What has changed
Australia’s Department of Immigration & Border Protection (DIBP) has announced various regulatory, policy and procedural changes in relation to Australia’s 457 visa program.
Who is affected?
- Those utilizing Australia’s 457 visa program
What to expect
The regulatory and policy changes are:
- A regulatory change to the visa condition “8107” which is applied to all Temporary Work (Skilled) subclass 457 visas.
- Minor policy changes on Labour Market Testing, which is only applicable for some occupations and where there is no other exemption available.
- Minor changes to the new sponsorship accreditation arrangements which came into effect in July, 2016. Our earlier bulletin on this topic can be viewed here.
- Other changes flagged relate to the Department of Immigration & Border Protection’s application handling procedures for 457 visas, as detailed below.
Change to Condition 8107
All Temporary Work (Skilled) subclass 457 visas are issued subject to a condition (“8107”) which stipulates, amongst other things, that the holder of the visa may only work for the employer who nominated them in the position or occupation for which they were approved. Another part of that condition is that if they cease employment, that the period of time while they are not employed must not exceed ninety (90) days. This ninety (90) day provision is proposed to be reduced to sixty (60) days for visas granted on or after November 19, 2016. This change is subject to the changed regulations being approved.
In the meantime, DIBP confirmed that visa cancellation action in relation to current visas would not be taken when a person has ceased employment with one employer but a new nomination has been lodged on their behalf within ninety (90) days. Where a visa holder’s employment has ceased and a new nomination is not lodged within ninety (90) days, DIBP may commence cancellation action by issuing a Notice of Intention to Consider Cancellation. The visa holder then has a period within which to respond to that notice prior to the visa being considered further for cancellation.
Labour Market Testing Policy Changes
Where Labour Market Testing is required, which is where there is no exemption stemming from either the occupation or international trade obligations, evidence of Labour Market Testing must accompany the nomination application. The policy clarification, which is to be formally adopted from 14 October, is that “accompany” is interpreted as meaning evidence of Labour Market Testing must be supplied at the time the nomination is lodged and not days or weeks later. If it is not provided on the same day or the next working day, the nomination application will be refused. The Labour Market Testing must have been performed within the twelve (12) months prior to lodging the nomination.
Minor Changes to the New Sponsorship Accreditation Arrangements
The new sponsorship accreditation arrangements which were introduced in July include scope for Australian employers who have sponsored at least ten (10) primary 457 visa holders in the twenty-four (24) months prior to the application for accreditation. Policy has been refined to include where these employers have nominated people who already held 457 visas they acquired via a nomination by a previous employer. The current “Visa Grant Threshold” will be replaced by a “Sponsorship Volume Threshold” and remain at ten (10) primary 457 visa holders approved in the twenty-four (24) months prior to the sponsorship accreditation application being made.
Secondly, there is clarification over salary evidence that applicants for sponsorship accreditation must provide in their application. Accredited sponsor applicants must specify salary rates for their Australian employees in an Enterprise Agreement (EA) or internal salary table. As well as providing a copy of the EA or salary table, applicants must provide a description of how the business determined the salary rates contained in the document reflect current market salary and evidence to support their determination. The salary table, where used, should also detail salaries against occupations as they appear in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) and not against an internal business structure. The table should cover occupations for which the sponsor has previously used the subclass 457 visa program or intends to.
Thirdly, as sponsors with Accredited status must supply templates of employment contracts or assignment letters as a part of their application, if there are significant changes in these documents during the sponsorship approval period, a new copy of the amended contract or assignment letter should be provided to DIBP. These policy changes are formally adopted from 14 October.
Changes to Processing Arrangements for 457 Visas
- Incomplete applications: DIBP has indicated that where applications are electronically filed without sufficient supporting documentation, they may refuse these applications without contacting the applicant or sponsor for further information. Emigra Worldwide thus strongly recommends that all possible supporting information be supplied prior to application filing, although indications are that leeway of up to ten (10) days will be given to provide necessary items.
Requests for priority processing: DIBP has stressed that where a strong case exists for priority processing, a response will be sent within forty-eight (48) hours but if it is not considered that a strong case exists, no response will be sent. DIBP relayed that there are a huge volume of requests for priority processing and thus responding to all is not possible. Emigra Worldwide recommends, as always, planning well in advance wherever possible for moves to Australia and to seek priority processing only in critical situations. Such critical situations include, but are not limited to, where there is likely to be a significant negative impact on an Australian business, citizen or permanent resident, or where a processing delay will seriously and substantially negatively impact a person’s physical or mental wellbeing or will negatively impact a high profile project that will contribute significant economic or reputational benefit to Australia or where an application is being made for a 457 visa holder to change employers and there is a specific reason for urgency such as that person has been unable to work for a significant period and is suffering financial hardship. Requests for priority allocation should be supported by a statement and supporting evidence where available.
What you need to do
- It is important to note that there is a significant risk of refusal if an application is lodged without all information being available at time of application. It is recommended that all necessary supporting information be supplied prior to application filing.
- Clients should plan ahead to assess when start dates should be scheduled. Many priority processing request will not be accepted, particularly where urgency stems only from a lack of forward planning.
- Contact your Emigra Worldwide attorney or representative for further details on how these updates may impact you or your client.
The information above was provided by Emigra Worldwide, our global network partners, and relevant government authorities. The information herein is for general purposes only and not intended as advice for a particular matter. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work.