Subclass 457 visa abolished in Australia: first look at the new Subclass 482 visa | Pitt & Moore, Lawyers in Nelson
Subclass 457 visa abolished in Australia: first look at the new Subclass 482 visa
The long awaited and much debated overhaul of the Australian temporary skilled work regime has finally taken place.
On 18 March 2018, the Temporary Skills Shortage (subclass 482) visa replaced the subclass 457 visa as Australia’s temporary skilled work visa.
This means that after 18 March 2018, subclass 457 applications will no longer be accepted by the Australian Department of Home Affairs.
The new Temporary Skills Shortage visa program represents a considerable tightening to the rules for overseas workers being able to work in Australia. Thereby spelling out the Australian Government’s intention of ensuring that in the first instance jobs go to Australian citizen or permanent resident.
The Temporary Skills Shortage (TSS) visa allows approved employers (sponsors) to nominate approved positions from the occupation list for overseas workers to fill.
Among other things, the overseas workers must have the required skills, work experience and English to be granted the new Subclass 482 visa.
With a three stage process, the TSS visa has a similar process to the previous Subclass 457 visa.
The three stages of the TSS visa process are:
Stage 1: Sponsorship
All sponsorship applications lodged after 18 March 2018 will be approved for a period of five years. This is a positive change, as previously, if the sponsoring business was a start-up the sponsorship was only be valid for 18 months.
To renew sponsorship for businesses operating in Australia, the process is streamlined.
A dedicated sponsorship stream for Overseas Business Sponsors has been reinstated, allowing approval of businesses based overseas as a sponsor of TSS visas in order to assign a person to Australia to fulfil a contractual obligation or establish a new business presence in Australia.
Once sponsorship is approved, processing of the nomination can commence.
Stage 2: Nomination
Before a person can apply for a TSS visa, an approved sponsor must have lodged a nomination application which presents the nature of the position, the reason for employing a TSS visa holder/ applicant in the role, and the terms and conditions of employment. The visa can only be approved if the nomination application is approved.
The business nominates the occupation, and corresponding ANZSCO 6-digit code.
The nominated position must align and be consistent with the nature of the business.
Stage 3: Visa Application
The person nominated to work in the nominated position applies for the TSS visa.
The visa applicant needs to demonstrate to the Department of Home Affairs that they have the background to suit the nominated position and meet heath and character requirements.
The good news
Holders of Bridging Visas A,B or C
Visa applicants who hold a Bridging Visa A, B or C will be able eligible to submit an application for a Subclass 482 visa.
The dreaded training benchmarks are no longer being assessed as a criterion for sponsorship or nomination applications. However, until the date the new Skilling Australians Funds levy is implemented, compliance with training benchmarks may still need to be evidenced.
The exemptions to English language testing available in the 457 visa program have carried over to the TSS visa program, including the exemption based on five years’ education at secondary level or above conducted in English.
With respect to the exemption for positions with base salaries over $96,400, this is now only available where the visa applicant is entering Australia as an intra-corporate transfer.
TSS visa applicants must have at least two years’ full-time relevant work experience (or part-time equivalent) completed within the last five years.
Police Clearance Certificates
Accredited Sponsors are able to testify that their nominated applicants are of good character in lieu of providing a police clearance certificate.
The bad news
New Skilling Australians Fund levy will be payable at the time of the Temporary Skills Shortage Visa nomination. The amount of the levy will depend on the nominating business’ turnover.
Temporary Skills Shortage Visa nominations (and visas) will only be in 12-month blocks meaning that unlike the 457 visa, it will not be possible to obtain a 6 month or 18-month Temporary Skills Shortage visa
Tougher labour marketing testing requirements will be a feature of the Temporary Skills Shortage Visa.
Employer will need to demonstrate that there are no suitably qualified and experienced Australian citizen or permanent resident who can undertake the position on offer.
Current policy settings require the Labour Market Test to have been conducted within the 6 months immediately prior to lodging the nomination application, however the Senate has approved amendments to reduce this to 4 months. This amendment is still awaiting approval by the House of Representatives.
Occupations eligible for the TSS visa have been divided into three separate lists, the Short Term Skilled Occupation List, Medium and Long Term Strategic Skills List, and Regional Occupation List. For a nomination application to proceed, the nominated occupation must be eligible at the time the nomination application is lodged.
Caveats on Occupations
Caveats have been placed across a range of occupations on the Short Term Skilled Occupation List and Medium and Long Term Strategic Skills List.
If a position is subject of a caveat then the Subclass 482 visa application can be refused on this basis.
New Visa Condition 8607
This condition will require TSS visa holders to work only in the occupation for which they were last granted a TSS visa. The effect is that TSS visa holders who wish to change occupations will need to lodge both a new nomination and TSS visa application.
Non-monetary benefits such as accommodation, clothing, meals and travel are no longer considered when assessing whether the proposed remuneration for the visa holder meets the Temporary Migration Skilled Income Threshold.
Do you need help with a Sponsorship or TSS visa application?
At Pitt & Moore our Immigration Team has extensive experience in all areas of immigration.
We assist businesses of all sizes that are looking to sponsor and nominate skilled migrant workers.
Likewise, we assist foreign nationals with advice on their eligibility to meet the Subclass 482 visa criteria. So if you are considering your visa options, it pays to talk to an immigration lawyer for expert advice and the latest information.
Talk to us
If you’d like more information on this topic or any aspect of Australian immigration law, talk to Elly Fleming, Solicitor, Pitt & Moore.
Disclaimer: This article should not be used as a substitute for immigration/ legal advice tailored for your specific circumstances.