Australia:
457 visa – 1 July 2017 changes
20 July 2017
Norton Rose Fulbright Australia
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Further to the Federal Government's announcement on April
19, 2017 about the abolition of the 457 visa program and the
proposed staggered changes until March 2018, the second stage of
the reforms to the 457 visa program were released on July 1,
2017.
457 visa applications can continue to be lodged until March
2018. From March 2018, prospective visa applicants must apply for
the Temporary Skilled Shortage visa.
Businesses should be aware of these changes to assist them with
better planning their workforce.
A summary of these changes is provided below:
|
What has changed? |
New/updated legislative instruments |
- Legislative instruments are legal documents that describe
particular rules of the subclass 457 visa program that are subject
to change from time to time by the Minister for Immigration and
Border Protection (DIBP).
- New/updated legislative instruments:
-
- IMMI 17/060 – specification of eligible occupations and
caveats (retrospective for nomination applications made on or after
July 1, 2017 and not finally determined before July 1, 2017)
- IMMI 17/057 – English language requirements, that is
tests, scores and exemptions (retrospective for nomination
applications made on or after July 1, 2017 and not finally
determined before July 1, 2017)
- IMMI 17/045 – training benchmarks and requirements
(updated)
|
Eligible
occupations |
- New transitional provisions cover all applications made on or
after July 1, 2017 and applications made and not finally determined
before July 1, 2017 regardless of whether the nomination
application was made before, on or after July 1, 2017
- Revised eligible occupations lists cover over 200 occupations
with 36 new eligible occupations – refer to legislative
instrument here
- Removed occupations will impact 457 and 186
Direct Entry Stream visa applications lodged on or after July 1,
2017
- Removed occupations will impact 457 visa or
nomination applications still being processed on July 1, 2017
– these applications will need to be withdrawn or they will
be refused
- Removed occupations will not impact current
457 visa holders unless a further 457 visa application is lodged or
there is a change in occupation or employer
- 12 Medium and Long-Term Strategic Skills List
(MLTSSL) occupations (previously unavailable)
added including, for example, biochemist, biotechnologist,
food technologist, microbiologist, life scientist, geophysicist
and petroleum engineer, in line with the recent lobbying
activities
- Eight MLTSSL occupations are now eligible for the 457 and 186
visa programs including certain engineers, stonemasons
and civil engineering technicians
- 16 Short Term Skilled Occupations List (STSOL)
occupations (previously unavailable) added including aeroplane and
helicopter pilots, flying instructors, and aircraft maintenance
positions, R&D Manager, IT/ICT positions, artistic director,
music directors and professionals, dress makers and tailors
- Two occupations moved from MLTSSL to STSOL – anaesthetist
and productions manager (mining)
- 23 occupations moved from STSOL to MLTSSL including certain
executive and management occupations, chemist, economist, certain
engineering professionals, environmental type occupations,
university lecturer and faculty head and certain IT/ICT
positions
- 22 occupations entirely removed from the list (nine of which
were previously eligible for 457 and 186 visa programs) including
university tutor, shipping type occupations, equipment hire
manager, psychotherapist, real estate and property management type
occupations
- Occupations on MLTSSL have a pathway to permanent residence
post March 2018
- 67 restricted occupations by caveats (refer below)
- Revised occupation lists are based on extensive consultation
with industry, labour market analysis and advice from Government
Departments
- Occupations lists are expected to be revised again on January
1, 2018
|
Visa validity |
- Four years from the date of visa grant if the occupation
is listed on the MLTSSL with unlimited renewals
and pathway to permanent residence
- Two years from the date of visa grant if the occupation is
not listed on the MLTSSL with one renewal (no
pathway to permanent residence)
- Visa validity policy now specifies that a 457 visa may be
granted for up to four years for occupations
listed on STSOL if requested by the sponsor and
required to meet international trade obligations (for example, Free
Trade Agreements, World Trade Organisation)
|
Occupational caveats (groups: work experience, regional
and occupation specific) |
- The purpose of the caveats is to minimise fraud and integrity
concerns
- Caveats provide additional detail about the permitted scope of
occupations beyond ANZSCO definition
- Caveats relate to position requirements (vs visa
applicant’s experience)
- 69 caveats in total; some have been revised, refer
here
- Caveats apply to 457 visa and nomination applications which
were lodged on or after July 1, 2017 or were lodged before July 1,
2017 but have not been determined
- If an occupation is now subject to a caveat, DIBP will assess
if the caveat applies in the particular circumstances of the
nominated position
- DIBP advises that pending applications lodged before July 1,
2017, which cannot meet the caveats, should be withdrawn or they
will be refused
- Current 457 visa holders are not impacted by the caveats
unless a further 457 visa application is lodged or
there is a change in occupation or employer
- Two years' full time relevant work experience in the same
or similar occupation if the occupation is subject to a work
experience caveat
- Caveats will now also apply to 186 employer nominated permanent
residence visas lodged on or after July 1, 2017
- Caveats are subject to regular review
|
English language |
- English language proficiency must be determined via approved
English language tests (unless exempted) - International English
Language Testing System (IELTS test) overall band
score is 5.0 with 4.5 for each test component; other approved
English tests are available
- English language tests are valid for three years from the date
of visa application
- English Language Salary Exemption Threshold
(ELSET) (AU$96,400) is no longer available for
applications lodged on or after July 1, 2017 however other
exemptions remain in place
- English language test results must be provided for applications
lodged on or after July 1, 2017 unless the
following exemptions apply:
-
- the visa applicant is an employee of an overseas
business/intra-corporate transferee from home/foreign entity to an
Australian entity and has a nominated base rate of
pay of minimum of AU$96,400; or
- certain passport country holders i.e. UK, US, Canada, New
Zealand, Republic of Ireland; or
- the visa applicant must have completed at least five years of
full-time study in a secondary or higher education institution
where instruction was conducted in English; or
- the nominated occupation will be performed at a diplomatic or
consular mission of another country or an office of the authorities
of Taiwan located in Australia; or
- applicants who meet licencing, registration or membership
requirements required to demonstrate English language
competency
|
Nominated salary |
- Data collection and matching with the Australian Taxation
Office to ensure payment of nominated salary
- Reporting of sponsors who are sanctioned for failing to
meet sponsorship obligations
- Changes to the nomination forms have been made requesting
additional details including number of employees and workforce
breakdown, labour market testing and international obligations
requirements, relationships between the nominee and the owners,
directors or principals of the business
|
International obligations |
- 1 July changes are being implemented in a manner consistent
with Australia’s international obligations
- Occupations subject to specific commitments in international
trade obligations are not impacted by changes to
the occupation lists
- By way of policy, visa periods of up to four years are
available where requested by the sponsor and required to meet
Australia’s international trade obligations
|
Police clearances/character test |
- Mandatory police clearance certificates (also known as penal
clearance certificates) for all visa applications lodged on or
after July 1, 2017
- Must provide police certificates for each country lived in for
12 months or more, over the last 10 years (calculated immediately
before the time the visa application is lodged), since turning 16
years of age
- All recorded offences must be declared; if not, adverse effect
on application
- Character Statutory Declarations or Form 80 – Personal
particulars for character assessment may be requested in certain
circumstances
- Processing times will vary based on the country from which
police clearances are required; expedited processing may be
requested in certain circumstances
|
Skill assessments |
- For applications lodged on or after July 1, 2017, the
Department of Education and Training’s Trades Recognition
Australia (TRA) 457 skills assessment program has
been expanded to include additional nationalities for certain
trades
- Mandatory skills assessment also apply to program or project
administrator and specialist managers
- It is at the discretion of DIBP to request skill assessments
for any pending or new applications
|
Sponsorship requirements |
Accredited sponsors
- Criteria for sponsorship accreditation (which allows for
priority processing) has been expanded to include four distinct
categories of sponsors (1. Government agencies, 2. Australian
trusted traders, 3. low volume usage and high percentage of
Australia workers, and 4. high volume usage and medium percentage
of Australian workers) with required characteristics and
additional documentary evidence required for each
category
Training benchmarks for Australian
employees
- Training benchmarks have been updated with a view to clarifying
policy settings for the training benchmarks and requirements and to
address integrity concerns by amending types of applicable
expenditure that are to be included when calculating payroll
- A revised legislative instrument IMMI 17/045 will only apply to
nominations or standard business approvals lodged on or after July
1, 2017
- Sponsors who have been trading for 12 months or more must meet
one of the two benchmarks:
-
- Benchmark A – recent expenditure by the
business equivalent to two per cent of the payroll in
payments allocated to a training fund (i.e. industry training fund,
fund managed by a recognised industry body or a recognised
scholarship fund) that operates in the same/related industry of the
business. The legislative instrument clarifies which training funds
may be used and specifies that funds that offer commissions or
refunds for failed immigration applications do not meet the
requirements, OR
- Benchmark B – recent expenditure by the
business equivalent to one per cent of the payroll in the
provision of training to Australian employees related to the
purpose of the business
- Recent expenditure is defined as expenditure made in the
previous financial year or the previous 12 months
- The definition of ‘payroll’ has also been
clarified by the legislative instrument to include
‘specified payments’ or in the absence of
‘specified payments’ to consider total monetary values
of director’s salaries, fees and drawn payments or the actual
profit of the business
- Changes to sponsorship forms have been made requesting
additional details relating to trading, training, etc
|
Processing times
|
- Current standard processing times are 4-7 months due to
implementation of changes; priority processing may be requested
based on business critical requirements
- Improvements expected in August 2017
|
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