What has changed
The Department of Immigration & Border Protection has issued current processing times for subclass 457 visas. These processing times record the service standard for how long it takes until applications are assessed, rather than how long it takes to finalize the applications. Additionally, minor changes are being made to Training Benchmark policy, and clarifications of policy settings around “genuine position” have been issued.
Who is affected?
- All Australian employers nominating foreign employees for subclass 457 visas
What to expect
Processing time frames for subclass 457 visas, the most commonly-used visas for foreign employees relocating to Australia on a temporary basis, have become longer. The Department has issued a bulletin stating what the processing time frames are until an application is assessed.
Current processing times, as well as an explanation of processing functions, are provided in the table below. Note that cases may fall outside service standards if they require appropriate/necessary ongoing investigation and processing. Where there are urgent circumstances that require a quicker response/outcome, escalation is possible, but of course, providing a positive response is at the authority’s discretion.
|Processing Function||Working Days||Explanatory Comments|
|Initial Assessment||Forty (40)||
This is the first assessment of an application. If the application is assessment ready, the Department will seek to finalize the application. Note: Initial Assessments are prioritized by the Department, with cases shifted across the 457 processing network to keep allocation dates as closely aligned as possible across Australia.
|Case related emails||Five (5)||
The Department places a priority on responding to email enquiries quickly given that most communication with agents is now via email. Note: This does not include emailed responses to Request for Further Information (RFI) submitting documents (see below).
|RFIs – responses uploaded through ImmiAccount||Twenty-eight (28)||
Reducing this time frame is not as high priority as reducing the time taken to make Initial Assessments because feedback from 457 processing staff is that responses to RFIs are often provided in a series of separate uploads to ImmiAccount over the twenty-eight (28) day response period.
|RFIs – responses provided via email||Twenty-eight (28) and up to fifty-six (56)||
Providing supporting documents via ImmiAccount delivers processing efficiency; consequently, ImmiAccount users are given priority processing.
Over recent years, processing times have increased markedly. In practice, we at Emigra Worldwide find that some cases are assessed more quickly than the service standard and some more slowly. We also find that responses after RFIs can take more than twenty-eight (28) days. Our greater concern is that if we do want to push for quicker decisions, no responses to e-mails are received for five (5) business days, which makes it difficult to manage expectations. Also, the Department will not respond at all if they do not consider the matter urgent and if the application has not reached the published service standard as yet. Emigra Worldwide does lodge applications via ImmiAccount and provides further information when requested in the same way.
New policy guidelines on processing of subclass 457 visas and associated nominations are being issued from July 1, 2016.
The new policy guidelines will have some impact on how Departmental officers view nomination and visa applications. Within these new guidelines there will be revised guidance for officers on the following:
- To be approved as a Standard Business Sponsor, a business must show that it meets one (1) or the other of two (2) Training Benchmarks if it has been operating for more than twelve (12) months. Either it must
- show spending to the equivalent of 1% or more of payroll on training Australian citizens or residents or
- spend the equivalent of 2% or more into industry training funds.
In regards to how this is calculated, the Department must assess the payroll expenditure in the twelve (12) months prior to the application. The new policy clarifies that when providing evidence regarding recent expenditure on training and payroll, the evidence provided must cover the same twelve (12) month period. Under the new policy, this should be the twelve (12) months prior to lodgement of the application.
From July 1st, if the business is unable to provide this evidence over the immediate preceding twelve (12) month period, they may offer evidence from the most recent full financial year (July 1 – June 30) instead. This is irrespective of whether the applicant is seeking to meet benchmark A or B. The period being referenced must be made clear in the application.
- When lodging a nomination for a 457 visa, a business must satisfy the authority that the position is “genuine” having regard the nominated occupation, which is specified by providing an occupation code from the Australian and New Zealand Standard Classification of Occupations (“ANZSCO”). New guidelines from July 1 clarify that the ‘genuineness’ requirement does not equate to an assessment of whether or not the position is ‘needed’, but whether the position associated with the nominated occupation is genuine. That is, the position must exist and also be what it purports to be. It explains that officers may generally consider this requirement met on the basis of the certifications provided by the sponsor in their application unless there are doubts as to the veracity of these certifications or the intent behind the nomination. The guidelines explain that further assessment may be appropriate in the three scenarios outlined below. This is because in these scenarios, the nominated position may not actually exist, or while existing, may not be what has been presented in the nomination:
- there is information that suggests that the nominated position may have been created to secure a migration outcome for the nominee and/or any of their family members;
- the information provided in the nomination application, considered in the context of the sponsor’s business, suggests that the tasks of the position do not align, or at least substantially align, with the tasks of the nominated occupation as described in the ANZSCO; or
- the position does not appear to be consistent with the nature of the business.
- the size of the business does not appear to support the position such as where the turnover is low and there is doubt as to the ability to support an additional hiring
These changes in policy actually reflect the direction that the Department of Immigration & Border Protection was already going. Regarding the relevant period of time for the Training Benchmark assessment, it is welcome to have policy clarity. Regarding the genuine position criteria, there is ongoing industry concern that the Department is very interventionist in its interpretations of the duties of positions and whether or not they align with ANZSCO codes, with particular scrutiny noted in relation to Sales & Marketing and related positions.
What you need to do
- Companies should take into account the recent increase in processing times for the subclass 457 visas and plan accordingly.
- It is essential for position descriptions to be clear so that their correlation to the tasks of ANZSCO occupations can be demonstrated.
- 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.