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IMPACT – MEDIUM
What is the change? Australia will expand the benefits of the Working Holiday (Subclass 417) and Work and Holiday (Subclass 462) visa programs for key industries in northern Australia.
What does the change mean? Visa holders under either program may extend their employment with a single employer beyond six months for a maximum of 12 months. Industries include mining, tourism and hospitality, agriculture, construction, and aged and disability care.
Background: The expansion of the two programs is intended to develop northern Australia and help employers fill seasonal labour demands in key sectors. The geographical areas are defined by postal codes and cover all of the Northern Territory and portions of Queensland and Western Australia that are north of the Tropic of Capricorn.
Eligible jobs in the mining sector include roles in oil and gas extraction; coal, metal ore and non-metallic mineral mining and quarrying; mining support services; and others. Other sectors include agriculture (designated jobs in plant and animal cultivation, tree farming and felling, and fishing and pearl culturing); construction (residential and non-residential construction, engineering and other services); tourism (hospitality and museum workers, conference organizers, and others); and aged and disability care services.
A full list of the postal codes, industries and job titles covered by the new rule can be found on the Department of Immigration and Border Protection’s website.
BAL Analysis: The expanded employment under the Work and Holiday and Working Holiday programs provide greater continuity for employers in designated areas who wish to retain foreign nationals beyond six months.
This alert has been provided by BAL Australia. For additional information, please contact australia@bal.com.
MARN: 9683856
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? A program to match data records between the Department of Immigration and Border Protection and the Australian Taxation Office has been published in the Government Gazette.
What does the change mean? The records of approximately 1 million visa holders – including names, visa status, sponsor details (457 visas), and other information – will be shared between the DIBP and the ATO.
Background: According to the Gazetted notice, the records the DIBP will provide to the ATO include the following information:
The data matching program will cover the records of approximately 1 million individuals during financial years 2013-2014, 2014-2015, 2015-2016 and 2016-2017. The ATO will use the program to make sure visa holders, sponsors and migration agents are meeting their obligations, as well as to identify fraud, improve voluntary compliance and test existing compliance models. The program complies with standards to protect privacy.
BAL Analysis: The Australian Government is increasing its efforts to track compliance with tax laws through immigration records. All sponsors should conduct internal compliance checks.
What is the change? The Australian Government has introduced a bill that would make it a criminal offence for visa sponsors to accept payments for the purpose of securing a migration outcome.
What does the change mean? The bill would punish sponsors who improperly accept or solicit payment with fines and up to two years’ imprisonment. Civil penalties may also apply, and the bill would give the Government new discretionary powers to cancel visas in cases where the law is violated.
Background: In March, the Australian Government announced its support for a host of reforms to the 457 programme, including a proposal to establish “robust” penalties for sponsors who accept payments to help secure migration outcomes. The bill the Government introduced this month covers not just Subclass 457 visas, but all temporary and permanent work visas. It is designed to cut down on the exploitation of migrants and help ensure that the Australian labour market is not undercut by low wages. While the bill makes it clear that accepting payments for helping secure a migration outcome is not permitted, it does allow for “payment of a reasonable amount for a professional service” given to those applying for visas.
BAL Analysis: The Australian Government has gone about reforming the 457 programme in a way that is intended to make it easier for employers to find high-skilled foreign employees, while simultaneously cracking down on employers who abuse the programme. The recent bill is another sign of the Government’s effort to root out abuse in the 457 and other visa programmes.
What is the change? Department of Immigration and Border Protection (DIBP) workers have gone on strike at airports in Cairns, Darwin and Perth. They are planning to strike at airports in Brisbane, Melbourne, Sydney and other locations beginning next week.
What does the change mean? Travellers using any of the affected airports should expect delays and possible reductions in immigration services.
Background: The strikes, known as “protected industrial actions,” follow work stoppages in June and July. Workers are striking for better pay and conditions.
The Community and Public Sector Union indicated that workers will strike for four-hour time periods in both the morning and evening at airports in Cairns, Darwin and Perth through the end of the week. The union said the “rolling strike action” will continue next week at Sydney, Melbourne, Brisbane and other international airports on Monday, 21 September. A schedule has been posted here.
Government officials said the strike will not jeopardize security but that delays should be expected.
BAL Analysis: Travellers are advised to arrive early in accordance with guidelines from their airline and to proceed directly to immigration and customs after checking in. While DIBP says it is working to minimise the impact, the strikes are expected to cause slow-downs in service. Business people travelling to or from Australia through an affected airport should prepare for the likelihood of delays.
What is the change? Australia has added China to the list of countries whose citizens are eligible for Work and Holiday Visas.
What does the change mean? Chinese applicants must apply in-person at one of three designated locations in Beijing, Guangzhou or Shanghai. Online and mailed applications will not be accepted.
Background: According to a legislative instrument adding China to the eligible countries, applicants holding a passport from the People’s Republic of China will not be required to provide government support for grant of the visa. As part of the eligibility requirements for this visa, Chinese nationals will need to hold tertiary qualifications, or have successfully completed at least two years of undergraduate university study, and must also provide evidence that they have a level of English language ability assessed as at least functional.
Work and Holiday Visas are available to a small number of young adults ages 18 to 30 from designated countries, allowing them to work and travel in Australia for up to one year. Australia currently offers Work and Holiday Visas to citizens of Argentina, Bangladesh, Chile, Indonesia, Malaysia, Poland, Portugal, Spain, Thailand, Turkey, the United States and Uruguay.
BAL Analysis: The Work and Holiday program is very popular and is likely to fill up quickly. Chinese nationals are encouraged to apply as early as possible once the program opens as there will be an annual limit of 5000 places for Chinese participants.
IMPACT – LOW
What is the change? Australia will stop issuing visa labels 1 September.
What does the change mean? Visa holders can check their visa status through Australia’s Visa Entitlement Verification Online (VEVO) service or its myVEVO mobile app. The Department of Immigration and Border Protection (DIBP) and airline staff already use electronic systems rather than visa labels to check whether travellers have valid visas to enter Australia.
Background: Visa labels are documents that are placed in a passport to provide information about a foreign national’s visa validity. Even before the most recent change, demand for visa labels had decreased by 95 per cent from 2011, according to Government data. “The practice of obtaining visa labels often resulted in unnecessary expenses, delays and inconvenience for clients and stakeholders,” the DIBP said in a statement. “Offering these services digitally is an efficient, economical and sustainable solution.”
BAL Analysis: Beginning 1 September, visa holders will no longer be able to request visa labels from the Australian Government. Travellers can use the VEVO service to track their visa status and, assuming they have valid visas, will be able to travel to Australia by showing their passport or ImmiCard.
The number of E-3 visas the U.S. issues to Australian nationals has soared in recent years – and certain E-3 applications appear to be drawing more scrutiny.
E-3 visas are reserved specifically for Australian nationals filling specialty occupation roles. The number of E-3 visas the State Department issued rose by 79 percent, from 4,942 in the 2011 fiscal year to 8,834 in 2014. The number of visas denied has also gone up, with denial rates fluctuating between 9.4 and 11.4 percent since 2010.
* Includes E-3, E-3D and E-3R visas.
Though denial rates have not changed dramatically, BAL has seen anecdotal evidence of a trend toward increasing scrutiny of certain E-3 applications.
In particular, U.S. consulate officials in Australia seem to be more closely scrutinizing the question of what constitutes a “specialty occupation,” a requirement that must be met for a successful E-3 application. Applications listing general positions in the administrative, general or operations manager classification may face greater scrutiny, especially where the applicant’s role does not meet the “specialty occupation” threshold. Start-up organizations in which applicants sometimes sponsor each other in managerial level roles also appear to be drawing greater scrutiny.
With the jump in E-3 applications in recent years, it is possible that the annual E-3 cap of 10,500 visas could be reached in the not-too-distant future. It should be noted that the cap applies only to principal E-3 applications, and does not include dependent (E-3D) or renewal (E-3R) applications.
BAL Analysis: BAL will continue to track the increase in E-3 visa applications, including whether the number of annual applications approaches the 10,500 cap. Those applying for E-3 visas should ensure that they will fill a position that qualifies as a “specialty occupation,” a requirement of the E-3 visa that is seemingly facing increasing scrutiny at U.S. consulates abroad. Applicants should also prepare for the possibility that applications may be delayed or denied if officials determine that the position does not meet the appropriate threshold. Contact your BAL attorney with questions regarding job classifications, specialty occupations or any other aspect of the E-3 visa application.
What is the change? The Australian Department of Immigration and Border Protection is seeking responses to a proposal to require subclass 457 visa sponsors to contribute annual payments to a fund to train Australian nationals for the workforce.
What does the change mean? Annual training fund contributions would replace the current training benchmarks, which the Government has deemed ineffective. Under the current proposal, initial contributions would range from $400 to $800 for each 457 holder, depending on the size of the company.
Background: The Government endorsed the idea of replacing training benchmarks with an annual training fund contribution in March, when it announced its support for a host of Subclass 457 reforms.
A Government report on the proposal says the training fund would be used in a large part to reach out to groups underrepresented in the job market, including youth, Indigenous Australians and those living in rural areas. The fund would also target sectors of the economy that traditionally employ high numbers of 457 holders, including nursing and IT.
The Government is seeking responses, both in terms of the proposal’s administration (e.g., how to limit costs to business while ensuring quality training, whether contributions should be capped and whether any exemptions are warranted) and its investment focus (e.g., whether the proposed investment priorities are appropriate, how the success of the programme should be measured and how an independent governance board should be structured).
BAL Analysis: Those wishing to respond to the Government’s proposal are urged to do so as soon as possible. BAL will continue following the development and eventual implementation of a training fund contribution programme for 457 visa sponsors.
IMPACT – HIGH
What is the change? The Australian Taxation Office (ATO) will soon begin collecting names, addresses and other information from visa holders, sponsors and migration agents, as the Australian Government looks to root out both tax and immigration fraud. Data will be collected from the Department of Immigration and Border Protection (DIBP) for the 2013-14 through 2016-17 financial years.
What does the change mean? The ATO will compare information submitted for tax purposes to information submitted for visa purposes. Companies sponsoring subclass 457 visa holders are advised to ensure they are paying the ‘guaranteed earnings’ as noted in the 457 visa approval, along with the correct superannuation payments (where applicable).
Background: Notification of the data-matching programme was published in the Commonwealth government notices gazette this week. The stated purpose of the programme is to “ensure that taxpayers are correctly meeting their taxation obligations” including “registration, lodgment, reporting and payment responsibilities.”
A similar programme was launched in 2011, and the Government said data collected in the three-year period beginning 1 July of that year indicate an “elevated level of risk” of tax problems among visa holders. Data to be collected under the new programme will include address history for visa applicants and sponsors; contact history for visa applicants and sponsors; all visa grants; names, contact information and address history of migration agents; all international travel undertaken by visa holders; subclass 457 sponsor details; and education providers for those on student visas.
BAL Analysis: The data-matching programme is consistent with the Australian Government’s efforts in recent years and months to crack down on both tax and visa abuse. The Government implemented a similar programme in 2011, and in March announced its support for increased sharing of information between the ATO and DIPB in the subclass 457 visa programme. Companies should ensure they are paying the ‘guaranteed earnings’ required under the 457 programme, and should be careful that information on future visa applications is accurate. Contact your BAL migration agent with any questions about staying in compliance.
What is the change? Australia’s Department of Immigration and Border Protection (DIBP) workers are planning to strike Monday, a move that could lead to significant delays at airports and slow-downs in visa and immigration services.
What does the change mean? The strike could delay international travellers at a number of airports and may reduce immigration services, including visa processing.
Background: Workers are striking for better pay and conditions. The action planned for Monday follows a series of work stoppages in June.
The Government and the union representing the workers has said the strike – officially dubbed a “protected industrial action” – will not jeopardize security but that delays should be expected. The DIBP suggests that passengers with international flights Monday arrive early, check-in and promptly proceed to immigration and customs clearance.
Airports expected to be affected include those in Adelaide, Brisbane, Cairns, Darwin, Gold Coast, Melbourne, Perth and Sydney.
BAL Analysis: While DIBP says it is working “to minimise impacts on operations,” the strike is nonetheless expected to cause bottlenecks in service. Business people travelling to or from Australia on Monday should brace for the possibility of significant delays.