a temporary contributory parent visa who apply for the corresponding permanent visa during the two years obtain certain concessions, including a substantially reduced first instalment visa application charge, and not having to be reassessed on certain criteria. Moreover, parents in the parent visa queue are granted more generous visitor visas.
TOEFL paper-based test removed for student visas
Regulations from 6 June 2018 removed the TOEFL-PBT (paper based test) as an accepted English language for Subclass 500 (Student) visa applications. This was due to the test's inability to measure the English language speaking skills of an applicant. Very few candidates - less than 3% - take the paper version of the TOEFL test.
TOEFL-PBT results will be accepted for Subclass 500 applicants who took the new TOEFL paper test between 14 October 2017 and 27 May 2018.
Streamlining of services for business and tourist visas in China
On 3 April 2018, China introduced a new system under which three China locations (Beijing, Guangzhou and Shanghai) will work together as one office with regards to various visa-related functions. As part of this new structure, the Department has introduced a centralised case distribution system for all e-lodged Visitor Visa applications in China. This should result in standardised and more efficient decision-making.
Online lodgment via ImmiAccount is available to People’s Republic of China (PRC) passport holders of most visa subclasses. Online services are also available to track the status of an application, change details, upload new documents and check visa conditions. For more information on the online services available, visit the Australian Embassy website.
To make Australia more attractive as a destination for business and tourism, the Department has made available a priority consideration (fast-track) serviceto certain Visitor visa (Subclass 600) applicants. For an additional AUD1,000 fee, the Department will aim to finalise applications within two business days.
Key takeaway:Whether for business or tourism purposes, visa applicants who hold a PRC passport are strongly encouraged to use online services wherever possible to ensure the most efficient response.
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