On 16 May 2016 the Department of Immigration and Border Protection (DIBP) announced a new Skilled Occupation List (SOL) and Consolidated Skilled Occupation List (CSOL) for the upcoming fiscal year 2016-17.

The SOL enables visa applicants to nominate occupations under the General Skilled Migration (GSM) visa categories, such as:

• Skilled - Independent (Subclass 189)
• Skilled - Regional Sponsored (Provisional) (Subclass 489) by a family member
• Temporary Graduate (Subclass 485)

On the other hand, the CSOL applies to the following visa applications:

• Skilled - Nominated (Subclass 190)
• Skilled - Regional Sponsored (Provisional) (Subclass 489) by a State/Territory
• Temporary Work (Skilled) (Subclass 457)
• Employer Nomination Scheme (Subclass 186)

What occupations are being updated in the new SOL and CSOL?

The following are noted changes in the new SOL and CSOL:

Occupations moved from SOL to CSOL

233611  Mining Engineers (excluding Petroleum)

233612  Petroleum Engineers

234912  Metallurgists

251311  Environmental Health Officers

251312  Occupational Health & Safety Advisers

411211  Dental Hygienists

411212  Dental Prosthetists

411213  Dental Technicians

411213  Dental Therapists

Occupations added to the SOL

251912  Orthotist or Prosthetist

252711  Audiologists

The new SOL and CSOL come in to effect for affected visa applications on 1^st July 2016.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The new changes to the SOL and CSOL provide the following insights:

• Accountant remains on the SOL. There has been much talk of whether there are already a lot of accounting graduates in Australia and if Accountants should be removed from the SOL. According to Job Outlook the prospects for Accountants up to November 2019 look very promising with excellent job openings and future growth. It is a great relief to international students who are graduating with an Accounting degree that Accountants remain on the SOL.
• Mining and Petroleum Engineers shifted to the CSOL is corresponding to the downturn of the mining sector in Australia
• Dental workers now require sponsorship to apply for a visa with the new CSOL

In general the SOL and CSOL do not indicate much of the DIBP’s direction towards occupations. The more telling information will be the planned occupation ceiling numbers for each profession, which determines how many applicants are allowed for an occupation in a single fiscal year. For example even if Accountants remain on the SOL it may be a non-factor if the occupation ceiling is set to be very low.

Occupational ceilings do not apply to State or Territory Nominated and Employer Sponsored visa applications.

Additionally you have to always remember that there are other eligibility criteria that need to be met before you can successfully apply for a visa. Please check all other requirements before submitting an application.

This information is accurate on 24 May 2016

Source:

1. https://www.legislation.gov.au/Details/F2016L00800/Download
2. http://www.border.gov.au/Trav/Work/Skil#tab-content-3
3. http://joboutlook.gov.au/occupation.aspx?search=alpha&tab=prospects&cluster=&code=2211

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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2018 UPDATES:

Skills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident VisasSkills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident Visas

Tougher vetting imposed by Home Affairs Minister Peter Dutton has led migration to plummet to its lowest since 2007. As reported by the Department of Home Affairs, actual intake fell from 183,608 in 2016-2017 to a staggering 162,417 for the 2017-2018 financial year. Read More. 

How long does a 457, ENS or RSMS visa take to process?

It has been noted that the processing times for the Temporary Work (Skilled) (subclass 457) visa, Employer Nomination Scheme (ENS) (subclass 186) visa, and the Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa have been getting longer in recent times. While the current Department of Immigration and Border Protection (DIBP) service standards list 2 to 3 months processing time for 75% of applications received, the actual processing times for most cases are around 5 months (based on recently submitted applications and comments by business sponsors and visa applicants in forums).

Why is the processing getting slower?

While there is no official explanation for the delay, the slower processing times might be due to increased screening of applications submitted by sponsors and visa applicants. Since the Independent Review report of the integrity in the Subclass 457 Programme released in September 2014, the Department has been stepping up integrity checks and controls for the majority of applications, especially those with the following characteristics:

• high risk occupations such as Café and Restaurant Managers, Customer Service Managers, Project or Programme Administrators, Retail Manager, etc.
• the applicant is related to the business owner as a family member or relative
• an unusually high salary for a low position to claim English Language Exemption
• the business has a low profit or is making a loss, and yet seeks to employ more people

The Department is definitely concerned with the findings of the Independent Review about the integrity of employer sponsors and employee visa applicants for the employer-sponsored visas. In addition to the slower and more meticulous screening of applications submitted, the Department has also introduced related policy such as the “Payment for Visas Conduct”, which prohibits overseas worker to pay businesses in return for sponsorship, or businesses deducting salaries from the sponsored worker to recover sponsorship costs. You can read more about this in our previous article.

Concerns with Genuine Position for Nominated Occupation in 457, ENS and RSMS visa applications

Applications with the above scenarios are likely to be asked for further information by the Department to ensure that the vacant position is genuine and the applicant meets the requirements for the position with the business. Applications that are asked to provide more documents or information will be assessed more thoroughly by the Department and hence there will be a delay to the processing times with the back and forth of submitting information and douments.

The rise in requests to provide further information are also causing assessment officers to spend more time per application, hence affecting applications that are straightforward genuine and complete when submitted.

What does this mean for the business sponsor and visa applicant?

With the expected delays the business sponsor and visa applicant need to consider the extended processing times to avoid any ill effects to the business operations (urgent need for the sponsored worker) or the visa applicant (leaving current employment too early). Additionally the business sponsor and visa applicant need to cross check before submitting the application to ensure all requirements are met for sponsorship, nomination and visa application. A strong application should be prepared with good supporting documents before submitting to the Department for processing.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

While the 457 visa programme has been in the limelight for the wrong reasons and being tightened in recent times, the employer sponsored programme is still an integral part to many businesses in Australia. Australian employers have a genuine need to employ skilled overseas workers to meet business needs to maintain or grow the Australian economy.

With the increased international mobility among skilled workers globally, it is important that the 457 visa programme remains responsive to Australian businesses’ needs and enable efficient operations.

The Department’s commitment to checking and ensuring that the 457 visa applications received are genuine makes sense to avoid abuse of the programme. However the downside of slower processing times may hurt Australian businesses that already show that they genuinely need an employee who has been identified with the right skills and experience to help meet business operational needs. The Department will need to strike a delicate balance between enforcement and delivering a visa application outcome in time for the Australian businesses.

If you have any questions about the 457 visa sponsorship, nomination and visa application, please contact Work Visa Lawyers to ensure your applications are prepared well before applying.

This information is accurate on 18 May 2016

Source:

1. http://www.theaustralian.com.au/business/opinion/john-durie/small-business-angry-over-section-457-visa-delays/news-story/f53d0b941627c2403cc3abb8d014ce35
2. https://www.border.gov.au/Trav/Work/Work/Subclass-457-Integrity-Review
3. https://www.border.gov.au/about/access-accountability/service-standards/temporary-work-visa-processing-times
4. https://www.border.gov.au/Trav/Work/Work-1

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

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Temporary workers on the Working Holiday visa (subclass 417) and Work and Holiday visa (subclass 462) were originally expected to start paying a 32.5% tax on all wages starting on 1 July 2016 (referred as the Backpacker Tax). Assistant Treasurer Kelly O'Dwyer has announced today that the Backpacker Tax will be delayed until 1 January 2017, pending a review to the Working Holiday (subclass 417) and Work and Holiday visas (subclass 462).

With the delay of the implementation of the Backpacker Tax, temporary workers under the subclass 417 and subclass 462 visas will continue to pay tax on money earned above A$18,200.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

This is good news for workers and current holders of the Working Holiday and Work and Holiday visas as the tax-free threshold is maintained. The programme will continue to be attractive for overseas youth to travel to Australia while being able to work to cover travel expenses. Regional agricultural business and farmers will be delighted with the news as it might mean that there is no need to increase payments to attract workers who are required during harvest.

Links to related articles:

• http://www.bbc.com/news/world-australia-36309023
• http://www.farmweekly.com.au/news/agriculture/general/politics/backpacker-tax-reforms-set-to-be-shunned/2752421.aspx
• http://www.afr.com/news/policy/tax/time-to-go-sydney-too-expensive-with-a-backpacker-tax-20160517-gowxat
• http://www.abc.net.au/news/2016-05-17/nt-farmers-call-backpacker-tax-delay-a-stunt/7421412

If you are interested to know more about the Work and Holiday visa programme, you can contact Work Visa Lawyers to find out more.

This information is accurate on 17 May 2016

Source:

1. http://www.abc.net.au/news/2016-05-17/malcolm-turnbull-to-back-down-on-backpacker-tax/7420102

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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The Minister for Immigration and Border Protection Peter Dutton announced on Friday, 6 May 2016 that the Australian Department of Immigration and Border Protection (DIBP) will be introducing two significant changes for visitor visa applications from Singapore nationals.

The two changes to be introduced are:

1. Making Singapore an eligible country for the Work and Holiday Visa Programme
2. Allow Singaporeans to apply for a longer validity visitor visa with multiple entry features 

The inclusion of Singapore as an eligible country for the Work and Holiday visa means that Singaporean youths aged 18 to 30 years of age will be able to travel and work in Australia for a period of up to 12 months. It is expected that 500 places will be made available to Singapore for the Work and Holiday visa on an annual basis.

The availability of a visitor visa with a longer validity and the ability to make multiple entries will enable visitors from Singapore to travel easier and more frequently to Australia. It is expected that this will boost tourism numbers and improve bilateral understanding of the culture and environment between both countries.

The announced changes will be implemented at a later date and we will bring you further updates once more information becomes available from the DIBP.

This information is accurate on 12 May 2016

Source:

1. http://www.minister.border.gov.au/peterdutton/2016/Pages/Australia-enhances-visa-programme-with-Singapore.aspx

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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*** Read our earlier article about the new Student Visa structure here. ***

The new student 500 and student guardian 590 will commence from 1 July 2016

Features to include:

Three features we can comment on:

1.       The applications will be all electronic.

2.       The financial capacity requirements will be slightly higher:

The financial capacity requirements will be slightly higher:

Student: $19,830

Student Guardian: $19,830

Spouse or de-facto partner of student: $6,940

Any dependent children: $2,970

Simplified Student Visa Framework (SSVF)

The new simplified student visa framework (SSVF) will be influential in terms of the criteria for the student visa:

The DIBP website provides the following information:

“Under the SSVF, the combined immigration risk outcomes of the student’s education provider and country of citizenship will be used to guide the level of documentation relating to financial capacity and English language proficiency that the student would need to provide with their student visa application.”

The following chart if available from a factsheet for education providers:

“In the table S refers to streamlined evidentiary requirements while R refers to regular evidentiary requirements. Where regular evidentiary requirements apply the student will generally be required to provide evidence of their financial and English language capacity with their visa application.”

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The shift to all electronic lodgements will be a major benefit to many applicants.  It will also allow the DIBP/DFAT to save money on staff costs.

We will provide more information about the specific requirements once they are available. In the meantime it is best that you submit your visa applications as early as possible to avoid any delays in starting your enrolled courses.

The simplification in visa classes and risk assessment criteria will be great for all involved.  The current system is very confusing and not user friendly at all.

This information is accurate on 07 May 2016

Sources:

1.     DIBP, SSVF factsheet- General information for education providers, May 2016

2.     Migration Institute of Australia, Reports to Members

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or  This email address is being protected from spambots. You need JavaScript enabled to view it.

From 1 July 2016 the Australian student visa programme will be amended to having just two visa subclasses (currently there are EIGHT subclasses). The two visa subclasses will be Subclass 500 (Student) and Subclass 590 (Student Guardian).

By reducing the various student visa subclasses the Department of Immigration and Border Protection (DIBP) aims to introduce and apply the same criteria for all student visa applications. The criteria will include:

• enrolment requirements
• English language requirements
• financial capacity requirements
• Genuine Temporary Entrant (GTE) requirements

Current assessment levels and streamlined visa processing arrangements will be removed with case officers required to consider more factors to assess the genuineness and the need for individuals to provide evidence of financial and English proficiency. Case officers will be assisted by the new combined country and provider immigration risk framework that will help guide student visa evidentiary requirements and create streamlined visa application processing opportunities for education providers across all sectors.

A condition will also be attached to the new student visas to determine if a new student visa is required if you change your education courses. There will also be no restrictions on bringing family for students studying for less than 10 months.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The changes announced to the student visa programme come as a result of the “Future Directions for Streamlined Visa Processing Report and Recommendations” report compiled in June 2015. While it sounds like the DIBP is heading in the right direction by streamlining the student visa application process, we will need to observe the adjustments made by the DIBP after July 2016 to find out if this is a better system.

We will provide more information about the specific requirements once they are available. In the meantime it is best that you submit your visa applications as early as possible to avoid any delays in starting your enrolled courses.

This information is accurate on 18 April 2016

Source:

1. https://www.legislation.gov.au/Details/F2016L00523/Download
2. https://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/future-directions.pdf

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Submitting a visa application is the first step in obtaining temporary or permanent residence in Australia. While most visa applications are finalised in 6-12 months, some visa applications such as the Partner Visa can take up to 24 months to finalise.

As such it is important to consider not only the documents, information and situation at the time of submitting your application, but also to be aware of what needs to be done until the visa is granted.

2018 Update & Related Articles: 

Partner Visa Sponsorship & Policy Update 2018: Changes Affecting Processing Times & Force Offshore Partner Visa Applications

What do you need to do after you have submitted your partner visa application?

24 months of uncertainty over the visa application outcome can add stress to the relationship between partners. It is important that the relationship remain strong throughout the application process and also continue to collect and build evidence that shows an ongoing and growing relationship. Even after submitting your application, you should continue to:

• gather documents that show co-habitation, such as utility bills in both names or letters to both addressed to the same address
• compile photographs of both together at social events
• share financial responsibilities and actively use joint bank accounts for financial transactions

There are more that can be done but the above are some examples that require continuation even after lodging your partner visa application. Case officers can call to ask questions, or make site visits to determine the authenticity of the relationship and application. Any deterioration or adverse effect to the relationship will decrease the chances of a successful visa application.

The 2 Year Provisional Period

Most partner visas that are approved are provisional for a period of at least 2 years from the date of visa application. While the applicant holds Australian temporary residency and has access to Medicare, the temporary residency status can be revoked if the relationship dissolves within 2 years from the date of visa application lodgement. Therefore it is important to note that the relationship must continue to exist for at least 2 years from the date when the Department of Immigration and Border Protection (DIBP) received the partner visa application.

Once the 2 years have passed the applicant and sponsor should pro-actively contact the DIBP if they have not received any contact from the Department. You can initiate the second stage assessment for the permanent partner visa by using the information and instructions on the Partner (Permanent) Calculator on the DIBP website. Usually the Department will send you correspondence for this so it is very important that you update the Department if your residential or correspondence address has changed over the 2 year period.

Once the assessment is completed the applicant will receive the permanent Partner Visa (subclass 801). You can only sponsor relatives when you receive the permanent Partner Visa.

What if there are complications to the relationship during the 2 year provisional period?

While it is a requirement to fulfil the 2 years before obtaining the permanent Partner Visa, it is possible to have the permanent visa granted earlier if the following circumstances occur:

• your sponsor or de facto partner dies, the relationship would have continued if they had not died, and you have developed close business, cultural or personal ties in Australia
• the relationship breaks down and there is a child of the relationship
• the relationship breaks down due to family violence

You will need to contact the Department immediately if the events above occur. It may also be helpful to seek the advice of a Registered Migration Agent first to assess the situation.

What if there is Domestic Violence?

There are provisions in the Migration Act to protect holders of the provisional partner visa against domestic violence. The provisions aim to protect provisional partner visa holders from being abused by partners who use the provisional visa status as leverage. While it is unpleasantly true that such cases do occur, the victims of domestic violence must provide enough evidence to the Department to support such claims.

You are advised to seek the advice of a Registered Migration Agent with experience in such cases to assess the evidence you have to claim domestic violence in the relationship.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The Australian Partner Visa application has been plagued with increasingly longer waiting periods and this has made the uncertain waiting period a test to a couple’s relationship. It will be harrowing to find out that the visa application is refused after waiting for close to 24 months. As such it is best to submit an application that is strong with supporting evidence at the beginning, to ensure the best chances of success for the application. Prepare your application well before submitting it to the DIBP.

Another note is that applicants with Schedule 3 considerations, where the applicant was unlawful in Australia at the time of application, are less likely to receive waivers as the Department has been very strict in assessing the “compelling reasons” criteria. If you are an applicant with Schedule 3 considerations, please check with a Registered Migration Agent first before lodging your Partner Visa application.

This information is accurate on 8 April 2016

Source:

https://www.border.gov.au/Trav/Visa-1/801-

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

On 15 March 2016, the Department of Immigration and Border Protection (DIBP) introduced new provisions that allow priority processing of visitor visa applications for Chinese nationals. This program is being run as a trial for the moment, and may expand to include applicants of other nationalities at a later date.

The following are further details:

• The priority processing is only available to passport holders for the People’s Republic of China
• The request for priority processing is only available for applicants of the Visitor Visa Tourist or Business Visitor streams
• The fee for priority processing is A$ 1,000 in addition to the original visa application fee
• The method to request for priority processing differs according to your visa application lodgement method

While you can request for priority processing, there is no guarantee that the visa will be granted quickly. The DIBP repeatedly reminds you that the finalisation of the visa application also depends on factors such as the applicant meeting the health and character requirements. You cannot ask for a refund of the priority processing fee unless the visa application fee is refunded.

Therefore it is best that you prepare all necessary documents and complete all health and character checks before requesting for the priority processing.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The introduction of the priority processing looks positive in encouraging more visitors from China. It also demonstrates the improving bilateral ties between Australia and China. The option of priority processing may also facilitate travel plans for tourists and business visitors from China.

However it will be interesting to observe if the normal processing timeframe gets slower, inevitably forcing more applicants to choose the priority processing option. Furthermore the additional A$ 1,000 spent on applying for a visa may be perceived as a barrier to visit Australia, and may also reduce the amount of travel allowance available while visiting Australia. This means that the spill-over benefits to local Australian businesses and vendors will be reduced.

This information is accurate on 24 March 2016

Source:

https://www.legislation.gov.au/Details/F2016L00295/Download

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Closure of ACT nomination program to overseas applicants for 2015/16 - subclass 190 visa

The following has recently been announced by Migration and Information Services section of the ACT Government.

“Skilled Nominated (subclass 190) visa – Closure of ACT nomination program to overseas applicants for 2015/16

Effective immediately (18 March 2016 at 4pm AEST) - The ACT Migration program is closed to all overseas residents. If your client is not in Australia, you will not be able to apply for ACT nomination of a Skilled Nominated (subclass 190) visa until the program reopens on 1 July 2016.

Applications for ACT nomination submitted before 4pm today will still be processed in queue order.

Please note, the current processing time is 3 - 4 months due to the large number of applications received post publication of the February 23 Occupation List.

CANBERRA RESIDENTS

This action does not affect Canberra based applicants. If your client is living in Canberra the 190 ACT nomination program is still open if they meet the nomination criteria. The average processing time of applications from Canberra residents is 4 weeks.”

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

This closure of the list announced by the ACT government is probably just the first of a number of similar actions by States and Territories.   The migration program year runs from the 1 July to the 30 June each year.

The states have a limited numbers of positions to nominate and they also try to set their own internal target in relation to different occupations.  As the end of the migration program year approached, and we get closer to the 30 June 2016, the state and territories may run out of positions to nominate.

The positive side of the cycle, is that the states will have new quotas of position to nominated from the 1 July 2016. So it is often still worth while for you to get your skills assessed and to achieve the required English scores, with a view to the new lists.

Source:

 http://www.canberrayourfuture.com.au/portal/migrating/article/skilled-migration-visas/

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

The 457 visa is the most popular employer sponsored work visa for overseas professionals and tradespeople to work in Australia. According to the latest Subclass 457 Quarterly Report for the period up to 30 September 2015, there were 14,370 subclass 457 visa applications lodged with the Department of Immigration and Border Protection (DIBP), out of which 13,240 applications were approved. This means that in the 1^st quarter of the 2015-16 subclass 457 visa programme year a total of 1,130 applications have already been rejected.

While there are various eligibility factors to consider from the employer, nominated position and visa applicant perspective, this article will focus on the application criteria of Labour Market Testing and Market Salary for the 457 Temporary Work Visa.

So what is Labour Market Testing?

Implemented in November 2013, the Labour Market Testing requirement tasks standard business sponsors to test the local labour market before hiring an overseas worker for nominated position.

The purpose of the Labour Market Testing is to ensure that available job opportunities are provided to the local workforce first before looking to sponsor an overseas individual to fill the role required.

What do you need to do to meet the Labour Market Testing Requirement?

Standard business sponsors need to record efforts and attempts to hire local Australian citizens or permanent residents. The recruitment activities need to be sufficient to justify that the local workforce cannot fulfil the requirements of the nominated position due to the lack of skills, qualifications or relevant work experience. Such recruitment efforts may include the posting of job advertisements, conducting interviews and tabulating the outcome of all applications for the advertised position.

Are there any exemptions to the Labour Market Testing requirement?

There are avenues for exemption from the Labour Market Testing. You can be exempt from Labour Market Testing for the following reasons:

Occupation Level

Occupations described by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as skill level 1 or 2

Skill level 1 occupations are occupations that require an Australia degree level qualification or at least five years relevant experience, which may substitute for the formal qualification.

Some examples of skill level 1 occupations include General Managers, Marketing and Advertising Managers, IT Managers, Farmers and Agricultural Managers, etc.

Skill level 2 occupations require an Australia Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience as a possible substitute for the formal qualification.

Some examples of skill level 2 occupations include ICT professionals such as Developer Programmers, Software Engineers, Business Professionals and Teachers.

However some skill level 1 and 2 occupations still require Labour Market Testing to be done. These occupations include positions in the engineering and nursing profession. You can refer to the list here. If you are nominating an occupation in these professions, you will need to provide evidence of Labour Market Testing.

International Trade Obligations

1. The worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
2. The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, Korea or New Zealand.
3. The worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
4. Your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager”.
5. The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

When should I conduct the Labour Market Testing?

Labour Market Testing must have been conducted within 12 months before the lodgement of a 457 visa nomination. Evidence of Labour Market Testing must be presented at the time of nomination lodgement.

Market Salary and Equivalent Employment Terms and Conditions

Standard business sponsors are required to offer employment terms and conditions that are comparable to those offered to Australian citizens and permanent residents. This is required to ensure overseas workers are not being exploited for cheap wages or long work hours.

You can be exempted from demonstrating market salary rates if the proposed annual earnings of the worker is at least AUD 250,000.

You will need to show that the terms and conditions offered to the sponsored overseas worker are of the same wages and working conditions as an Australian employee. If there are no comparable Australian employees in a similar position, the standard business sponsor should refer to relevant industrial instruments such as modern awards to determine market salary and acceptable employment conditions. The Fair Work Ombudsman (https://www.fairwork.gov.au/) is a good reference to ensure acceptable employment conditions are in place.

Market Salary and the Temporary Skilled Migration Income Threshold (TSMIT)

Although a separate requirement, the Temporary Skilled Migration Income Threshold (TSMIT) is an important consideration when determining the Market Salary for a 457 visa application. The rules in relation to the TSMIT are:

• The market salary for the position must be greater than the TSMIT
• If the market salary for the position is lower than the TSMIT then you will not be able to sponsor an overseas worker for the position under the 457 visa programme
• You cannot pay an overseas worker above the market salary rate just to meet the TSMIT

The TSMIT is currently set at AUD 53,900.

If you need further information that is specific to your business, industry or situation, please contact us to find out more details on the 457 visa application requirements.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The DIBP does not clearly spell out the exemption to Labour Market Testing based on skill levels of the occupation. As such there have been instances where businesses paid thousands of dollars to agencies that provide Labour Market Testing services when it was not necessary. Occupations such as Software Engineers or Marketing and Sales Managers do not need Labour Market Testing due to their occupation skill level, but businesses have paid unnecessarily to meet the Labour Market Testing requirement. Always check with an experienced Registered Migration Agent to determine if the Labour Market Testing is applicable for the position you are nominating.

While standard business sponsors are required to meet the Labour Market Testing and Market Salary requirements at the time of application, it is also important that the sponsors adhere to the employments terms and other obligations after the 457 visa is granted.

Failure to maintain such conditions can lead to monitoring and sanction penalties from the Department of Immigration and Border Protection (DIBP).

This information is accurate on 19 February 2016

Source:

1. https://www.border.gov.au/Trav/Visa-1/457-
2. https://www.fairwork.gov.au/

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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