457 visas changes Announced by Australia Government:

The Australian Federal Government has announced on 14 October 2014 that the following changes will be made:

“The Government will reform the 457 visa programme for skilled migrants, while maintaining strong safeguards against abuse.

The 457 programme must be a means of filling genuine skills gaps in the local labour market while not placing unnecessary administrative burdens on business.

An effectively managed skilled migration programme ensures foreign workers supplement rather than substitute Australian workers. A business that is forced to close because it is unable to access the labour that it requires employs no-one.  That is a lose–lose situation for both employers and employees.

Following an independent review of the 457 programme, the Government will:

·         streamline the processing of sponsorship, nomination and visa applications to reward low risk applicants and refocus compliance and monitoring activities on high risk applicants;

·         increase the sponsorship approval period from 12 to 18 months for start-up businesses, to give start-ups more time to make their businesses sustainable;

·         provide greater flexibility in relation to English language testing and skill requirements for 457 applicants, to ensure that the standards required are appropriate for the industries and occupations being sought; and

·         retain the Temporary Skilled Migration Income Threshold at $53 900, ahead of a review within the next two years.

Safeguards will remain in place to ensure that the 457 visa programme is not rorted. It will continue to be a requirement that a foreign worker receives at least the same market rates and conditions that are paid to an Australian doing the same job in the same workplace”

Comment by Chris Johnston, Principal Solicitor with Work Visa Lawyers:

The announced planned changes will be welcomed by businesses and by potential visa applicants.

The area of greatest interest for visa applicants will be in relation to the proposed greater flexibility in relation to English language requirements.

The 457 Report recommended the English language requirement be amended to an average score. For example, in relation to International English Language Testing System, the 457 applicant should have an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider).

So this averaging system mentioned in the 457 Report could be the greater flexibility, but we will have to wait until the actual changes are enacted.

The date of the 457 changes has not been provided.  The Federal Government has said that there “will soon make further announcements on the recommendations of reviews”.

Work Visa Lawyers will keep you posted in our news section.

Sources:

Joint media release with Prime Minister Tony Abbott, Minister for Industry Ian McFarlane and Minister for Immigration and Border Protection Scott Morrison.:

http://www.minister.immi.gov.au/media/sm/2014/sm218547.htm

Warning -This information is accurate on the 18 October 2014.  

DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application. 

Do you Need Help with the 457 process, to be approved as a business sponsor or to get an Australian Visa for an employee?

If you require further information regarding an employer sponsored visa applications , either as an employer or an applicant, we can help you.

Contact us on (08) 7225 5091 or +61 8 7225 5091

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

The Government has release a review report on the 457 program titled,Robust New Foundations: A Streamlined, Transparent and Responsive System for the 457 Programme.

The Report contains 22 recommendations, which include the following:

• $Labour Market testing requirements be abolished;

• A more flexible and adaptive approach to adding occupations to the 457 list (CSOL list), due to limitations of the current ANZSCO occupations.

• The exemption from the need to demonstrate the market rate should be aligned with the income level above which the top marginal tax rate is paid (currently at $180 000)

• No rises in the TSMIT  of $53,900 in the next two years

• Training Benchmarks - current training benchmarks be replaced by an annual training fund contribution based on each 457 visa holder sponsored, with the contributions scaled according to size of business.

• That the English language requirement be amended to an average score. For example, in relation to International English Language Testing System, the 457 applicant should have an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider).

• Genuine position requirement - That before decision-makers refuse a nomination on the basis of the genuine position requirement, the sponsor be invited to provide further information to the decision-maker.

• Sponsorship - That Standard Business Sponsors should be approved for five years and start-up business sponsors for 18 months.

• That greater priority be given to monitoring 457 business sponsors and visa holders.

• Inter-agency cooperation - That there be greater collaboration between the department and the Australian Taxation Office to uphold integrity within the 457 programme and minimise the burden on employers.

• Fair Work Ombudsman- That the Fair Work Ombudsman’s current complementary role in monitoring compliance and referral of findings to the department for action should continue.

• Sanctions - That dedicated resourcing be made available to the department to enable the investigation and prosecution of civil penalty applications and court orders.

Comments by Chris Johnston, Lawyer and Registered Migration Agent, Principal of Work Visa Lawyers:

It is important to note, that this is a Report with recommendations, and that the recommendations have not been implemented.  We will post further news soon after any of the recommendations are implemented and become 457 requirements.

Sources:

Migration Institute of Australia

Australian Government Report:

http://www.immi.gov.au/pub-res/Documents/reviews/streamlined-responsive-457-programme.pdf

News release by Senator the Hon. Michaelia Cash:

www.minister.immi.gov.au/media/mc/2014/mc217716.htm

Warning -This information is accurate on the 13 September 2014.  

DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application. 

Do you Need Help with the 457 process, to be approved as a business sponsor or to get an Australian Visa for an employee?

If you require further information regarding an employer sponsored visa applications , either as an employer or an applicant, we can help you.

Contact us on (08) 7225 5091 or +61 8 7225 5091

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

The nomination ceiling is the limit of positions that a 457 sponsor is allowed to nominate under the 457 program. 

The PAM3 - Sponsorship applicable to Division 3A of Part 2 of the Act – Sponsorship was amended on 14 February 2014 to remove references to sponsorships ending on the event of the number of approved nominations (the nomination ceiling) being reached.

Policy relating to Reg 2.63(2) now refers only to the end date of approval of the sponsorship as the expiry of the approval.

Sponsorships approved after the 14 February 2014 will be able to keep making nominations, after the requested number of nominations has been reached, as long as the three year sponsorship approval is still valid.

Sponsorship approved before the 14 February changes will still be subject to the sponsorship ceilings, and will cease once the ceiling is reached.

Reaction from Interest Groups:

Various media have reported the change as the opening of a loophole or similar negative event.

http://www.smh.com.au/federal-politics/political-news/rort-fears-as-457-visa-loophole-reopened-20140311-34kgr.html

http://au.news.yahoo.com/a/21937663/shorten-worried-about-flood-of-457-visas/

Commentary by Chris Johnston:

The removal of the Sponsorship ceiling does not mean that 457 visa applications and 457 sponsors will be without appropriate conditions and monitoring.

The nomination ceiling was only one of the many limitations and check that are part of the 457 process.  The 457 is still subject to many criteria designed to protect Australian workers and Australian wage standards.  These include that the salary for the nominated position must be above the TSMIT, which is currently $53,900.00.  Another protection is the requirement that the salary be at the Market Salary paid to equivalent Australian workers.

The Department of Immigration monitors 457 sponsors to make sure that the approved 457 conditions are met by the employer.    If breaches are found then sponsorship bars, sanctions and fines can be imposed.

The 457 ceiling has previously been introduced and then subsequently removed.  So the cycle of changes continues.

Sources:

http://www.immi.gov.au/Visas/Pages/457.aspx

Migration Institute of Australia

Warning -This information is accurate on the 16 March 2014.  

DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application. 

Do you Need Help with a 457 visa?

If you require further information regarding a 457 application , either as an employer or an applicant, we can help you.

Contact us on (08) 7225 5091 or +61 8 7225 5091

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

On the 23 November 2013 the new 457 Labour Market Testing Requirements (LMT)  commenced.  The LMT requirements apply to the nomination stage of the 457 process.

The requirement under Legislative Instrument is that the period in which the advertising of the nominated position must have been, is within 12 months.

Exemptions to LMT:

There are exemptions to LMT based on:

·         occupation level

·         International Obligations.

Exemptions Based on Occupation Level:

There are exemptions for occupation that areANZSCO as Skill Level 1 or 2.

Skill Level 1 are occuptions that require an Australian Degree Level qualification or at least five years of relevant experience may substitute for the formal qualification.

Skill Level 1 occupations include:

General Managers; Farmers and Farm Mangers; Accountants; Medical practitioners; Analyst Programmer; Developer Programmer; 

Skill Level 2 are occupations that require an AQF Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience including:

Customer Service Manager; Café and Restaurant Mangaer.

Major Occupations not exempted from LMT – Engineering and Nursing

While most occupations requiring the level of education stated above are exempted from LMT, if the qualification or experiences are in the field of following groups, LMT must be done prior to lodging Nomination application.

·         Engineering (including shipping engineering)

·         Nursing

Exemptions Based on International Obligations:

There are also exemptions based on Australia’s International Trade Obligations.

These are available where 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.

The definition of ‘Executive or Senior Manager’ is given a very wide interpretation, according to the DIBP website includes:

Registered Nurse, Driller, Welder, Automotive Electrician, Motor Mechanic (General), Diesel Motor Mechanic, Motorcycle Mechanic           

See the list on the DIBP website:

http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4%20in%20the%20%E2%80%9CWho%20can%20nominate?%E2%80%9D%20section.

LMT will be necessary for Trade Level Occupations and below, if no exemptions apply:

At a practical level, this means that LMT will be necessary for trade level occupations which are ANZSCO Skill level 3  and for any occupations with ANZSCO skill levels below level 3.  For example Machinery Operators and Drivers which are Skill level 4 includes the occupation of Driller, which is on the ANZSCO.

This means that unless exemptions are available through International Obligations, LMT will be necessary for a number of occupations including: Electrician (general); Plumbers; Bakers; Painters; Drillers.

What level of LMT will the DIBP accept?

Details on the LMT expected can be found on a DIBP Q and A, which included the following:

“Q. What information do I need to provide as evidence of having conducted labour market testing?

A. You must provide information about all advertising or other recruitment efforts undertaken in relation to the nominated occupation in the preceding twelve month period. You must provide information about where those advertisements/recruitment activities took place, the dates they occurred and the geographic target audience of the advertising/recruitment efforts. You must provide information about the outcome of those activities including the number of applications received, the number of applicants hired and the general reasons why the other candidates were unsuccessful.

You can use the Domestic Recruitment Summary Table to summarise this information for the purpose of providing evidence of labour market testing with your nomination. It can be downloaded from the department’s website at http://www.immi.gov.au/Visas/Pages/457.aspx?tab=4

Q. Is advertising in social media channels such as Facebook an acceptable form of labour market testing?

A. Use of social media to advertise a vacant position(s) is acceptable. As with all other forms of advertising or recruitment efforts, you will need to provide information about the process you undertook and the results the advertising produced.

Q. Do I have conduct paid advertising to meet the labour market testing evidence requirement?

A. No. Paid advertising will not be considered more favourably than free advertising for the purpose of evidencing labour market testing.

Q. Do I have to provide details of the recruitment process such as records of interview or copies of job applications received?

A. No.

Q. Is advertising on my company’s own website an acceptable form of labour market testing?

A. Yes.

Q. My company uses an external recruitment agency. Is this an acceptable form of labour market testing?

A. Yes, however you are still required to provide information about the recruitment efforts undertaken on your behalf and the outcome of those activities.

The Department of Immigration and Border Protection has provided a Domestic Recruitment summary Template, to assist employers with the process of supplying information about the advertising process.

Redundancies and LMT
If an Australian citizen or permanent resident has been retrenched or made redundant in your business, or an associated entity of your business, within the four months prior to lodging your nomination, you must also provide information about those redundancies or retrenchments.”

What the Government has said about the LMT for 457 visas

In a press release on the 15 November 2013, Senator Michaelia Cash, the Assistant Minister for Immigration and Border Protection, gave her summary of the governments new LMT implementation.

The following is stated:

“The government announced today it will adopt a sensible approach to the implementation of new rules requiring employers to test the local labour market before seeking to employ an overseas worker on a subclass 457 visa. …

Guidelines released by the Department of Immigration and Border Protection for labour market testing recognise a broad range of recruitment activity as being an acceptable demonstration of labour market testing, and the time period in which labour market testing evidence will be valid for will be 12 months.”

Commentary by Chris Johnston, Principal Lawyer and RMA at Work Visa Lawyers:

The Labour Market Testing as announced will add an extra layer of effort for many employers, looking to nominated a position for a 457 visa.

There are a number of exemptions, which need to be examined carefully for each potential nominated position, to determine if LMT is required.  Many conventional professions, are exempted through their AZNSCO skill level. However Engineering and Nursing occupations are not exempted and do required LMT.  The trades will be hardest hit.  But even some trade positions will be exempted, depending on where the applicant is coming from – if a World Trade Organisation company, and being sponsored by a business where there is a parent business overseas.

If LMT is required, then the requirements for advertising are relatively broad, compared to what is required for the Direct Entry RSMS 187 visa, by many Regional Certifying Bodies.

The LMT must be within 12 months of the nomination, and the ranges of types of advertising available, include any of the following, paid online or paper, through a recruitment agent, online free adverts and even adverts through a sponsors own website.

Sources:

Migration Act 1958 - Determination of Specified Period in Which Labour Market Testing Must be Undertaken - IMMI 13/136 - F2013L01953

Migration Act 1958 - Specification of Occupations Exempt from Labour Market Testing - IMMI 13/137- F2013L01952

Migration Act 1958 - Legislative Instrument IMMI 13/138 [F2013L01954]

http://www.minister.immi.gov.au/media/mc/2013/mc209591.htm

Warning -This information is accurate on the 23 Nov 2013.  

DIBP will change visa requirements in an ongoing manner and all current requirements must be established prior to lodging an application. 

Do you Need Help with a 457 visa?

If you require further information regarding a 457 application , either as an employer or an applicant, we can help you.

Contact us on (08) 7225 5091 or +61 8 7225 5091

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

An interesting article by Myriam Robin about 457s in WA:

http://www.smartcompany.com.au/managing-people/057723-why-small-wa-firms-are-turning-to-457-visas-we-can-t-compete-with-the-big-miners-on-wages.html

Need Help?

If you require further information regarding a 457 application or your Australian visa options you contact our offices on (08) 7225 5091 or +61 8 7225 5091 or

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