IMPACT – HIGH

The Australian Government continues to make changes and provide updates on its skilled visa programmes and other immigration initiatives. Recent developments touch on everything from the implementation of the new Temporary Skill Shortage (TSS) visa, to how international trade agreements affect domestic immigration policy. Among key developments:

  • The Department of Immigration and Border Protection has provided updated information on reforms that are set to take effect in March of 2018.
    • Transitional Provisions: DIBP has indicated that transitional provisions from March 2018 may be available to those who held or lodged applications for Subclass 457 visas on or before 18 April 2017. These measures would allow for these individuals to have access to an employer-sponsored pathway to permanent residence, though details on how these transitional provisions will apply are not yet available. BAL anticipates that additional information will be provided in the next month or so, and is closely monitoring developments and any impact they might have for people interested in pursuing permanent residence in Australia.
    • Labour Market Testing requirements: Labour Market Testing will be mandatory for TSS visa applicants when the visa replaces the Subclass 457 visa in March 2018. Whilst exact labour market testing requirements have not yet been confirmed, the DIBP has indicated that sponsors who want to ensure they meet the criteria once it is established should consider: (1) advertising positions for a reasonable period of time before seeking to fill positions with foreign workers; (2) ensuring that advertisements specifically mention the nominated position, including the terms and conditions that are eventually offered to a foreign worker; and (3) ensure that advertisements can be accessed nationally, e.g., by placing advertisements on job sites as opposed to using free online advertising options.
    • Occupation lists: The Australian Government is preparing to undertake a further review of the eligible lists of skilled occupations that can be filled by foreign nationals. The Government made a number of changes to the Medium and Long-term Strategic Skills List (MLTSSL) and the Short-term Skilled Occupation List (STSOL) in April and again in July. Officials have indicated that the lists will be updated every six months. The next update is set for January of 2018, ahead of the introduction of the TSS visa.
    • Changes associated with the TSS visa: Employers are reminded that the introduction of the new TSS visa programme will bring with it additional costs, most prominently the requirement that employers pay into a Skilling Australians Fund. The increased costs associated with the TSS visa should be a key consideration, especially for employers with foreign employees who may need to apply for a new temporary Australian work visa next year.
  • Visa applicants are experiencing longer-than-usual processing times.
    • Subclass 457 applicants: Employers without accredited sponsorship status are experiencing an increase in average processing times for 457 visa applications. According to DIBP figures, the department is finalising its assessment of 75 per cent of Subclass 457 applications within five months from the date an application is lodged. Some 90 per cent are being finalised within 10 months. It is currently not uncommon for Subclass 457 applicants to wait at least three months before their application is assigned to a case officer for assessment. Employers may need to adjust start dates and timelines based on current processing times and are encouraged to take the processing times into consideration, especially for positions that need to be filled before March 2018.
    • Employer Nomination Scheme (subclass 186) visa (ENS) and the Regional Sponsored Migration Scheme (subclass 187) visa (RSMS) applicants: Processing times in these categories have also increased. This is largely because of an influx of new applications since April 2017, when the overhaul of Australia’s skilled visa programmes was announced. According to the DIBP, applications are taking anywhere from six to 15 months (sometimes longer). Applicants should be prepared to experience lengthy and inconsistent processing times associated with these types of applications.
  • Additional Labour Market Testing documentation will be required with some visa applications.
    • Effective 1 October, Subclass 457 visa applications that require labour market testing must be supported by (1) copies of any relevant advertisements (only one copy is required if the same ad is published across multiple platforms) and (2) receipts for any fees paid (if fees were paid). The Domestic Recruitment Table (DRT) will no longer be accepted as sufficient evidence that the labour market has been properly tested to ensure that no Australian citizen, permanent resident or visa holder is available to fill the position in question.
  • Four-year Subclass 457 visas available in certain cases governed by international trade agreements. DIBP has recently sought to clarify the application of international trade agreements to certain Subclass 457 visa applicants, nominated in to occupations that fall on the STSOL where they may be granted a visa valid for up to four years, rather than for up to just two years. This includes cases where:
    • The nominee is (1) NOT working in China, Singapore or Thailand; (2) is a citizen or permanent resident of a World Trade Organisation country;  (3) is an intra-corporate transferee; and (4) is nominated as an Executive or Senior Manager, as defined by DIPB.
    • The nominee is an intra-corporate transferee who works for an Australian associated entity of the sponsor that is operating in China, Singapore or Thailand.
    • The nominee is an independent executive or senior managers are seeking to establish a branch office in Australia for a business that operates in China or Thailand.
    • The nominee is a Chinese national nominated for a job as a Wushu Martial arts instructor (under ANZSCO 452317), Mandarin language tutor (under ANZSCO 249299) or a practitioner of traditional Chinese medicine (under ANZSCO 252214).
  • Some occupational caveats do not apply to intra-corporate transferees in cases governed by an international trade agreement. Occupational caveats do not apply to applications where the nominee is an intra-corporate transferee to Australia and is currently working in a World Trade Organisation country and nominated in to any of the following occupations:
    • Chief Executive or Managing Director (ANZSCO 111111).
    • Corporate General Manager (ANZSCO 111211).
    • Corporate Services Manager (ANZSCO 132111).
    • Sales and Marketing Manager (ANZSCO 131112).
    • Supply and Distribution Manager (ANZSCO 133611).
  • Peru has been added to Australia’s Work and Holiday programme.
    • Under a reciprocal agreement that took effect 1 October, Australia and Peru will each open up 100 spots for visa applicants ages 18 to 30 to obtain Work and Holiday visas to travel, work and study in each other’s countries.
    • Australia now has Work and Holiday visa arrangements with more than 20 countries, including Argentina, Bangladesh, Chile, China, Hungary, Indonesia, Israel, Luxembourg, Malaysia, Poland, Portugal, San Marino, Singapore, Slovakia, Slovenia, Spain, Thailand, Turkey, the United States, Uruguay and Vietnam.
  • The Turnbull government’s citizenship bill appears headed for defeat.
  • Australia’s Federal Opposition has called on the Government to admit defeat on a bill that would make it more difficult to become an Australian citizen. As BAL reported in September, the bill lacks support in the Australian Senate and is unlikely to pass in its current form. The bill must be voted on by 18 October or it will effectively be scrapped. The current version includes provisions to extend the permanent residency requirement to four years before foreign residents can apply for citizenship, require applicants to pass an English language test, assess an applicant’s commitment to Australian values, and require applicants to demonstrate how they have integrated into Australian society.
  • The Australian Labor Party is now calling on DIBP to revert to its pre-April citizenship rules, saying the DIBP has adopted administrative processes in line with the bill’s proposals even though the legislation has not passed. Assuming the bill does indeed fail, a freeze on citizenship applications will be lifted and people interested in lodging new applications, as well as those whose applications have been pending since 20 April, will be able to have their applications adjudicated based on criteria as established before 20 April.

BAL Analysis: Australia’s immigration policies continue to change at a rapid pace. BAL continues to work with clients and to lobby Government officials, aiming to ensure that client interests are represented as immigration rules change. Those with questions or concerns about how any of the recent changes will affect their company or their employees should not hesitate to contact BAL.

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

MARN: 0850984.

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