Updated on 1/08/2019
With the abolition of the 457, what will change for employees and employers?
Since 18 March 2018, the subclass 457 Visa has been replaced by the TSS Visa (subclass 482). The government intends to control immigration through this visa.
We meet with Julie Tariel, migration agent (MARN 1464837) last week and she explained to us what has changed for employees and for employers.
What has changed for employees?
First, if you already have a 457 visa, nothing will change until its expiration date. Those changes affect you if you ask for this new TSS visa.
1. 2 years experience
One of the most important change will be the obligation to prove 2 years of experience post qualification in the position you are going to be nominated for: internship or apprenticeship will be considered as experience in few exceptions.
2. Nomination on short and medium occupation lists
Occupations eligible for nomination are listed on the Department of Home affairs (DOHA)’s website as short or medium/long term lists, which will now be updated twice a year January 1st and July 1st,. There is 2 kind of lists: Short-term Skilled Occupation List (STSOL) and Medium and Long-term Strategic Skills List (MLTSSL).
2.1 Short Term (STSOL):
- Occupations on the short-term list allow for an employee to be sponsored for up to 2 years than can be renewed once for a total of 4 years maximum, while onshore.
- Such employees cannot qualify for permanent residence by later transition or direct entry nomination by the sponsor/employer.
2.2 Medium/Long Term (MLTSSL):
- Occupations on the medium-to-long-term list allow for an employee to be sponsored for up to 4 years.
- Such employees may qualify for permanent residence after 3 years into their 4-year period. Their occupation will need to still be on the MLTSSL list to be eligible.
To sum up:
- 2 years of experience post qualification
- Short term list: no permanent residency which might be maximum twice 2 years
- Medium/long-term list: 4-year visa maximum and may ask for permanent residency after 3 years.
Important to know: The duration of the contract should match the nomination period
What has changed for employers?
1. Standard Business Sponsorship (SBS)
The process of obtaining a SBS agreement will largely remain as it was, with the exception of training evidence, which has been removed entirely from the sponsorship application requirements.
A business must become approved as sponsor in order to nominate a future TSS visa holder. To obtain a SBS agreement, the business must demonstrate lawful and active operation in Australia. This includes;
- Identifying the correct ABN to apply under;
- Registering the business name;
- Supplying Business Activity Statements (BAS); and
- Supplying financial statements.
2. The new sponsorship renewal process
Current business sponsors will be able to renew online 2 months before the expiry of a current SBS approval and receive approval within minutes except in the following cases:
- integrity concerns exist
- changing from accredited to SBS status
- overseas business sponsorships
Sponsors are encouraged to utilise these new arrangements and apply for renewal before their current sponsorship expires to ensure that any existing nomination applications can continue to be processed as normal and current issues around ‘linking and unlinking’ of applications are avoided. Your renewal will start at the end of your current SBS.
Note: From March 2018, sponsors will also be able to see the expiry date of their approved sponsorship application in ImmiAccount and will not need to contact the Department for this information if they failed to keep a record of this date. Information about sponsorship renewal will be available on the Department’s website.
Nomination application requirements have seen some changes made to them, details of which are set out below.
From Now, it’s ONE nomination, ONE Visa.
If you wish to transfer an applicant who holds a 457 or TSS visa, on the SAME occupation (same ANZSCO code) they are initially on, therefore a nomination only is required if you wish to transfer an applicant who holds a 457 or TSS visa, on a different occupation (different ANZSCO code) a nomination + a NEW visa applications are required
The duration of the contract should match the nomination period.
3.1 Labour Market Testing (LMT) for TSS
A company must demonstrate that the employee is a genuine need. This requires evidence that the sponsor has conducted Labour Market Testing. This might be, for example, having unsuccessfully advertised for a position. Evidence of market testing will need to be supplied as part of the application.
All occupations need to comply there is no longer any exceptions.
3.2. Skilling Australians Fund (SAF) update
The Bills to implement the SAF levy passed the House of Representatives on 12 February 2018, but are yet to pass the Senate. Policy settings are being finalised and may change. More details will be provided when available.
The SAF levy will be paid at the time of nomination. The ATO has advised that the levy will be tax deductible. The levy will be refunded where the nomination is refused or where an incorrect application is lodged and withdrawn. Further circumstances under which the levy may be refunded are being considered. The cost of the SAF levy cannot be passed on to the visa applicant and will be covered by the ‘paying for sponsorship’ regulations.
The Department of Education and Training will administer the funds and further information is available on that website on how the collected funds will be utilised.
IMPORTANT – Until then, sponsored employers have to keep comply with their training obligations (http://www.homeaffairs.gov.au/trav/work/empl/sponorship-obligations-monitoring-and-sanctions#) of the 457 visa, these are:
- Demonstration of having spent over the last 12 months an amount equal to 1% of wages paid to Australian resident employees for training; or
- Paying an amount of 2% of wages to a training institute, such as a TAFE.
3.3. Salary Level
The salary for the nominated position must meet 2 requirements:
- The remuneration must be above the Temporary Skilled Migration Income Threshold (TSMIT). This threshold is set by the DOHA each year and is currently $53,900 plus superannuation.
- The proposed salary must be within the market rate for the role. Market rate is demonstrated by comparable annual salaries advertised for similar roles in the Australian job market. This ensures that the applicant will be paid in line with Australian employees in comparable roles.
When considering the annual salary of the applicant for determining its compatibility with the current market salary rate, the term ‘base salary’ is replaced with the term ‘annual earnings’.
IMPORTANT: The Salary in the contract should match the advertisements salary
Short term visa (STSOL) Medium term visa (MLTSSL)
Primary (Nominee) $1,265.00 $2,645.00
Secondary (Partner) $1,265.00 $2,645.00
Secondary (Child) $320.00 $660.00
If you need guidance about those changes or you are wondering about visa application, a specific situation based on updated migration laws, please book a consultation on our website with Julie Tariel.
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