In April 2017 the Government announced that the 457 Visa was going to be abolished in favour of the Temporary Skill Shortage (TSS) Visa.
This was implemented with the introduction of the Temporary Skilled Shortage Visa (TSS) on Monday, 18 March 2018.
The changes to Australia’s Temporary skilled visa programs that were introduced on 18 March 2018 are obviously of great interest and concern to applicants and to the Registered Migration Agents who act for them, not to mention persons who are in Australia under the recently “abolished” 457 visa program.
Work Experience Requirements
Primary applicants for the Temporary Skill Shortage (TSS) Visa will be required to have at least 2 years of work experience in the nominated occupation or a related field. That experience must be gained either while working in the nominated occupation, or at the same skill level in the related field.
The Department has released “policy guidance” concerning “flexible arrangements” for counting the required experience. As noted in the E-Newsletter, the work experience requirement may be able to be satisfied where the experience was gained through a masters or doctoral degree program; through a clinical or industry placement, internship or apprenticeship that has been undertaken as part of a “Commonwealth Register of Institutions and Courses for Overseas Students” (“CRICOS”) registered course where the placement is relevant to the occupation; and even outside of a CRICOS course of study where the placement has been at the skill level of the relevant nominated occupation.
Business Training Requirements
Training requirements for the grant of SBS have been abolished, but provision of training still is required according to the Migration Regulations (2.87B – Obligation to provide training). This may or may not be removed upon introduction of the Skilling Australians Fund (SAF). Therefore the Sponsor still needs to comply with training obligations, but Training Benchmark A and B are no longer the benchmark.
Penal Checks – Flexibility for “Accredited Sponsors”
Applicants for Temporary Skill Shortage (TSS) Visa will generally have to provide police clearance certificates both from Australia and from other countries where they have lived as evidence that they do not have criminal records and that they satisfy the requirement that they be persons of “good character”.
However, there will be a “relaxation” of the requirement that applicants provide police clearance certificates from countries other than Australia where the applicant is sponsored by an “accredited sponsor”
In those cases, applicants will be able to provide references from their accredited sponsor attesting that they are of good character and do not have any record of criminal convictions.
Despite this relaxation of the requirement for police certificates from other countries, applicants will nonetheless have to provide clearances from the Australian Federal Police.
The Department’s E-Newsletter indicates that the Department will be providing clarification of the process for demonstrating that applicants are of good character, including “model wording” for the character references to be provided by accredited sponsors.
Labor Market Testing
The Department has released policy guidance concerning Labor Market Testing requirements; however, it should be noted that this policy guidance may eventually be superseded by legislation.
Exemptions from Labor Market Testing will no longer be available based on the skill level of the nominated occupation. LMT will now be required for all occupations unless an International Trade Obligation applies and prevents Labor Market Testing.
The LMT will have to be completed within 4 months prior to the lodgement of an application.
The requirement imposed by the Migration Act that the sponsor provide evidence of its efforts to find suitably qualified and experienced Australian citizens or permanent residents to fill the position in question will continue to apply.
Department policy guidance currently indicates that the following evidence will be generally be considered sufficient to demonstrate that adequate labor market testing has been carried out:
* Nominated position has been advertised in Australia;
* Advertisement was in English and included information concerning the title or description of the position; name of the sponsor or recruitment agency; and the annual earnings for the position;
* At least 2 advertisements have been published on either: a national recruitment website; in national print media; on national radio; or, in the case of an accredited sponsor, on the sponsor’s Website (only if the Sponsor has Accredited Standard Business Sponsor status), over 28 consecutive days.
Genuine Position Requirement.
There have been no changes to the genuine position requirement for the Temporary Skill Shortage (TSS) Visa.
Businesses with annual turnover of greater than AUD 10 million will be required to make an upfront payment of AUD 1,800 per visa year for each foreign employee sponsored on a TSS visa. In addition, they will also pay a one-off levy of AUD 5,000 for each foreign employee sponsored for Australian permanent residence (i.e. for a subclass 186 permanent visa)
The levies apply at a lower rate of AUD 1,200 per visa year and AUD 3,000 respectively, for businesses with annual turnover below AUD 10 million.