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IMPACT – HIGH
What is the change? Australia has changed its English-language testing requirements for primary Subclass 457 visa applicants, altering the required minimum scores and permitting more providers to administer tests. Changes have also been made to the English-language requirements for the Recognised Graduate (Subclass 476) and Temporary Graduate (Subclass 485) visa programmes.
What does the change mean? The changes represent a more flexible approach in dealing with English-language requirements, a change that will be welcomed by employers and visa applicants for these subclasses.
Business impact: The changes should have a positive impact on business, as high-skilled foreign nationals will have more options for satisfying English-language requirements before beginning work in Australia.
Background: The changes are part of Australia’s efforts to overhaul the Subclass 457 visa programme.
As of 18 April, an average score of 5 across the four competencies of the International English Language Testing System (IELTS) – listening, reading, speaking and writing – will count as passing. Under old rules, a score of at least 5 in each category was required. A minimum score of 4.5 in each of the categories will still be mandated.
Besides the IELTS test, authorities will also accept the Occupational English Test (OET), the Test of English as a Foreign Language internet-based test (TOEFL iBT), the Pearson Test of English Academic (PTE) and the Cambridge English: Advanced test (CAE) (for tests undertaken after 1 January 2015). Passing scores are as follows:
Source: Australian Government.
The Australian Government will exempt Subclass 457 applicants who can prove they have five cumulative years of full-time study at the secondary or tertiary level where instruction was delivered in English, whereas previously applicants had to demonstrate five consecutive years of full-time study. Those who will earn a base salary of A$96,400 per year will also be exempted from formal English-language testing.
Other changes that became effective 18 April 2015 touched on the Recognised Graduate visa (Subclass 476) and Temporary Graduate visa (Subclass 485) programmes. In these two subclasses, an average IELTS score of 6 (or the equivalent on another acceptable test) across all four competencies will count as passing, so long as the applicant does not score lower than IELTS 5 (or the equivalent on another acceptable test) on any individual competency. Previously, applicants had to score at least an IELTS 6 in each category.
BAL Analysis: The new testing requirements will provide greater flexibility for those migrating to Australia on Subclass 457 and other visas. The changes to the testing programme – along with the broader Subclass 457 overhaul – are welcome news to Australian employers.
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? Employers sponsoring workers in the Subclass 457 visa category will soon be given 28 calendar days to report certain status changes, such as the end of the visa worker’s employment or changes to his or her work duties. Currently, employers are only given 10 working days.
What does the change mean? The change was one of several the Australian Government said it would endorse when it announced its support for a number of recommendations an independent committee made to overhaul the 457 visa category.
Background: Earlier this month, the Australian Government announced its support for a number of changes that had been recommended to overhaul the Subclass 457 visa programme. The changes include altering English-language testing requirements, changing training programmes, re-evaluating visa processing and fees and stricter penalties for abuse.
The 28-day notification period, which was recommended by the committee in 2014, provides employers sponsoring 457 visa holders more leeway and flexibility when it comes to notifying the Government of certain changes to the visa holder’s status. Changes that require notification – “notifiable events” – include the end of the visa holder’s employment, changes in work duties, payment of a visa holder’s return travel costs and, in some cases, changes in the company’s corporate structure.
BAL Analysis: The change is a positive development for 457 visa sponsors, who, up to this point, have been given a short window of time to report “notifiable events” to the authorities.
IMPACT – MEDIUM
What is the change? Assistant Minister for Immigration and Border Protection Michaelia Cash issued a determination Friday to restore work rights to hundreds of non-Australian citizens working in the country’s offshore oil and gas industry.
What does the change mean? Cash’s move came a day after a Federal Court invalidated a previous attempt to exempt certain non-Australian workers from a law that effectively required them to obtain permanent visas in order to work on oil and gas rigs.
Background: A three-judge Federal Court panel issued a ruling Thursday invalidating a determination Cash issued in 2014 to “except” offshore oil and gas workers from visa requirements imposed by the Labor government before the current government gained control. The Court said Cash had exceeded her authority by reversing “Parliament’s desire and intention” to require non-citizens to obtain permanent visas in order to work on offshore oil and gas rigs. Friday’s determination is designed to restore work rights to non-Australians whose status was thrown into uncertainty following the ruling. The determination will have the effect of allowing non-Australian citizens to lawfully work on offshore rigs that are fixed to the seabed.
BAL Analysis: The Court’s ruling left the status of the workers and offshore oil and gas industry in flux. The new determination, however, may restore stability. BAL will continue following the situation and update clients accordingly.
IMPACT – LOW
What is the change? Australia will add Sponsored Family Visitor Visas to its biometrics programme on 6 May.
What does the change mean? Affected applicants will have to visit an Australian Visa Application Centre or Australian Biometrics Collection Centre to have biometrics (fingerprints and facial image) taken after they submit visa applications.
Background: Australia’s biometrics programme only covers designated subclasses of visas and only covers applicants from designated countries. Even after Sponsored Family Visitor Visas are added to the programme, the visa applications will continue to be lodged and processed in Australia. However, biometrics collection will be able to be completed at the closest Australian Visa Application Centres or Australian Biometrics Collection Centres abroad.
The biometrics programme covers a number of subclasses of visas in the Permanent Family, Temporary Family, Visitor and Student visa categories. The countries covered by the programme are:
Applicants filing applications from the countries above will be required to have biometrics taken regardless of nationality.
BAL Analysis: Once implemented, applicants for Sponsored Family Visitor Visas from countries covered by the biometrics programme will have to leave additional time in the visa application process in order to meet all requirements.
What is the change? The Australian Government announced its support for nearly all of the changes that had been recommended to overhaul the Subclass 457 visa programme.
What does the change mean? The Government endorsed changes that touch on English-language testing, training programmes, fees, processing and efforts to crack down on abuse. The Government declined to abolish labour market testing, but officials are likely to consider ways to streamline the process.
Background: In September, a committee published a report recommending sweeping changes to the Subclass 457 programme. On Wednesday, the Government announced its support for a strong majority of the committee’s recommendations. The changes the Government support cover a number of areas, including:
The only recommendation the Government rejected was one to consider expanding the list of countries whose nationals are not subject to English-language testing. The Government took note of, but did not explicitly support, a recommendation to abolish employer-conducted labour market testing. The Government is likely to consider ways to reduce the red tape involved in the current labour market testing process, however.
BAL Analysis: Overall, the Government’s support for a number of changes to the 457 scheme is welcome news to employers who participate in the programme. The changes are designed to make it easier for employers to find high-skilled foreign employees, while simultaneously cracking down on employers who abuse the programme.
Options for residency could be limited by the requirement that subclass 457 visa holders work for a minimum of two years in Australia before being eligible for the Employer Nomination Scheme or Regional Sponsored Migration Scheme. The change, when implemented, will have a negative impact on some foreign nationals.
What is the change? Australia will increase the number of Seasonal Worker Program visas it makes available in the 2015-16 fiscal year. The number will increase from 3,250 to 4,250.
What does the change mean? Farmers and other employers will be able to employ more foreign workers from the Pacific and Timor-Leste.
Background: The Seasonal Worker Program allows guest workers to come to Australia from the Pacific or Timor-Leste for up to six months for seasonal jobs in agriculture and a limited number of other industries. In the past, the program was hindered by labour market testing requirements and labour caps on specific areas of agriculture, such as horticulture, sugarcane and cotton farming. The sector-specific caps have been lifted, however, and now the overall cap is set to increase as well. The program is available to nationals of Kiribati, Nauru, Papua New Guinea, Samoa, the Solomon Islands, Timor-Leste, Tonga, Tuvalu and Vanuatu.
BAL Analysis: The changes to the Seasonal Worker Program, including eliminating caps on specific areas of farming and increasing the overall cap, should help farmers and other Australian employers meet their business needs.
What is the change? U.S. citizens and permanent residents needing an FBI clearance for an Australian visa can now use select FBI-approved channelers to obtain clearance.
What does the change mean? The change could save significant time in the visa-application process.
Background: Foreign nationals often need police clearances in order to obtain certain subclasses of Australian visas. When police clearances are required as part of the visa application process, foreign nationals need to obtain the relevant clearances for those countries they have lived in for at least 12 months in the past 10 years.
Australia’s Department of Immigration and Border Protection recently began accepting clearances from the three FBI-approved channelers, who are able to expedite the process by submitting the applicant’s information to the FBI and obtaining the clearance from the FBI. In some cases non-U.S. nationals who have lived in the U.S. will require FBI clearance for an Australian visa. However, FBI-approved channelers are only permitted to process requests from U.S. citizens and permanent residents.
BAL Analysis: Using an FBI-approved channeler could significantly reduce the time it takes to receive necessary FBI clearance when applying for a visa. Visa applicants should contact their local BAL attorney if they have any questions about the process.
What is the change? Australian authorities raided the offices of a major mining and infrastructure firm this week, suspecting widespread visa fraud.
What does the change mean? The raids are the latest sign that the Australian Government is growing increasingly serious about Subclass 457 sponsorship violations. Employers should be vigilant to ensure they are in compliance with all 457 sponsorship requirements.
Background: Officials raided the offices of Murphy Pipe and Civil, which authorities suspect helped dozens of foreign workers fraudulently obtain 457 visas. BAL reported last week that Australia has seen a string of cases involving employers alleged to have violated 457 sponsorship requirements. In Melbourne, a popular restaurant lost its right to recruit foreign workers for five years after being cited for 457 sponsorship violations. In Sydney, a restaurant and its owner faced penalties after being found to have underpaid a South Korean cook by more than A$50 000 over a 13-month period. And work at Manildra Group’s ethanol plant in Bomaderry was stopped last week after labour union leaders alleged incidents of Subclass 457 visa abuse.
BAL Analysis: The recent focus on Subclass 457 violations is a reminder of the importance of complying with visa guidelines. Penalties can be harsh and may include fines and sanctions. Contact a BAL Registered Migration Agent about taking the necessary measures to stay in compliance with Subclass 457 requirements.
What is the change? A popular restaurant in Melbourne has lost its right to recruit foreign workers for five years after being cited for a number of Subclass 457 sponsorship violations. The incident is one in a string of cases where employers have landed themselves in trouble for 457 sponsorship violations – and the Australian Government has signalled it is getting more serious about 457 sponsorship infractions.
What does the change mean? Employers should be vigilant to ensure that they are in compliance with all 457 sponsorship requirements.
Background: Australia’s Subclass 457 visa allows skilled workers to enter and work in Australia for up to four years. Employers participating in the 457 programme must meet a number of requirements, including minimum salary and labour market testing, and satisfy industrial relations regulations.
On 27 January, Australian officials announced that an Indian restaurant in Melbourne had lost its right to sponsor Subclass 457 visas and would be ineligible to recruit foreign workers under the programme for five years. Over time, the restaurant had underpaid employees, failed to keep proper records and provided false or misleading information, according to a statement from Assistant Minister for Immigration and Border Protection Michaelia Cash.
The statement said the number of employers sanctioned for 457 violations rose 68 per cent in the 2013-14 fiscal year, which ended 30 June 2014. The Department of Immigration and Border Protection “is constantly monitoring 457 sponsors to ensure they are operating appropriately,” Cash said in the statement. “Businesses acting in good faith have nothing to fear, but we want to send a strong message that if you breach your obligations, you can expect to face the consequences, including fines and cancellation of your sponsorship.”
The Melbourne case is not the only one of its kind. A Sydney restaurant was recently found to have underpaid a South Korean cook by more than A$50 000. The restaurant agreed to pay all outstanding wages, provide a written apology, publicize its “sincere regret” in a local newspaper, and donate A$1000 to the NSW Working Women’s Centre toward education of workplace obligations and rights.
In another case, work at Manildra Group’s Ethanol Plant in Bomaderry was stopped last week after labour union leaders alleged incidents of Subclass 457 visa abuse. Another employer is facing legal action over allegations that he paid an employee on a 417 visa less than A$2 an hour for her work in Tasmania.
BAL Analysis: The Australian Government’s recent focus on Subclass 457 and other visa violations is a reminder of the importance of complying with all visa guidelines. Penalties can be harsh and may include fines and sanctions. Contact a BAL Migration Agent if you have any questions about staying in compliance with Subclass 457 or other visa requirements.
What is the change? The Japan-Australia Economic Partnership Agreement will go into effect 15 January.
What does the change mean? Business visitors, intra-corporate transferees, contractual service providers, and investors who are nationals of Australia or Japan will have greater access to each other’s countries. JAEPA will also end labour market testing in Australia for Japanese nationals, permanent residents or employees transferring to an Australian branch of a Japanese company that is being nominated under the 457 programme.
Background: Australian and Japanese government officials “exchanged notes” in December, signifying that all domestic processes related to the economic agreement had been completed and setting the stage for the agreement to go into effect.
JAEPA follows the implementation of a Korea-Australia Free Trade Agreement in December. Australia has also completed negotiations with China on a free trade agreement between those two countries. JAEPA includes specific commitments for Australia and Japan related to the movement of natural persons.
Australia’s commitments include providing stays of up to 90 days for Japanese business visitors, six months for Japanese service sellers, up to four years for Japanese intra-corporate transferee executives or senior managers, up to two years for Japanese intra-corporate transferee professionals or trade specialists, up to one year for Japanese contractual service suppliers, and up to two years for Japanese investors. Australia is also required to provide the right of entry, stay and work for spouses and dependants of Japanese business people or investors for a period of time equal to that of the business person or investor’s stay.
The agreement ends labour market testing for Japanese nationals, permanent residents and employees transferring to an Australian branch of a Japanese company that is nominated under Australia’s 457 programme.
Japan’s specific commitments include providing stays of up to 90 days for short-term Australian business visitors; and stays of one or three years for Australian intra-corporate transferees, Australian professional service providers, Australian nationals engaging in business activities requiring advanced or technological knowledge, and Australian investors.
Japan is also required to provide the right of entry and stay and work for spouses and dependants of Australian business people or investors. Spouses who have been granted entry and temporary stay under the agreement can have their residence status changed so that they are permitted to work, subject to the approval of the Japanese government.
BAL Analysis: JAEPA represents an easing of barriers to entry across almost all categories of business visitors, workers and investors in both Australia and Japan. The end of labour market testing in the 457 programme will make it easier for Australian employers to hire skilled workers from Japan. The agreement should have the additional benefit of easing wait times for visa and permit processing for nationals of both countries.