JANUARY UPDATES: 457 Visa and Employer Sponsored Permanent Residency – Transitional Arrangements

457 Visa and Employer Sponsored PR Updates

457 visas

A six-monthly review cycle of the occupation lists was established by the Australian Government in April 2017 to ensure that the skilled occupations lists appropriately reflect genuine needs in the Australian labour market, and align with the Government’s policy that Australian workers have priority.

Updates to the occupation lists for temporary and permanent skilled visas will come into effect on or about 17 January 2018. This update is based on the review conducted by the Department of Jobs and Small Business (DJSB) in late 2017, which is now complete. This review was informed by labour market modelling and analysis, and feedback from employer and employee groups, and other government agencies.

Note:

• The new occupation list instruments, which come into effect, will not be applied to pipeline applications. This includes the new instrument that relates to the Temporary Work (Skilled) visa (subclass 457) program therefore any 457 nomination and visa application that is lodged prior to the occupation list change will not be affected by the list change.

TSS is coming

Our clients are reminded that the Government is introducing the TSS visa in early March 2018 (official date not yet confirmed) to ensure businesses can access the critical skills they need to grow, where no skilled Australian worker is available. There will be three options available under this new visa program:

• Short-term stream – this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of two years (or up to four years if an international trade obligation applies).
• Medium-term stream – this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL) for up to four years, with eligibility to apply for permanent residence after three years.
• Labour Agreement stream – this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.

Understanding the transition from subclass 457 to TSS

Subject to final approval of transitional arrangements, it is expected that:

• if subclass 457 nomination and visa applications are both lodged prior to TSS implementation, they will be processed under the current 457 visa framework.
• if a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will, however, effectively become ‘redundant’ as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved (subject to the specific scenarios below).

Arrangements will be put in place to ensure that such ‘redundant applications’ can be finalised and/or withdrawn with a refund of the fee provided.

We strongly advise all clients that the cut off date for lodging 457 nomination and visa applications is END OF FEBRUARY 2018. Please note if we do not lodge by the end of February 2018 then we will have to lodge under the new TSS visa which has further eligibility requirements, higher application fees and will also be subject to the new training levy ($1200.00 – $1800.00 per year of the visa).

If you do require us to lodge a 457 nomination and visa application before end of February 2018, please ensure we are instructed within plenty of time, i..e AT LEAST two weeks before end of February 2018 to ensure we can lodge before the cut off date. Please also note that as of 15^th January 2018, the DIBP will automatically refuse applications if ALL documents (except health and character) have not been attached within two working days.

Note:

• Secondary visa applicants (of 457 visa holders or pending 457 visa applicants) will be able to lodge a subsequent dependent TSS application and if they meet requirements, will be granted a TSS visa linked to their family’s subclass 457 visa/nomination application. The validity period of the TSS visa will match the expiry date of the subclass 457 primary visa holder.
• Subclass 457 visa holders whose visa is not expiring but wish to change employer after the implementation of TSS, can get their new employer to lodge a TSS nomination application to facilitate this as per current arrangements.
• Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity), they will, however, need to lodge a new TSS visa application referencing a new TSS nomination application

Labour Market Testing (LMT) for TSS

Under the new TSS visa stream, as part of the nomination application employers MUST evidence LMT – this is no longer able to be exempted. We therefore strongly advise all of our corporate clients to start advertising now for positions they are seeking to sponsor in the coming months.

 PERMANENT VISA UPDATE: Transitional arrangements for subclass 457 visa holders and applicants applying for permanent residence after March 2018

These arrangements remain subject to final approval. A summary table has, however, been provided below to assist applicants to determine which options may remain available to them.

Note: These transitional arrangements are relevant for TRT stream applications only. No transitional arrangements are in place for Direct Entry (DE) stream applicants who are expected to meet the requirements in place at time of application. New requirements will not be applied to pipeline applications.

Applicant Cohort	TRT requirements expected to apply
Applicant held a subclass 457 visa on 18 April 2017 and continues to hold this visa or a TSS visa/related bridging visa at time of application OR Applicant lodged a subclass 457 visa application on or before 18 April 2017 which was subsequently granted and continues to hold this visa or a TSS visa/related bridging visa at time of application.	New requirements apply subject to the transitional provisions outlined below: occupation list requirements will not apply; the age requirement will remain at less than 50 years of age with existing age exemptions still available; and the minimum period an applicant is required to have been employed in their nominated occupation as the holder of a subclass 457 or TSS visa will remain at two years.
All other applicants.	New requirements apply.

If you have any queries, please don’t hesitate to contact our office at the following:

Due to our office being at capacity, please allow 24-48 hours for us to respond to your enquiry.