457 visa changes

Being a 457 holder in a TSS world

Since the March 2018 changes to the Temporary Work visa program were rolled out, Putt Legal has been approached by a number of current and prospective clients who already hold subclass 457 visas, and want to know what these changes mean for their permanent residence prospects.

Previously, 457 holders were able to apply for permanent residence through the Temporary Resident Transition (‘TRT’) scheme of the subclass 186/187 visas, after working for 2 years and fulfilling various other criteria. The TRT arrangements have changed, however there are transitional arrangements in place for some 457 visa holders.

The below table provides a general overview, but please contact us on (08) 9221 7682 for individualised advice:

Category of 457 holder

Transitional arrangement

Held a subclass 457 visa on 18 April 2017 and continues to hold this visa at the time of TRT application

  • The applicant’s nominated occupation does not need to be on the current list of eligible occupations.

  • The age requirement will remain at less than 50 years of age with existing age exemptions still available

 

  • The minimum period an applicant is required to have been employed as the holder of a subclass 457 or TSS visa will remain at two years out of the last three years.

Held a subclass 457 visa on 18 April 2017 and holds a bridging visa related to a 457/TSS visa application at the time of TRT application

Lodged a 457 application on or before 18 April 2017 which was granted, and continues to hold this visa at the time of TRT application

Lodged a 457 application on or before 18 April 2017 which was granted, and holds a bridging visa related to a 457/TSS visa at the time of TRT application

Anyone else

The new requirements apply

These transitional arrangements are in place to ensure that people who already held or had applied for 457 visas before the changes were announced on 18 April 2017, are not unfairly disadvantaged by the new changes.

 

TSS visa update

Current and prospective applicants for skilled visas will have been keenly awaiting the Department’s announcement of the implementation date for the TSS visa and other changes to the permanent employer-sponsored program.

The date for these changes has not yet been announced, however according to the Department they are still scheduled to take place this month.

Importantly, the Skilling Australians Fund Bill (‘the SAF Bill’) is yet to be passed by parliament. Readers will recall that the SAF Bill proposes to replace the current ‘Training Benchmarks’ with the Skilled Australia Fund levy – instead of making a contribution to an industry training fund or expending part of their gross payroll on training Australian staff, employers will have to make upfront payments into the fund as part of the nomination process (for more on this, see our blog post dated 2 February 2018).

It is unclear if, and when, the SAF Bill will be passed – the House of Representatives is not sitting again until 13 March 2018, and the Senate will not sit until 19 March 2018.

The Department has advised that this will not affect the rest of the changes, which will come into effect as soon as the remainder of the legislative and functional processes are finalised.

This means that any nominations lodged after the March implementation date but before the SAF Bill is passed will continue to require proof of expenditure towards the Training Benchmarks. Once the SAF Bill is passed and becomes law, employers will instead have to pay the levy which may well work out to be much more expensive than the Training Benchmarks. The levy payment is non-refundable, even if the nomination or visa application is refused.

Due to the uncertainty of these timeframes, visa applicants should endeavour to finalise and lodge their nominations and applications as soon as possible, so that they can be processed under the ‘old rules’.

March 2018 Overhaul of Subclass 457 Programme

The implementation of the Temporary Skills Shortage (TSS) scheme to replace the subclass 457 programme is fast approaching. So what will this mean for applicants and employers?

1. On 1 March 2018, the subclass 457 scheme will be abolished completely and replaced with the TSS visa.

The TSS visa will essentially have 2 streams –

  • Short-term stream visas which will be valid for up to 2 years. This stream will apply to any occupation on the Short-term Skilled Occupation List (STSOL)*
  • Medium-term stream visas which will be valid for up to 4 years. This stream will apply to any occupation on Medium and Long-term Strategic Skills List (MLTSSL)* * employers in regional Australia will have access to a broader range of occupations.

Applicants with occupations on the STSOL will only be able to apply for one onshore renewal, for a further 2 years. There is no pathway to permanent residency through this stream. Applicants with  occupations on the MLTSSL will have a pathway to permanent residence after three years’ work on their TSS visa, subject to meeting other eligibility criteria.

The application process will still require employers to become Standard Business Sponsors if they do not hold SBS approval already, and ‘nominate’ the relevant occupation.

 

2. The visa application cost will increase

While the TSS cost of sponsorship and nomination will remain the same ($420 and $330, respectively), the primary application fees for the TSS visa are more expensive than the current subclass 457 fees –

Short-term stream

  • Primary Applicant – $1,150
  • Adult Dependent – $1,150
  • Child Dependent – $290

Medium-term stream

  • Primary Applicant – $2,400
  • Adult Dependent – $2,400
  • Child Dependent – $290

 

3. The Department will introduce the Skilled Australia Fund levy (SAF)

The SAF will be managed by the Department of Education and Training, and will replace the current training benchmarks – currently, employers are required to spend at least 1% of their annual gross payroll towards the training of Australian employees or pay over 2% towards an approved training fund.

From March 2018, sponsoring employers will instead be required to pay the SAF levy ‘up front’ as part of each nomination per applicant, for every year that they wish to sponsor that applicant.

The SAF levy costs will be as follows:

Small business (annual turnover less than 10 million)

  • TSS visa – $1,200 per year/part thereof
  • ENS/RSMS – $3,000 one-off

Other businesses

  • TSS visa – $1,800 per year/part thereof
  • ENS/RSMS – $5,000 one-off

The SAF will not apply to employers that received SBS approval prior to March 2018, unless they are renewing their sponsorship after that date.

 

4. Employers will be required to undertake compulsory Labour Market Testing (LMT)

LMT will be a mandatory requirement for the TSS visa unless an international trade obligation applies – occupation exemptions will no longer apply. Employers will need to demonstrate their efforts to find a suitably qualified Australian citizen before they can seek to employ an overseas worker.

 

5. Applicants will be subject to more stringent requirements

Applicants for the TSS visa will need to demonstrate –

  • At least 2 years’ relevant work experience
  • Good character (through mandatory police clearances)
  • English language (IELTS or equivalent testing) results with a minimum score of 5 in each testing component and an overall score of 5 (Medium-term stream applicants only)

 

If your subclass 457 nomination and visa applications were both lodged prior to TSS implementation, they will be processed under the current framework. However, employers and applicants should note that subclass 457 nominations cannot be linked to TSS visa applications, so if you have lodged a nomination without an associated application, the nomination will become redundant after 1 March 2018 (even if it is already approved). Employers and applicants are encouraged to complete and lodge all outstanding nominations and applications together before the end of February, and to become Standard Business Sponsors before the levy is implemented.

Contact Putt Legal if you require urgent lodgement of subclass 457 SBS, nominations and visa applications.

TSS visa - changes to training

On 28 April 2017, the Department announced the new TSS scheme which will replace the 457-visa programme in March 2018.

Among other changes announced, the Department will introduce the Skilled Australia Fund levy (SAF) to be managed by the Department of Education and Training.

The SAF will replace the current training benchmarks that sponsoring employers are required to satisfy for Subclass 457 and Subclass 186 visas.

Currently employers are required to spend at least 1% of their annual gross payroll towards the training of Australian employees or pay over 2% towards an approved training fund, to satisfy the training benchmarks.

From March 2018, sponsoring employers will instead be required to pay the SAF levy “up front” as part of the nomination and will be required to do so for each nomination lodged.

The SAF levy costs will be as follows:

  • Small business (annual turnover less than 10 million)
    • TSS visa - $1,200 per year/part thereof
    • ENS/RSMS - $3,000 one-off
  • Other businesses
    • TSS visa - $1,800 per year/part thereof
    • ENS/RSMS - $5,000 one-off

This means if a small company wishes to sponsor a person who has an occupation on the Medium and Long-term Strategic Skills List (MLTSSL) for a period of 4 years, the company will need to pay $4,800 upfront towards the SAF levy.

Fortunately for Standard Business Sponsors that received approval prior to March 2018, the SAF will not apply to them, unless they are renewing their sponsorship after that date.

The Department has also announced an increase to the Visa Application Charges (VAC) relating to 4-year TSS visas:

 Primary Application VAC                    Adult Dependent VAC                   Child Dependent VAC

          $2,400                                              $2,400                                                  $600      

If you are an employer who has been considering becoming a Standard Business Sponsor, the time to do so is now, before the levy is implemented. 

Contact Putt Legal for further information in relation to the upcoming changes to the 457-visa programme and TSS scheme.

Mandatory publication of sanctions against 457 Sponsors

In August 2017, the Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 was introduced into the House of Representatives. The Bill, among other things, proposes to amend the Migration Act to allow the public disclosure of sponsor sanctions.

Businesses approved as sponsors under the Temporary Work (Skilled) visa (subclass 457) programme administered by the Department of Immigration and Border Protection are required by law to meet the sponsorship obligations outlined in the Migration Act.

The measures in this Bill will apply to the subclass 457 visa and its 2018 replacement, the Temporary Skill Shortage (TSS) visa. This means that any 457 employer who is subject to sponsorship obligations should be aware that any sanctions taken against them for non-compliance will be liable for public disclosure.

The government’s justification for this amendment is as follows – ‘The purpose of publishing information about actions taken in relation to approved or former approved sponsors is to deter businesses from breaching their sponsorship obligations, and to allow Australians and overseas workers to inform themselves about a sponsor’s breaches.  It will also increase public awareness of the Department’s sponsor monitoring activities.’

457 sponsors should be aware of this proposed change and ensure that they are compliant with their sponsorship obligations. These include (but are not limited to) –

  • Ensuring equivalent terms and conditions of employment
  • Engaging in non-discriminatory recruitment practices
  • Ensuring that sponsored persons continue to work in the nominated occupation
  • Keeping records
  • Reporting changes

It is important to note that not all sponsorship obligations cease when the sponsored subclass 457 visa holder stops working for the sponsor.

A full list of sponsorship obligations is available on the Department of Immigration and Border Protection website – http://www.border.gov.au/Trav/Visa-1/457-#tab-content-3