Visa & Immigration Update | Department of Immigration and Border Protection

Department of Immigration and Border Protection – Name Change 

The Home Affairs Portfolio was created on 20 December 2017, amalgamating Australia's immigration agencies, federal law enforcement, national and transport security, criminal justice and emergency management.

The Department of Immigration and Border Protection is now formally known as the Department of Home Affairs.

Changes to the Occupations Lists

The changes to the occupation lists have been announced and they apply to new visa applications from 17 January 2018.

Occupations added to STSOL 

• Property Manager (caveat applies)
• Psychotherapist
• Real Estate Representative (caveat applies)

Occupations moved from STSOL to MLTSSL

• Horse Breeder
• Management Consultant (and caveat has been amended - base salary requirement raised to $90,000)

Occupations removed from the lists

• Building Associate
• Hair or Beauty Salon Manager

Caveat only changes

• Recruitment Consultant – amended caveat
• Supply and Distribution Manager - amended caveat
• Taxation Accountant - amended caveat
• Massage Therapist – amendment to wording
• Management Accountant – new caveat
• Accommodation and Hospitality Managers NEC - new caveat

Collection of Tax File Numbers 

Additional changes to the Subclass 457 visa program were planned for implementation in December 2017. These changes included publishing details of sponsors who are sanctioned for breaching their sponsorship obligations and the collection of tax file numbers to facilitate data matching with the Australian Taxation Office. These changes are now expected to occur towards the end of February or early March 2018.

Singapore-Australia Free Trade Agreement 

On 1 December 2017, the agreement to amend the SAFTA came into force. The amended agreement provides that sponsors are exempt from Labour Market Testing (LMT) if the person identified in the nomination application is a citizen/national/permanent resident of Singapore and the sponsor provides information to this effect as part of the nomination application. 

Same Sex Marriage 

Effective 9 December 2017, clients who are in a same-sex marriage can apply for a visa as their partner's 'spouse', rather than as their 'de facto partner'.

Reminder: The TSS Visa is coming

As previously advised by SIRVA, the Government is introducing the TSS visa in early March 2018. There will be three options available under this new visa program:

1. Short-term stream – This is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if an international trade obligation applies)
2. Medium-term stream – This is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL) for up to four years, with eligibility to apply for permanent residence after three years
3. Labour Agreement stream – This is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth

Employers in regional Australia will have access to a broader range of occupations when the TSS visa is introduced.

At the time of lodging a TSS nomination application, employers will need to select an employment period of up to:

• 1 year or 2 years for the short-term stream (unless an international trade obligation applies); and
• 1 year, 2 years, 3 years or 4 years for the medium-term or labour agreements stream.

A number of initiatives will also be introduced to help streamline processing of temporary skilled work visas and contribute to reduced processing times, particularly for lower risk applications. They include:

• A new standard five year sponsorship agreement period (including for start-ups)
• Implementing auto-approval of complete streamlined lower-risk nomination applications lodged by accredited sponsors
• A new streamlined 'renewal process' for existing sponsors – that is, a shorter application form to fill out and possible auto-approval of such sponsorship applications
• New online forms for the new TSS visa

If your business is not currently an Accredited Sponsor, please contact SIRVA to discuss your eligibility.

Transitioning from the Subclass 457 Visa to the TSS Visa

Employers who are already approved standard business sponsors will be able to sponsor skilled overseas workers under the TSS visa program.

Subject to final approval of transitional arrangements, it is expected that:

• If subclass 457 nomination and visa applications are both lodged prior to TSS implementation, they will be processed under the current framework
• If a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will, essentially become 'redundant' as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved (subject to the specific scenarios below).

Note:

• Secondary 457 visa applicants will be able to lodge a subsequent dependent TSS application and if they meet requirements, will be granted a TSS visa linked to their family's subclass 457 visa/nomination application. The validity period of the TSS visa will match the expiry date of the subclass 457 primary visa holder.
• Subclass 457 visa holders whose visa is not expiring but wish to change employer after the implementation of TSS, can get their new employer to lodge a TSS nomination application to facilitate this as per current arrangements
• Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity), will however, need to lodge a new TSS visa application referencing a new TSS nomination application

Labour Market Testing for the TSS Visa

As previously advised by SIRVA, more robust arrangements for Labour Market Testing will be in place for the TSS visa and occupation exemptions will no longer available. This is to ensure that employers try to find a suitably qualified Australian before they seek to employ an overseas skilled worker on a TSS visa.

The Department of Home Affairs has advised as follows:

“We understand that employers would like as much notice of these new arrangements as possible to ensure that they can amend their business practices where required 'in advance'. It is not, however, expected that employers will have problems meeting these new requirements given that:

• Sponsors are already expected to test the local labour market before utilising the subclass 457 program (except where international trade obligations apply); and
• The requirements will be able to be met by employers who advertise key job details, in English, via a channel that has sufficient coverage (for example: national recruitment website such as jobactive.gov.au, national print media).”

More details are expected to be provided by the Department in February.

Permanent Residence under Employer Nomination Scheme

As previously advised by SIRVA, the Employer Nomination Scheme (ENS) visa (Subclass186) and the Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) programs will also be impacted by the March 2018 changes. The main changes are as follows:

• The nominee's occupation will need to be on the Medium and Long-term Strategic Skills List (MLTSSL) unless:
  • Their employer is in a regional area, in which case additional occupations will be available for selection, as well as occupations on the MLTSSL; or
  • The transitional arrangements outlined below apply.
• TSS salary and condition provisions will apply, with employers required to pay the Australian market salary rate and meet Temporary Skilled Migration Income Threshold (TSMIT) requirements
• The eligibility period for the Temporary Residence Transition (TRT) stream will be extended from two to three years
• At least three years' work experience relevant to the particular occupation will be required
• Subject to any age exemptions, all applicants must be under the maximum age requirement of 45 at the time of application, unless the transitional arrangements outlined below apply; and
• Sponsors will be required to pay a contribution to the Skilling Australians Fund (SAF) at nomination stage 

Skilling Australians Fund Levy
A reminder that this levy will replace the current training benchmarks for employers sponsoring workers on Subclass 457/TSS visas and permanent Employer Nomination Scheme (Subclass 186) visas and Regional Sponsored Migration Scheme (Subclass 187) visas.

From March 2018, businesses with turnover of less than $10 million per year will be required to:

• Make an upfront payment of $1,200 per visa per year for each employee on a Temporary Skill Shortage visa
• A one-off payment of $3,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or Regional Sponsored Migration Scheme (subclass 187) visa

Businesses with turnover of $10 million or more per year will be required to:

• Make an upfront payment of $1,800 per visa year for each employee on a Temporary Skill Shortage visa
• A one-off payment of $5,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa or Regional Sponsored Migration Scheme (subclass 187) visa

Transitional Arrangements – 457 to PR

Subject to final approval, Subclass 457 visa holders (or applicants) as at 18 April 2017 who continue to hold this visa or a TSS visa/related bridging visa will be exempt from the following requirements (which will come into effect in March 2018) under the Temporary Residence Transition (TRT) stream:

• Occupation list
• Requirement to be under 45 years of age at time of application (ie. current age requirement of under 50 years of age at time of application will apply with existing age exemptions available)
• The eligibility period of 3 years in the nominated occupation (ie. current 2 year requirement will apply)
• 3 years relevant work experience

It is important to note these transitional arrangements are relevant for TRT stream applications only. No transitional arrangements are in place for Direct Entry stream applicants who are expected to meet the requirements in place at time of application. New requirements will not be applied to pipeline applications.

Disclaimer: The information provided herein is of a general nature only and does not constitute legal advice. For more detailed and case specific information or advice, please contact the visa team at SIRVA Relocation on +61 3 8696 3400 or visainbox@sirva.com.au

[Maria Hrambanis LLB BCom, Manager - Visa & Immigration (MARN 1067049)]