Time and time again the Department of Immigration and Border Protection (DIBP) remind us that ‘The only constant is change.’ That said, with each change, we remind our clients that there can be solutions! Since April 2017, we have worked with many clients to find appropriate pathways under the new regime. As the industry heads into the last few phases of the transition from the 457 to the TSS visa, we share with you further information on what is to be expected.
- Post 1 July 2017, if payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors may be counted towards meeting Training Benchmark B.
- Training undertaken by persons who are principals in the business, or their family members, is excluded.
- If relying on training fees paid as part of a Franchise Agreement, the business must show exactly what percentage of the franchise fee is being attributed and whether it fits into Training Benchmark B.
Due to the way in which the new arrangements for skilled migration have been announced and filtered out, the Department has assured a flexible approach when assessing training benchmark compliance during the period between July 2017 and March 2018.
Allocation time frames
You may have noticed that the Department are frequently increasing their allocation times, which is most frustrating for us and our clients. There does not appear to be fairly allocating permanent skilled applications in order date of lodgement. We have noticed that from time to time the Department will allocate newer applications for assessment, as oppose to those which have been lodged prior to the April legislative changes.
We have addressed this with the Department and the justification? Apparently, it is to help with efficient management of the substantial on–hand caseload and the identified increase in low integrity applications.
The impact of recent occupation list changes
Changes to the list of eligible skilled occupations announced on 18 April and 1 July 2017 do not impact applications in the Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (ENS) or Regional Skilled Migration Scheme (RSMS) visa programs as eligibility is based on the nominee’s subclass 457 history, not if their occupation is ‘on the list’.
In terms of ENS Direct Entry (DE) applications:
- If a nomination application was lodged before 19 April or 1 July 2017 respectively, the list of eligible skilled occupations that was in place at the time of lodgement will still apply to this application. Any related visa application (containing an occupation that has been ‘removed from the list’ post lodgement of the nomination) can also still be approved, where other requirements are met.
- Where a nomination application was received after an occupation was removed from the list, the applicant will not be assessed and the nominator will be offered the chance to withdraw. The same will occur for any related visa applications. If no withdrawal, the Department will move to a refusal decision.
Occupations available for RSMS DE are currently unchanged.
Changes to Evidence of LMT
For nomination applications lodged on or after 1 October 2017, there is now a requirement to provide additional evidence to satisfy the Labour Market requirement. This includes:
- A copy of relevant advertisements; and
- If fees were paid, receipt for any fees paid
- Copies of advertisement(s) referenced in the nomination form must be provided
- If a similar advertisement was placed in multiple media formats, only one copy of the advertisement is required to show the department the content that is being published.
Note: The Domestic Recruitment Table (DRT) will no longer be accepted as sufficient evidence
From 1 July 2017, subclass 457 visa applicants are exempt from English testing only if they;
- are employed by a company operating an established business overseas; and
- are nominated by this company or an associated entity of that company; and
- will receive a base rate of pay of at least AUD $96,400.
March 2018 Update
As we approach the silly season, the end of the famous three numbers that have dominated the migration industry for decades is looming. Change is coming around the corner; how will the March 2018 revolution play out?
Advice on Transitional Provisions
- Individuals who were existing subclass 457 visa holders (or subclass 457 applicants) as at 18 April 2017 will continue to have access to an employer sponsored pathway to permanent residence. Detailed information in relation to the transitional provisions is, however, not yet available.
Advice on labour market testing for March 2018
Sponsors keen to get ahead of the LMT requirements are encouraged to:
- Advertise positions for a reasonable period prior to seeking to utilise overseas workers;
- Ensure advertisements actually advertise the nominated position, including the terms and conditions that would be offered to the overseas worker (for example, the advertisement is not for a casual/PT position with salary of AUD$40,000, whereas the visa application employment contract indicates that the overseas worker will be paid AUD$55,000 for guaranteed full-time hours)
- Ensure advertisements can be accessed nationally (for example, have advertised on JobSearch or Seek, as opposed to a free online advertising service or a shop window).
Most of the announcements this month are guidelines on already announced changes. The most important take away however, is if you are a 457 visa holder and your visa has been granted or lodged prior to 19 April 2017, transitional pathways exist for you! As to when and how, the answers should be revealed soon…
Naturally if you have any questions or would like to discuss how these changes may affect you or your business, please do not hesitate to contact our office.