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IMPACT – MEDIUM
What is the change? Australia is poised to adopt a change to the definition of ‘member of the family unit’ such that children and stepchildren over the age of 23 and family members outside of the nuclear family will not meet application requirements to be granted a visa as a dependent visa applicant. Exceptions will be made for children or stepchildren of any age who are incapacitated to work. Provisions will be included to allow certain applicants’ current Australian visa status as a ‘member of the family unit’ to apply when they are already in Australia and are submitting a subsequent, related visa application.
What does the change mean? The changes will make it more difficult for primary visa applicants to bring children over the age of 23 and relatives who are not part of their nuclear family to Australia.
Background: Under current regulations, children over the age of 23 and members of a visa applicant’s extended family – including parent, brothers, sisters, grandparents, grandchildren, aunts, uncles, nieces, nephews, step-parents, step-brothers, step-sisters, step-grandparents, step-grandchildren, step-aunts, step-uncles, step-nieces and step-nephews – may be included in the definition of the ‘family unit’ for migration purposes (subject to other regulatory requirements) if they can show that they are wholly or substantially financially dependent on the family head and/or their spouse or de facto partner, for their basic living costs (i.e., basic food, shelter and living costs).
Under changes that take effect 19 November, the family unit will be limited, in most cases, to the primary applicant’s nuclear family – his or her spouse, de facto partner, children, step-children or the children of a de facto partner. Children over the age of 23 will also not be counted as members of the family unit unless they are incapable of financially supporting themselves owing to their being incapacitated for work because of a total or partial loss of their bodily or mental functions.
BAL Analysis: The exemptions described above will be provided, and, in many cases, a dependant’s status can be applied for in subsequent applications. On the whole, however, the new regulation will limit the types of relatives that a principal visa applicant can bring with him or her to Australia as a dependant.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 0850984
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Legislation that is pending before Parliament would require certain visa holders to complete and pass a revalidation check to make sure their information is up to date, that they still meet the criteria of their visas and that they do not pose a risk to Australia.
What does the change mean? Under the proposed law, an individual’s visa may be cancelled if the revalidation check reveals “adverse information related to the person holding the visa.”
Background: The bill sets out a framework for reassessment and revalidation of foreign nationals holding certain types of visas, following implementation of the new 10-year validity visitor visas. In exchange for granting longer validity, Australia will require visa holders to pass a revalidation check by logging onto their secure online accounts and answering questions. The overall purpose is to ensure that visitors’ personal information, health and character declarations are up to date and that they continue to meet visa requirements.
Routine revalidation checks will be required for certain visa types and, in rare instances, the Minister for Immigration and Border Protection may require revalidation checks for certain individuals to protect the public interest, such as health or security concerns. Under the bill, a visa holder will be deemed to have passed the revalidation check if there is no adverse information related to the individual, or if there is, that it is reasonable to disregard such information.
If a visa holder fails to complete or pass the revalidation check, the visa will cease to be valid for entry into Australia. (Visa holders already onshore who fail the check will not be considered unlawful while they remain onshore.) The visa holder may subsequently pass the revalidation check, which would put the visa back into effect, allowing the holder to travel to Australia again.
BAL Analysis: The bill has not become law yet, but indicates that Australia is balancing the favourable economic benefits that longer-validity visas will attract more visitors against the need to track individuals holding these longer-validity, multiple-entry visas in case of changes to their individual circumstances.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com
What is the change? The Australian Government has reduced the amount of time subclass 457 visa holders have after ceasing work with their sponsoring employer before they must leave the country or apply to remain in Australia.
What does the change mean? Effective 19 November, subclass 457 visa holders who cease working for their sponsoring employer will have 60 days to leave the country or apply to remain within 60 days. The current time frame is 90 days.
Background: The change is the result of the Department of Immigration and Border Protection’s move to amend what is known as Condition 8107. Condition 8107 applies to all primary subclass 457 visa holders and, for now, states that visa holders who cease work with sponsoring employers must leave Australia or apply to remain within 90 days of cessation.
That time period will change to 60 days for visas approved on or after 19 November.
DIBP said the change will strengthen the integrity of the subclass 457 visa programme and that “reducing the employment cessation period will contribute to subclass 457 visa holders being less vulnerable to informal employment and reduce the period in which they can compete within the Australian labour market for further employment”.
BAL Analysis: Primary subclass 457 visa holders must consider the consequences of the change if they do end up ceasing employment with their sponsoring company.
MARN: 0101248
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com
IMPACT – LOW
What is the change? Australia has recently signed Memorandums of Understanding with Luxembourg and San Marino to introduce reciprocal Work and Holiday Visa programs for young people.
What does the change mean? Under each agreement, 100 individuals between the ages of 18 and 30 from Australia and the partner country (Luxembourg or San Marino) will be able to apply for Work and Holiday visas. The visas allow for Australian and partner country nationals to travel, work and study in each other’s countries for short-term stays.
Background: Luxembourg and San Marino and will join Argentina, Bangladesh, Chile, China, Indonesia, Israel, Malaysia, Papua New Guinea, Poland, Portugal, Slovak Republic, Slovenia, Spain, Thailand, Turkey, the United States and Uruguay to have a reciprocal work and holiday visa arrangement in place with Australia. Australia’s current Work and Holiday program allows foreign nationals to visit for up to one year, during which time they may study for up to four months and work for up to six months for an employer.
BAL Analysis: The Work and Holiday Visas provide an opportunity for employers with global programs to employ Australian, Luxembourg and San Marino nationals.
What is the change? The South Australian Government will introduce a contribution fee for families holding subclass 457 visas whose children attend public schools in South Australia. The proposed changes are similar to some other Australian states and territories that seek public education contributions.
The amount payable by the family will be means tested. A contribution fee will not be charged if the gross combined annual family income (primary visa holder and their spouse or partner) does not exceed A$57,000.
A family with one child attending a government school would not pay the full rate of the contribution fee until the gross combined annual family income is at least A$77,000. This threshold is increased by A$10,000 for each additional child. A 10 per cent discount will be applied where the family has more than one child attending a government school.
In exceptional circumstances, including hardship, a waiver of payment of the contribution fee is available.
If a subclass 457 visa holder residing in South Australia becomes an Australian permanent resident, they will be exempt from paying the school contribution fee.
BAL Analysis: The South Australian Government’s incoming education contribution fee for 457 visa holders will align the state with New South Wales, Western Australia and the Australian Capital Territory, which collect similar public education fees. It is anticipated that individuals who may be affected by these upcoming changes will now consider their eligibility to apply to become Australian permanent residents.
What is the change? The Australian Government has proposed a handful of reforms to the Work and Holiday (subclass 462) and Working Holiday (subclass 417) visa programmes, including taxing working holiday makers at a lower rate than was previously set in the 2015-16 budget.
What does the change mean? Under the changes, working holiday makers would pay less in taxes and a slightly lower application fee. Employers would be required to register with the Australian Tax Office (ATO), and employers with premises indifferent regions of Australia would be allowed to employ working holiday makers for a total of 12 months and a maximum of six months in each region.
Background: The changes stem from a commitment prior to the most recent federal election to review tax rates for working holiday makers by the end of 2016. Among the changes the Government has proposed:
Australian Treasurer Scott Morrison said in a statement the reforms are aimed at increasing “Australia’s attractiveness as a top destination for backpackers” while ensuring working holiday makers “fair tax on their earnings.”
BAL Analysis: The changes will generally benefit working holiday makers and may help Australia in recruiting more young people through the Work and Holiday and Working Holiday visa programmes. Affected employers would have to complete a one-off registration requirement with the ATO and may also benefit from changes to the mandatory work conditions imposed on Work and Holiday (subclass 462) and Working Holiday (subclass 417) visas.
All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The Australian Government is seeking public feedback on a proposal to develop a new visa for parents of Australian citizens, Australian permanent residents and eligible New Zealand citizens.
What does the change mean? The matters raised in the public submissions will assist the Australian Government in the finalisation of policy settings for the new visa. The new temporary parent visa is expected to become available to eligible applicants in July 2017.
Background: The invitation for comments on the proposed new temporary parent visa stems from a commitment that was made by the current Federal Government in the lead up to the most recent Australian federal election.
BAL Analysis: The introduction of a new temporary parent visa will provide a new visa option for many people who are parents of Australian citizens, permanent residents or eligible New Zealand citizens, and would like to visit family members in Australia for extended periods of time.
What is the change? The Australian Government will introduce changes to Australia’s temporary activity visa framework with a view to simplify the application process for a number of temporary visas. The changes will include the creation of a new consolidated sponsor class, the removal of some sponsorship and nomination application requirements, the repeal and consolidation of a number of visa subclasses, and the ability to lodge applications online.
Implementation time frame: The proposed changes, which are subject to approval by Australia’s Governor-General, will become effective as of 19 November 2016. Transitional arrangements, up until 19 May 2017, will be available for approved sponsors that received sponsorship approval prior to 19 November 2016 as a long stay activity, training and research, professional development, entertainment, special program or superyacht crew sponsor to utilise this sponsorship approval to sponsor a Training (subclass 407) or Temporary activity (subclass 408) visa applicant. From 19 May 2017, businesses will need to be approved as a Temporary Activities Sponsor if they wish to sponsor a Training (subclass 407) or Temporary Activity (subclass 408) visa applicant (where applicable).
Who is affected: Visa applicants and sponsors (where relevant) for the following temporary visa subclasses: Temporary Work (Long Stay Activity) (subclass 401) visa, Training and Research (subclass 402) visa, Special Program (subclass 416) visa, Temporary Work (Entertainment) (subclass 420) visa, Superyacht Crew (subclass 488) visa, Temporary Work (Short Stay Activity) (subclass 400) visa and the Temporary Work (International Relations) (subclass 403) visa.
Business impact: Effective from 19 November 2016, a new Temporary Activity (subclass 408) visa will replace the following temporary visa subclasses:
In addition, a new Training (subclass 407) visa will replace the Professional Development and Occupational Trainee streams of the current Training and Research (subclass 402) visa.
Consolidated sponsorship
A single Temporary Activities Sponsorship status will replace six of the current sponsorship types (long stay activity, training and research, professional development, special programme, entertainment, and superyacht crew).
Unless transitional arrangements apply, Training (subclass 407) visa applicants will need to be sponsored and nominated by a Temporary Activities Sponsor.
No requirement for a nomination application will be applicable for the Temporary Activity (subclass 408) visa and visa applicants will only need to be sponsored by a Temporary Activities Sponsor where:
Changes to other temporary activity visas
The existing Temporary Work (Short Stay Activity) (subclass 400) visa will be renamed the Temporary Work (Short Stay Specialist) (subclass 400) visa and will be applicable for visa applicants seeking to apply under the ‘highly specialised work’ and ‘Australia’s interests’ streams.
The Temporary Work (International Relations) (subclass 403) will also have the Seasonal Worker Programme (currently available under the Special Program (subclass 416) visa) added as a stream available for this visa subclass. This is in addition to the existing Government Agreement, Foreign Government Agency, Domestic Worker (Diplomatic or Consular) and the Privileges and Immunities streams.
Next steps: Businesses seeking to utilise the new Temporary Activity (subclass 408) and Training (subclass 407) visa subclasses post 18 May 2017 will need to apply to become an approved Temporary Activities sponsor. Transitional arrangements for a period of six months will be applicable to those sponsors approved prior to 19 November 2016 under the existing long stay activity, training and research, professional development, entertainment, special program and superyacht crew classes.
Legislation incorporating these reforms to Australia’s existing temporary activity is expected to be released in the coming months.
BAL Analysis: BAL welcomes the upcoming proposed changes to Australia’s temporary activity visa programs in an effort to reduce some of the red tape associated within the existing framework. The ability for all new Temporary Activity (subclass 408), Training (subclass 407) and Temporary Work (Short Stay Specialist) (subclass 400) visas to be lodged online will be an advantage to visa applicants. BAL will continue to closely monitor the release of legislation relating to these changes and update interested parties accordingly.
What is the change? The Australian Government has set its annual caps for non-contributory parent and other family visas.
What does the change mean? Australia will make a total of 1550 Parent (Migrant) (Class AX) and Aged Parent (Residence) (Class BP) visas available for visa grant in the financial year that began 1 July 2016. A total of 520 Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas will be allocated for visa grant in the current financial year.
Background: The caps set for the 2016-17 financial year for the visa classes listed above were the same as last year and nearly identical to 2014-2015.
* Parent (Migrant) (Class AX) and Aged Parent (Residence) (Class BP). ** Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU).
It should be noted that New Zealand citizens who are not normally included in Australia’s Migration Programme are included in the caps listed above.
BAL Analysis: The caps set for non-contributory parent visas and other family visa classes have changed very little since 1 July 2014. New applicants for a non-contributory parent visa can expect to wait upwards of 30 years (if not longer) before their application is released for final processing, whilst those seeking to apply for an aged dependent relative, remaining relative or carer visa can expect to wait upwards of 50 years (if no longer) before their application is released for final processing.
MARN: 9683856
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What is the change? Australia will soon provide a new visa pathway for foreign entrepreneurs through the Business Innovation and Investment Visa program.
What does the change mean? Beginning 10 September, foreign entrepreneurs under 55 years of age with competent English language skills and who undertake, or propose to undertake, a ‘complying entrepreneur activity’ in Australia will be able to seek an invitation to apply for a Business Innovation and Investment (Provisional) (subclass 188) visa.
Background: Turnbull announced that Australia would create an entrepreneur visa in an Innovation Statement delivered in December.
To be eligible, applicants must have plans for a complying entrepreneurial venture in Australia, secure AUD$200,000 worth of funding, be younger than 55, have competent English skills, own at least a 30 per cent interest in their venture and be nominated by a state or territory government. Third-party funding must come from federal agencies, state or territory governments, publicly funded research organizations or an investor registered as Venture Capital Limited Partnerships (VCLP) or Early Stage Venture Capital Limited Partnerships (ESVCLP). Ventures involving residential real estate, labour hire or the purchase of existing businesses will not be accepted.
Subclass 188 visa holders will be permitted to enter and remain in Australia for four years and three months from the date their visa is granted and must maintain a relationship with a nominating Australian state or territory. The subclass 188 visa will also provide primary visa holders (and their accompanying dependent family members) with an option to apply for the permanent Business Innovation and Investment subclass 888 visa if they have resided in Australia for at least two of the four years and can show that their venture has been a success, as measured by factors including business turnover, jobs created and the ability to secure financial backing.
BAL Analysis: The new visa pathway is part of a broader effort to invest in and promote innovation in Australia. The changes will provide new pathways for entrepreneurs and other foreign experts to work and reside in Australia.
About Berry Appleman & Leiden LLP Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from seven offices across the U.S. and from offices in Geneva, London, Melbourne, Rio de Janeiro, São Paulo, Shanghai, Singapore and Sydney. BAL manages global visa matters and customized application approaches for work permits, business visas, and residence permits in more than 100 countries. With a single cost center for worldwide operations, BAL offers centralized management with regional and local support for the complete spectrum of global immigration matters.
Source: Berry Appleman & Leiden LLP