Understanding the ABCs behind 457

By Our Reporter
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Pending applications, changing the nominated occupations, classes and sub-classes, Sukhdev Singh explains the visa reform

On 18 April, the Government announced a number of changes in relation to the temporary and permanent skilled migration programmes with the key decision to abolish of Temporary Work (Skilled) visa (subclass 457 visa) and replace it with the completely new Temporary Skill Shortage (TSS) visa in March 2018. While various reforms have come in effect from 19 April, there are many others that will be executed in stages until March 2018. These reforms will be completed by this period to replace it with the TSS Visa.

This announcement of changes has raised specific questions which are addressed below along with the reforms that will be executed until March 2018:

Changes from 19 April 2017

For the existing and prospective 457 visa applicants:

  • The occupation lists has significantly reduced from 651 to 435 occupations.
  • 216 occupations are removed from the list of eligible occupations; and
  • 59 caveats now apply to specified occupations -these either relate to work experience, region allocation or are occupation specific. These caveats will be subject to regular review and maybe added, altered or removed in future; and
  • Access to 24 occupations out of 435 is limited to regional Australia.
  • Both the occupation list have been renamed and a new list is in effect which include Short-term Skilled Occupations List (STSOL) instead of Consolidated Sponsored Occupation List (CSOL) and Medium and Long-term Strategic Skills List (MLTSSL) instead of Skilled Occupations List (SOL). STSOL will be revised every six months based on advice from the Department of Employment.

Validity period: The maximum duration of 457 visas issued from this date for occupations that are on the STSOL will be 2 years. Occupations on the MLTSSL will continue to be issued for a maximum duration of 4 years unless a shorter period of employment was requested by the sponsor in the nomination or the sponsor was a ‘start up’ business with an approved sponsorship agreement for only 18 months.

For new applicants for permanent employer sponsored skilled visa programmes:

If your occupation is on the STSOL or an eligible occupation on the MLTSSL you can apply for the ENS Direct Entry stream. However, Current holders of subclass 457 visas continue to be eligible to apply for permanent residency through the Temporary Residence Transition (TRT) stream of the ENS visa. Access to the TRT stream is not based on the occupation lists and is therefore unaffected by these changes.

Q. Can people still apply for subclass 457 visas?

A. YES. The subclass 457 programmes remains open until the new TSS visa comes into effect in March 2018. However, the new occupation list has been restricted (19 April 2017)and integrity settings will be further tightened.

Q. Do the above changes have any impacts on existing subclass 457 visa holders?

A. No—unless they wish to change employers or positions, in which case a new nomination will need to be approved under the new arrangements.

This will include situations where due to business structure changes, an employer is required to lodge a new sponsorship application and is required to lodge new nomination applications to accommodate existing subclass 457 visa holders(unless they continue to work for an associated entity of an Australian sponsor). A new nomination approval for an occupation listed on the STSOL will not result in reduction of the visa period already held by the visa holder.

Q. I have a pending application where the occupation has been removed from the list —what happens now?

A. Once the application has reached the assessment stage; you will be contacted by the Department and given the opportunity to withdraw your application in writing. The letter will specify a period for required response. Alternatively, you can request a withdrawal in writing at any time and your client will then be entitled to a refund of the application fee. If you do not withdraw your application, it will be refused.

Q. Can I get a refund for an approved nomination if a related visa application now cannot be approved?

A. Yes, if, a subclass 457 visa application is unable to be granted where the approved nomination is for an occupation that has been removed from the list, the sponsoring business can request that the nomination be withdrawn and request a refund of the nomination fee.

Q. Can I change the nominated occupation?

A. No—but you can withdraw and lodge a new nomination with a new occupation specified for the nominee. This may, however, raise concerns about the genuineness of the position—particularly if the new occupation is substantially different.

Q. Do the changes impact cases that have a review application pending?

A. Yes—the AAT must make a decision based on the current framework—i.e. they are required to take into account recent occupation removals and caveats.

Q. Where the caveats require at least two years of work experience, what does this mean?

A. This means that a successful candidate for the nominated position would be expected to have completed at least two years full time (as per the industry standard) work experience in the relevant occupation post qualification.

Q. Can you still apply for ENS if your occupation is on the STSOL but not the MTSSL?

A. Yes—currently, if your occupation is on the STSOL or an eligible occupation on the MLTSSL you can apply for the ENS Direct Entry stream. Whereas, current holders of subclass 457 visas are continue to be eligible to apply for permanent residency through the Temporary Residence Transition (TRT) stream of the ENS visa. Access to the TRT stream is not based on the occupation lists and is therefore unaffected by these changes.

Changes from July 2017

For the existing and prospective 457 visa applicants:

  • Occupation lists: The STSOL will be further reviewed and MLTSSL will be revised based on outcomes from the Department of Education and Training.
  • English language requirements exemption: English language salary exemption threshold, which exempts applicants whose salary is over $96,400 from the English language requirement, will be removed.
  • Training benchmarks tightened: Policy settings about the training benchmark requirement will be made clearer in legislative instruments.
  • Character: Provision of penal clearance certificates will become mandatory.
  • Expanding mandatory skills assessments for more occupations

For prospective permanent employer sponsored skilled visa programmes:

  • Occupations lists: The STSOL will be further reviewed and MLTSSL will be revised based on outcomes from the Department of Education and Training.
  • English language requirements will be raised to “competent” for all applicants (IELTS 6 each) with TRT and Direct Entry requirements to be consistent;
  • Age: A maximum age requirement of 45 at the time of application will apply to Direct Entry stream applicants.
  • 3 years skill and experience for Direct Entry applicants;

Q. What changes are being made to the training benchmarks?

A. Policy settings for training benchmark requirements are being clarified and tightened, by setting out:

  • the types of training funds eligible for training benchmark A; and
  • setting out the types of expenditure on training acceptable for training benchmark B.
Changes from March 2018

Subclass 457 visa will be abolished and replaced with the TSS visa.

1. Current Subclass 457 Visa will be replaced by new Temporary Short Skilled visas compromising two streams, Short term and Medium term.

a. The short term stream will be up to two years with an option for an extension available. This stream does not have any direct permanent residency pathway.

b. The medium term stream will be up to four years with an option to apply for permanent residency after three years.

2. Visa eligibility will require at least two year work experience along with the qualification for both streams.

3. Labour market testing (LMT): LMT will be mandatory, unless an international obligation applies.

4. Minimum market salary rate: Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold requirements

5. Character: Mandatory penal clearance certificates to be provided.

6. Workforce: A non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers.

7. Training requirement: Employers nominating a worker for a TSS visa will be required to pay a contribution to the Skilling Australians Fund. The contribution will be:

– payable in full at the time the worker is nominated;

– $1,200 per year or part year for small businesses (those with annual turnover of less than $10 million) and $1,800 per year or part year for other businesses.

8. Base Visa Application fee: $1,150 for two year visa and $2,400 for four year visa

The Short-Term stream:

Renewal: Capacity for visa renewal onshore once only.

Occupations:

• For non-regional Australia, the STSOL will apply.

• For regional Australia, the STSOL will apply, with additional occupations available to support regional employers.

English language requirements: A requirement of an International English Language Testing System (IELTS) (or equivalent test) score of 5, with a minimum of 4.5 in each test component.

Genuine entry: A genuine temporary entrant requirement.

The Medium-Term stream:

Renewal: Capacity for visa renewal onshore and a permanent residence pathway after three years.

Occupation lists:

• For non-regional Australia – the MLTSSL will apply.

• For regional Australia – the MLTSSL will apply, with additional occupations available to support regional employers.

English language requirements: a requirement of a minimum of IELTS 5 (or equivalent test) in each test component.

For prospective permanent employer sponsored skilled visa programmes:

From March 2018, new eligibility criteria for ENS and RSMS will include:

  • an upper age limit of 45 (from 50) for most applicants;
  • occupation must be on the MLTSSL (unless an additional occupation approved for regional areas);
  • a minimum market rate salary: all visa holders must earn at least a minimum salary of $53,900—that is the TSMIT;
  • at least three years’ relevant work experience; and
  • a pathway to permanent residence through TRT requires 3 years on Medium-term TSS visa.

More information concerning the legislative details of future changes will be available closer to their implementation date. This will include information about transitional arrangements for visa applicants and visa holders.

For more information please contact CECA on 03 9663 1318 or email to info@ceca.com.au

 

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