IMPACT – HIGH

What is the change? Australia’s Department of Home Affairs has released new information about the country’s skilled visa programmes, including new information on the introduction of the Temporary Skill Shortage (TSS) visa (subclass 482) programme and related changes to the Employer Nomination Scheme (ENS) (subclass 186) and the Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa programmes. The Department also said changes to skilled occupation lists will be introduced and that information about the forthcoming Skilling Australians Fund will be released once it is available.

What does the change mean?

  • Implementation timeframe: Ongoing. Most of the changes are set to be introduced in March, but no exact date has been provided yet.
  • Visas/permits affected: Temporary Skill Shortage (TSS) visas, Employer Nomination Scheme (ENS) visa (subclass186), and the Regional Sponsored Migration Scheme (RSMS) visa (subclass 187).
  • Who is affected: Companies sponsoring foreign workers under the Subclass 457, ENS or RSMS programmes and employers planning on recruiting foreign workers on TSS visas.
  • Next steps: Additional information will continue to come out this month and in March. BAL will continue following developments and will alert clients to additional changes once they are announced.

Key information: The Department provided new information in its Skilled Visa newsletter for February, including information on (1) the TSS visa programme, (2) the ENS and RSMS visa programmes, (3) occupation lists, and (4) the forthcoming Skilling Australians Fund.

The TSS Visa Programme. The TSS Visa Programme will be introduced in March, replacing the current Subclass 457 visa programme.

  • Transitional arrangements will be available. The Department confirmed that Standard Business Sponsorship (SBS) applications lodged before the TSS implementation date will be processed under current rules, with some exceptions that will benefit employers. For example, sponsorships will be valid for up to five years. Additionally, training benchmarks will not apply subject to the implementation of the Skilling Australians Fund (see below).
    Subclass 457 nomination applications for current visa holders that are lodged before the implementation date will be processed under current rules.
    Subclass 457 nomination applications for visa applicants, however, will only be processed under the current rules if the related visa application is also lodged before the implementation date. If the related visa application has not been lodged as of the implementation date, the nomination application will not be processed and the application fee will be returned.
    Subclass 457 visa applications lodged before the implementation date will be processed under current rules. Successful applicants will be issued a Subclass 457 visa, rather than a TSS visa.
  • Sponsors will be able to renew their sponsorship by completing a short form. Once the TSS visa is implemented, sponsors will be asked to complete a basic application to renew their sponsorship for five additional years. Applications will be automatically approved unless (1) integrity concerns arise, (2) sponsors are seeking accreditation for the first time, or (3) the sponsor states that they do not meet accreditation criteria. Sponsors are encouraged to renew their sponsorship about two months before their current sponsorship lapses.
  • New labour market testing requirements will be introduced. Labour market testing will be mandatory except in cases involving an applicable international trade agreement. Details have not been finalised, but officials said (1) a number of labour market testing options will be available, including posting on national recruitment websites and advertising on print media or radio; (2) sponsors will be required to advertise jobs for a set amount of time before they will be able to proceed with lodging a nomination; (3) advertisements must be in English; and (4) current flexibility will continue in regard to nominations for existing visa holders because of a change in business structure or pay rate as well as for talent-based positions, e.g., athletes, chefs, academics, and researchers.
  • Applicants will be required to have relevant work experience. Applicants will be required to have worked in the nominated occupation or a related field for at least two years. Detailed policy will be established in a TSS visa Procedural Instruction that will be published on the TSS visa implementation date. Interim guidance provides that work experience (1) will be considered flexibly and in the “context of the nominated occupation and industry practices,” (2) must have been completed in the past five years and will be calculated in terms of full-time work (though part-time work may also be considered), (3) can include experience as part of a Master’s or Ph.D. program may be considered in relevant occupations, (4) can include clinical placements or internships for medical practitioners, (5) can include the internship component of the Professional Year Program in relevant occupations; and (6) can include experience gained while studying for performing arts occupations.
  • Visa durations. The duration of the visa will depend on the nominated occupation and will be limited to the employment period – from one to four years.

ENS and RSMS streams. The key changes are as follows, subject to transitional arrangements.

  • Skilled occupation lists: The MLTSSL will apply to the ENS and the RSMS, with additional occupations available through the RSMS to support regional employers.
  • Salary requirements. The new market salary framework for the TSS visa will also apply to ENS and RSMS, including Temporary Skilled Migration Income Threshold (TSMIT) requirements.
  • Residency. The waiting period will be extended from two to three years to be eligible to transition to permanent resident.
  • Work experience. At least three years’ work experience relevant to the particular occupation will be required.
  • Maximum age. All applicants must be under the maximum age of 45 years at the time of application.
  • Temporary Residence Transition (TRT) stream. Current rules on occupation lists, work experience and maximum age will continue to apply for individuals who held a subclass 457 visa on 18 April 2017 and continue to hold this visa or a TSS/bridging visa at the time of application, or who lodged a 457 visa application on or before 18 April 2017 which was subsequently granted and continue to hold this visa or a TSS/bridging visa at the time of application.

Occupation lists. Employers should anticipate the following changes to occupation lists.

  • Some existing occupations may be moved between the MLTSSL and the STSOL.
  • Additional skilled occupations will be made available to employers in regional areas for certain visa programmes.
  • There will be changes to caveats and to specific lists that apply to particular visa programmes.
  • Changes will not affect pipeline applications.
  • There will be no new skilled occupation list instrument released for the 457 visa, as new applications will be closed.
  • There will continue to be individual occupation lists via legislative instrument for separate visa programmes, but one combined list will be published on the website.
  • Occupations available under the labour agreement streams of the ENS and TSS programmes will be those specified in the relevant labour agreement.

Skilling Australians Fund. The legislation authorising collection of a fee from employers to fund the skilling of Australian workers has passed the House but time expired during debate in the Senate. See separate BAL alert here.

BAL Analysis: Employers should prepare for these changes and work with their BAL professional to explore their impact on recruitment and retention of international talent.

This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.

MARN: 0101248

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