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IMPACT – MEDIUM
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.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 9683856
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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
What is the change? The Australian Government has introduced a bill to the Federal Parliament that would make it more cumbersome for Australian citizens and permanent residents to sponsor family members on visas.
What does the change mean? Among other changes, the bill, if passed, would introduce character checks for all sponsors of family visa applicants and require approval of family sponsors before relevant visa applications can be lodged.
Background: The Turnbull Government introduced the Migration Amendment (Family Violence and Other Measures) Bill 2016 on 1 September.
Among other changes, the bill would introduce character checks for sponsors of family visa applicants, require the approval of family sponsors before relevant visa applications can be lodged, apply new obligations on people who are approved as family sponsors, and permit the refusal of sponsorship applications where abuse of the program is evident, especially in cases involving family violence.
The changes would make it more difficult to sponsor family members. Currently, for example, police checks of family sponsors of family visa applications are only required in cases involving children under the age of 18. Additionally, the requirement that family sponsors be approved before the lodgement of visa applications could slow processing. Currently, assessment of the sponsorship requirements are conducted at the same time as visa applications.
The legislation is written such that the changes would apply first to sponsors of partner visas and eventually to all sponsored family visas.
BAL Analysis: The Government said in a statement that the proposed partner and family visa changes would help address problems of family violence. Some of the requirements will make it more difficult to sponsor family members and are likely to contribute to the lengthy processing times already associated with these types of visas.
MARN: 0850984
About Berry Appleman & Leiden LLP Founded in 1980, Berry Appleman & Leiden (BAL) provides comprehensive global immigration services from six offices across the U.S. and from offices in Geneva, London, 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.
AUSTRALIA (31 August 2016) – High Court ruling imposes visa requirement for offshore oil and gas workers
What is the change? Australia’s High Court has ruled against the Australian Government in its attempts to exempt foreign nationals working on vessels in the offshore oil and gas industry from visa requirements.
What does the change mean? Effective immediately, foreign nationals working on vessels must meet the same visa requirements as those working on fixed, offshore installations. Affected workers who do not obtain the appropriate visa will be considered to be working unlawfully in Australia.
Background: The High Court’s ruling Wednesday ends years of maneuvering on whether the country should require visas for foreign nationals working on vessels in the offshore oil and gas industry. The issue dates to the 2013 Offshore Resources Activity Act, which effectively required foreign nationals to hold permanent visas to work in the industry. In March of 2015, a federal court invalidated the Government’s attempts to “except” offshore oil and gas workers from the law, temporarily throwing the industry into flux. The Government subsequently took steps to protect the work rights of affected foreign nationals.
In December, the Minister issued a Determination prescribing Subclass 400 and Subclass 457 visas as the appropriate temporary visas for foreign nationals working in the industry and exempting vessels from legislation designed to bring offshore operations into Australia’s migration zone. The Court said in its ruling Wednesday the December Determination represented the “entire negation” of Parliament’s intentions, concluding that the Determination is invalid. The ruling thus has the effect of pulling offshore oil and gas vessels into Australia’s migration zone and subjecting foreign nationals working on vessels to the same visa requirements as foreign workers on fixed installations. Those who do not obtain the appropriate visa will be considered to be working unlawfully in Australia.
BAL Analysis: The Court’s ruling has the effect of imposing visa requirements on foreign nationals working on offshore vessels in Australia’s oil and gas industry. Affected workers must obtain a Subclass 400 or Subclass 457 visa. Employers in need of assistance securing the appropriate visas for their workers should contact their BAL professional as soon as possible.
What is the change? Department of Immigration and Border Protection (DIBP) workers are planning a 24-hour stoppage on Friday 12 August at international airports, ports and other sites. Due to shift arrangements, this action may affect some late flights on the evening of 11 August and early flights on the morning of 13 August.
BAL Analysis: Government officials said they are working to minimise the impact on the travelling public, but that delays should be expected. Travellers at affected airports are advised to arrive early and proceed directly to immigration and customs after checking in.
What is the change? Processing times for Subclass 457 visas are averaging eight to ten weeks, a time frame that is within the advertised range but nonetheless marks a significant increase from past years.
What does the change mean? Businesses should anticipate longer-than-average processing and submit 457 petitions earlier than usual if necessary.
Background: Processing times fluctuate regularly, and the current processing times are still within the range advertised by the Department of Immigration and Border Protection (two months for low-risk applications, three months for high-risk applications). Processing times have increased compared with years past, however, perhaps due in part to more complicated integrity requirements and reduced staffing levels. Accredited sponsors will continue to receive streamlined processing.
BAL Analysis: The DIBP has indicated that processing times are not likely to improve significantly in the near future. Sponsoring employers should take note of the trend and plan accordingly.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com
What is the change? Papua New Guinea has reinstated visas on arrival for Australia citizens visiting for tourism purposes after a two-year ban.
What does the change mean? Australian passport holders visiting Papua New Guinea for tourism purposes only may apply for a visa upon arrival at designated airports for stays of up to 30 days (non-extendable).
Background: Papua New Guinea imposed the ban on visas on arrival for Australian travellers in March 2014 in response to Australia’s refusal to allow reciprocal visas on arrival to Papua New Guinea citizens, who are still required to obtain visas before travelling to Australia. The ban included business and tourist travellers.
Last month, the Papua New Guinea Immigration and Citizenship Services Authority issued a circular reinstating visas on arrival for tourists, but did not mention business travellers. Australian visitors travelling for tourist purposes may obtain a visa on arrival at Jacksons International, Gurney, Mount Hagen and Tokua Airports upon showing a passport valid for more than six months beyond the date of entry, a return or onward ticket and evidence of sufficient funds. The visa on arrival is valid for 30 days and cannot be extended.
BAL Analysis: Australian business travellers are reminded that they are still required to obtain visas before travelling to Papua New Guinea.
What is the change? China has become a full signatory of the Washington Accord, a development that will make it more straightforward for professional engineers with an accredited qualification in China to obtain a Migration Skills Assessment outcome through Engineers Australia.
What does the change mean? The Washington Accord is an international agreement among the organisations responsible for accrediting engineering degree programs. For Australian migration purposes, obtaining a positive Migration Skills Assessment outcome is significantly easier for engineers from countries that are signatories to the Washington Accord or other specified international agreements. The change will ultimately make it easier for professional engineers who obtain an accredited engineering qualification in China to seek to apply for a number of different Australian visa subclasses.
Background: China, represented by the Chinese Association for Science and Technology (CAST), joins Australia, Canada, Hong Kong, India, Ireland, Japan, Malaysia, New Zealand, Russia, Singapore, South Africa, South Korea, Sri Lanka, Taiwan, Turkey, the United Kingdom and the United States as a signatory of the Washington Accord.
In Australia, signatories to the accord (or to the related Sydney Accord or Dublin Accord) can obtain a positive Migration Skills Assessment outcome without having to compile a Competency Demonstration Report, an onerous process that involves providing documentary evidence of both core engineering knowledge and demonstrated application of skills in the nominated occupation.
BAL Analysis: While the accord only applies to engineers who complete the requisite qualifications this year or after, it is a welcome development for Australian employers and engineers holding a Chinese accredited engineering qualification. Irish employers may also be able to rely on the accord for purposes of supporting foreign engineering qualifications.
What is the change? Australia has adjusted its Consolidated Sponsored Occupation List (CSOL), used for a number of employer-sponsored and State/Territory nominated visas. Officials also updated the Skilled Occupation List (SOL) for independent or family-sponsored skilled visa applicants.
What does the change mean? Among the occupations that were moved from the SOL to the CSOL are Mining Engineers, Metallurgists, Environmental Health Officers, Occupational Health and Safety Advisers, Dental Hygienists, Dental Prosthetists, Dental Technicians and Dental Therapists. Orthotists or Prosthetists and Audiologists were added to the SOL.
Background: The CSOL provides a list of occupations that can be filled by employer-sponsored visa applicants, while the SOL provides a list of jobs available to skilled migrants who are applying for visas independent of sponsorship from a company or State/Territory Government. The lists are adjusted annually to reflect changing demands in the Australian labour market. The changes to the CSOL and SOL were made through a legislative instrument earlier this week and are set to take effect 1 July.
BAL Analysis: From 1 July 2016, Orthotists or Prosthetists and Audiologists may seek to migrate to Australia independent of employer sponsorship or nomination by a State/Territory Government. Yearly quotas for each of the occupations on the SOL will become available at a later date. Individuals seeking to apply for an independent or family-sponsored points-tested visa, and who are affected by their nominated occupation moving from the SOL to the CSOL, will either need to be invited to apply before 1 July 2016, or consider options that may be available to them through employer-sponsored visa subclasses or by way of a State/Territory nomination.
What is the change? Australia and Singapore have entered into an agreement for a reciprocal Work and Holiday visa programme. Australia’s Work and Holiday programme for Israeli nationals, agreed to in 2014, will commence as of 1 June 2016.
What does the change mean? Beginning 1 June, 500 Work and Holiday visas will be available to Australian and Israeli nationals, ages 18 to 30, to travel, live, work and study in each other’s countries. Australia and Singapore agreed to a similar arrangement, but no implementation date has been announced.
Background: Australia has Work and Holiday visa arrangements with a number of countries, including Argentina, Bangladesh, Chile, China, Indonesia, Malaysia, Poland, Portugal, Slovakia, Slovenia, Spain, Thailand, Turkey, the United States and Uruguay. Australia signed an agreement with Vietnam last year and with Hungary in February 2016, neither programme has taken effect yet.
BAL Analysis: The Work and Holiday program is very popular, and interested applicants should apply as soon as the application period opens.
What is the change? Newly adopted legislation makes several changes to the Subclass 457 visa programme, including expressly barring discriminatory recruitment practices, requiring applicants to provide nomination details when applying for visas online and waiving English language proficiency requirements in certain instances.
What does the change mean? Standard business sponsors will be required to state in writing that they will not engage in discriminatory recruiting practices based on immigration status or citizenship. Visa applicants applying online will be required to provide nomination details of a sponsor or proposed sponsor. Applicants already required to demonstrate English proficiency for professional registration or licensing will not be required to provide evidence of English proficiency in the visa process.
Background: The anti-discrimination rule was recommended in the Independent Review into Integrity in the 457 Programme as a way to “address a community concern that some employers may be relying on the Subclass 457 programme to employ foreign workers without having regard to the availability of local labour,” according to an explanatory statement accompanying the legislation. Sponsors already must attest that they have a “strong record of, or a demonstrated commitment to employing local labour and non-discriminatory employment practices.” The legislative change aims to add teeth to nondiscrimination policies, however, and provides officials with an avenue to take action against sponsors who do not meet their obligations.
The other changes are designed to streamline the application process. The online application changes should make processing easier by automatically linking relevant nomination details with applications from the time an application is lodged. The English proficiency provisions, meanwhile, will eliminate one step in the process for applicants who previously had to establish English proficiency both for purposes of obtaining a visa and professional registration or licensing. The Government says the change will in no way “adversely impact English proficiency levels” required by the Subclass 457 visa programme.
BAL Analysis: The changes highlight Australia’s ongoing efforts to overhaul the Subclass 457 visa programme, and reflect two of the Government’s broader goals: protecting the Australian labour market and streamlining the application process. The anti-discrimination policy will force sponsors to acknowledge in writing that they will not discriminate against local workers in their recruitment practices. The online application and English proficiency changes may make the application process smoother in certain instances.