NEWS Skilled Visa E-news September 2017

September E-newsletter

Welcome

Welcome to the first electronic edition of the Department of Immigration and Border Protection's Skilled Visa E-news.

This edition provides further clarification and advice on the recent policy reforms, as well as some upcoming changes to skilled visa programs. 

Occupations update

When are the next changes to the lists of eligible skilled occupations?

Consistent with the Australian Government's announcement, the lists of eligible skilled occupations will be reviewed every six months, with the next update expected in January 2018.

Caveats – bakers and pastry cooks

Positions in franchises or factories are not automatically excluded by the caveats on Bakers (ANZSCO 351111) and Pastry Cooks (ANZSCO 3511132).

Such positions will, however, be impacted by the caveat where a decision-maker assesses that the particular position involves mass or standardised production.

Under policy, factors that might be relevant to an assessment that the position is involved in mass or standardised production include:

  • the position is based in a franchise or factory
  • products are prepared in large quantities
  • premixed ingredients are used to prepare products
  • significant use of machinery is made to prepare products
  • assembly lines are in place as part of production
  • nominees are engaged in repetitive, limited tasks rather than exercising the full range of the specialist skills expected of the occupation
  • a limited range of products is available
  • products are delivered, frozen and/or pre-packaged, with preparation on-site being limited to thawing, heating and/or basic cooking
  • the sponsor employs minimal or no highly skilled staff - with short training programs utilised to train up staff to bake standardised products.

Under policy, factors that might be relevant to an assessment that the position is not involved in mass or standardised production include:

  • the position is based in a specialist bakery
  • how the business is marketed to the public
  • a comprehensive range of products is available in retail quantities sold directly to consumers
  • there is a focus on organic, specialty, artisan or high end products
  • baked products are handmade and made from scratch
  • the sponsor employs a number of highly skilled and qualified bakery staff, with specific skill requirements for the position and significant work experience required
  • if wholesale element to business, products are distributed to leading cafes, restaurants or speciality food stores, as opposed to supermarkets.

Note: The subclass 457 Nominations Procedural Instructions (PI) will be updated for December/January with the above advice.

Training benchmarks

Additional information to address frequently asked questions regarding the 1 July 2017 changes to training benchmarks is provided below.

Note: as previously advised, the Department will take a flexible approach when assessing training benchmark compliance during the period between July 2017 and March 2018 where companies continue to meet the spirit of the training requirement. It is understood that some companies might need time to adjust to the new arrangements and update their arrangements for training Australians.

Sub-contractors and training benchmarks

Post 1 July 2017, as per previous policy arrangements, if payments to contractors are included as payroll expenditure, any eligible training expenditure in respect of the contractors might be counted towards meeting Training Benchmark B.

Training undertaken by principals in the business of their family members

Training undertaken by persons who are principals in the business, or their family members, is excluded as per the new instrument (IMMI 17/045).

It has been brought to attention that there is a slight difference in how the instrument and PI are worded. Work is in progress to update the subclass 457 Sponsorships PI accordingly.

Franchises

If training is provided by a franchise head office and a proportion of the franchise fee is for this training, then it would need to be demonstrated that the training meets one or more of the applicable expenditures outlined in the instrument in order to count towards Training Benchmark B. If this is the case, as previously, the applicant will need to show exactly what percentage of the franchise fee is attributed to training. Officers cannot count the whole franchise fee or accept an estimate of the training component. Some evidence from the franchisor confirming the actual percentage would be required in such instances.

Permanent visa update

Lodgement of incomplete applications

Following the recent reforms announced by the Government, there was an increase in the lodgement of incomplete permanent skilled applications.

Agents are reminded that lodging incomplete applications can be detrimental to applicants as the Department is not compelled to request further information prior to making a decision on an application. Informing the Department post-lodgement that the application is incomplete will not necessarily result in a request for further information.

To ensure that an application can be processed as quickly as possible, all required supporting documents should be provided and attached to applications via ImmiAccount at the time of lodgement. Guidance regarding required supporting documentation is available via the subclass specific checklists on the Department's website.

Allocation time frames

Generally, permanent skilled applications will be allocated in order date of lodgement. However from time to time the Department will allocate newer applications for assessment for pipeline management purposes. This is likely to continue in future to help with efficient management of the substantial on-hand caseload and the identified increase in low integrity applications.

Important: agents should not assume that they have months to provide supporting documentation. Applications should be complete at time of lodgement.

Impact of recent occupation list changes

General advice about how 18 April and 1 July 2017 changes to the list of eligible skilled occupations impact applications on the pipeline is available on the Department's website.

Agents are reminded that these changes do not impact applications in the Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (ENS) or Regional Skilled Migration Scheme (RSMS) visa programs. This is because eligibility is based on the nominee's subclass 457 history, not whether or not their occupation is 'on the list'.

In terms of ENS Direct Entry (DE) applications:

  • If a nomination application was lodged before 19 April or 1 July 2017 respectively, the list of eligible skilled occupations that was in place at the time of lodgement will still apply to this application. Any related visa application (containing an occupation that has been 'removed from the list' post lodgement of the nomination) can also still be approved, where other requirements are met.

  • Where a nomination application was received after an occupation was removed from the list, the applicant will not be assessed and the nominator will be offered the chance to withdraw. The same will occur for any related visa applications. If no withdrawal, the Department will move to a refusal decision.

Occupations available for RSMS DE are currently unchanged.

457 update

Reminder regarding evidence of LMT

As advised in the last newsletter, nomination applications lodged on or after 1 October 2017, are required to provide additional evidence under policy in order to satisfy the Labour Market Testing (LMT) requirement (where required) – that is:

  • a copy of relevant advertisement(s)*; and
  • if fees were paid, receipt for any fees paid.

The current Domestic Recruitment Table (DRT) will no longer be accepted as sufficient evidence under policy of having tested the Australian labour market – and hence, that there is no suitably qualified and experienced Australian citizen, Australian permanent resident or eligible temporary visa holder readily available to fill the nominated position.

The Department's website has been updated to reflect this change – see Evidence of LMT.

*Note:

  • copies of advertisement(s) referenced in the nomination form must be provided.
  • if a similar advertisment was placed in multiple media formats, only one copy of the advertisement is required to show the department the content that is being published.

Reminder regarding 'grace period'

Agents are reminded the 'grace period' for nomination applications affected by occupational caveats or the removal of occupations from the eligibility list ceased on 1 September 2017. As a result, for applications lodged on or after this date, delegates will proceed straight to refusal where an occupation is no longer available under the subclass 457 program, unless natural justice requirements apply. That is, the Department will no longer offer applicant's the opportunity to withdraw their application and seek a refund. 

English requirements

As of 1 July 2017, subclass 457 visa applicants are exempt from English testing if they:

  • are employed by a company operating an established business overseas; and
  • are nominated by this company or an associated entity of that company; and
  • will receive a base rate of pay of at least AUD $96,400.

Applicants who meet the above requirements are exempt, regardless of whether they are sponsored by an Australian business or an overseas business.

Associated entity is as per the definition in the Migration Regulations – that is, the same definition as in Section 50AAA of the Corporations Act 2001.

Note: this exemption is not available to comply with an international trade obligation – rather it was implemented to reduce the impact of the recent removal of the English Language Skilled English Exemption (ELSET) on global businesses.

Contract must match employment period

Agents are reminded to ensure that they attach a signed employment contract to nomination applications in ImmiAccount.  This contract needs to cover a period that is consistent with the employment period requested by the sponsor. If it is for a shorter period you will be asked to provide a revised contract or be notified that only a visa period consistent with the contract available will be granted.

Note: an 'ongoing' contract is acceptable for a two/four year visa to be granted.

Subclass 457 visas and international trade obligations (ITOs)

The Department is currently receiving a high volume of queries around how ITOs apply in the context of visa grant periods and the interpretation of caveats.

The frequently asked questions below are designed to address commonly asked questions and define key terms that agents have raised questions about – noting that the subclass 457 form currently asks whether the nominee is an intra-company transfer, but policy guidelines around ITOs refer to the term intra-corporate transferee, and note that certain occupations are considered 'Executives and Senior Managers' for the purposes of the program.

What is the difference between an intra-corporate transferee and an intra-company transfer?

The term intra-company transfer simply refers to an employee that is transferring between two associated entities. An intra-corporate transferee is a term used in international trade agreements to refer to an intra-company transfer to which an international trade obligation applies. Obligations vary by trade agreement, this includes aspects relating to visa duration and labour market testing, and might be restricted to particular occupations, such as Executive and Senior Managers (see list of these occupations on our website).

For example, an employee transferring from their parent company in China to an associated entity in Australia is an intra-company transfer. This transfer is also described in a trade agreement (ChAFTA) and necessitates a number of conditions, including stipulations on visa duration and labour market testing. As a result, the employee in this scenario is an 'intra-corporate transferee'.

What is the difference between an independent executive and an intra-corporate transferee?

Independent executives and intra-corporate transferees are treated as separate categories of entrant in trade agreements and are entitled to different visa treatments. The difference is that unlike intra-corporate transferees, independent executives will be managing a business in Australia that might not exist in Australia yet. That is, they are coming to Australia to establish a new branch of their company.

Important:

  • Independent Executives are limited to the 'Executive or Senior Manager' occupations on the Department's website.
  • Independent Executives can only be sponsored by an overseas business.

I don't understand who can get access to a 4 year visa if their occupation is on the Short-term Skilled Occupation List (STSOL)?

If the nominee is NOT from China, Singapore or Thailand, a visa period of up to 4 years for STSOL occupations is only available if:

  • the nominee is a citizen or permanent resident of a World Trade Organisation (WTO) country; and
  • is an intra-corporate transferee; and
  • is nominated as an Executive or Senior Manager.

Nominees from the following countries also have access to a visa period of up to four years where they are an:

  • intra-corporate transferee – that is they work for an Australian associated entity of a sponsor that operates in China, Singapore or Thailand;
  • independent executive – that is they are in an Executive or Senior Manager occupation and are seeking to establish a branch in Australia of their business which operates in China or Thailand.

In addition, nominees from China who are nominated in the following occupations also have access to visa period of four years:

  • Other Sports Coach or Instructor (ANZSCO 452317) - specialisation Wushu martial arts only
  • Private Tutors and Teachers nec (ANZSCO 249299) – Mandarin language tutor only
  • Traditional Chinese Medicine (ANZSCO 252214)

Where a four year visa is granted on the basis of ITOs can they get access to a further four year visa?

Yes – but only if the nominee is from Singapore and an intra-corporate transferee.

What about Hong Kong (HK)?

Passport holders from Hong Kong (HK) are only eligible for a visa period of up to four years for occupations on the STSOL where they are an intra-corporate transferee nominated as an Executive or Senior Manager.

For a four year visa to be available, does the nominee have to continue to work for the overseas business?

No – they can still be an intra-corporate transferee if they are working for a sponsor in Australia, who is an associated entity of the overseas business.   

Can you explain how ITOs are relevant in the context of caveats?

Some caveats do not apply where the nominated position involves an intra-corporate transfer to which an ITO applies. For example, some caveats which require the nominated base salary to be at least a certain amount do not apply where the position involves an intra-corporate transfer to which an ITO applies.

This effectively means that a caveat which references an ITO does not apply if the nominee is:

  • an intra-corporate transferee (to Australia); and
  • is currently working for an overseas business that operates in a WTO country.

This is relevant in the context of the following occupations:

  • Chief Executive or Managing Director (ANZSCO 111111)
  • Corporate General Manager (ANZSCO 111211)
  • Corporate Services Manager (ANZSCO 132111)
  • Sales and Marketing Manager (ANZSCO 131112)
  • Supply and Distribution Manager (ANZSCO 133611)

Market salary rates

Agents are reminded to ensure that they are providing sufficient supporting documentation to demonstrate that market salary rate provisions are met and that the documentation required depends on whether there is an equivalent Australian worker performing the same work in the same location.

Note: As a result, it is important that you answer the following question in the nomination form correctly.



If there is an equivalent Australian worker and:

  • their workplace terms and conditions are based on an enterprise agreement or industrial award, you need to provide either of the following:
    • a copy of the agreement or instrument that applies to the nominated position
    • the name of the agreement or award as recorded by the Fair Work Commission where applicable

  • there is no relevant agreement or award, or you are paying your Australian employees above the award rate, you need to provide:
    • copies of relevant employment contracts and pay slips for other Australian citizen and/or permanent resident staff performing equivalent work

Important:

  • Do not provide generic market salary data/ salary surveys if there is an equivalent Australian worker.
  • If the nominee will be paid less than the equivalent Australian worker the nomination will be refused.

If there is no equivalent worker you need to provide evidence of the terms and conditions that would apply to an equivalent Australian worker. The onus is on you to provide sufficient information to satisfy the decision maker that you have determined the market salary rate using the method specified in the legislative instrument and that the nominee will be not be afforded less favourable conditions.

Such information must include a written statement outlining how you have used the submitted evidence to determine what you would pay an equivalent Australian worker. As well as, appropriate references to, or copies of, one or more of the following:

  • enterprise agreements that will apply
  • enterprise agreements for staff performing the equivalent work with other employers
  • applicable industrial award (that is the name of the award as recorded by the Fair Work Commission)
  • remuneration surveys
  • similar job vacancy advertisements
  • references to the Job Outlook
  • the Australian Bureau of Statistics survey of Employee Earnings and Hours
  • advice from employer associations and unions.

Important:

  • Ensure that supporting evidence is clearly identified and explained in your written statement.
  • If you provide vague, unlabelled salary surveys and do not explain how you have determined the market salary rate your nomination could be refused.
  • Where there is a difference between the market salary rate determined and the proposed salary of the nominee you must explain why.
  • If the market salary rate is a 'range', you must explain why the particular salary to be paid to the nominee has been selected (for example, they are performing the same work but have less experience).
  • If there is no equivalent Australian, at the very least, you must provide information in answer to the question to the application below.

It is recommended that you attach a comprehensive written statement outlining how you determined the market salary rate, particularly if:

  • the nominee's salary is AUD$65,000 or less;
  • the nominee's salary package contains significant allowances and/or non-monetary benefits; and
  • the market salary evidence presented reflects a wide range of salary data, with potentially inconsistent information.

Important: If the market salary data you present indicated that the nominee is being paid less than the market salary rate, the nomination will be refused unless the market salary information provided indicates a 'salary range' applies to the position and a comprehensive statement has been provided explaining why a salary at the lower end of the range will be awarded to the nominee.

Procedural instructions (PI) update

A revised version of the subclass 457 Nominations PI will be available on Legendcom on 1 October 2017 and then again in December/January 2018. The subclass 457 Sponsorships and Visa Applications PIs are expected to be updated in December 2017.

Understanding processing matters

Processing times update

Don't forget you can access recent information about global visa and citizenship processing times via the Department's website.

ENS and RSMS processing times have increased due to an increase in lodgement numbers since April 2017.

Processing times for complete subclass 457 applications are significantly shorter (up to 3 months) than processing times for incomplete applications (currently up to 10 months).

Subclass 457 processing teams are focussed on clearing the oldest applications on-hand, many of which were lodged incomplete prior to the introduction of caveats and the revised character provisions. This means that processing officers are having to contact applicants to provide an opportunity to address the revised provisions, and this is slowing down processing. Agents and clients can assist in speeding up processing times by not waiting to receive this request, but rather, by reviewing all their current applications and providing supplementary information in anticipation of that request. This will maximise the likelihood of the application being decision ready when it reaches the front of the processing queue.

Reminder regarding 457 priority processing requests

Priority processing requests will not be accepted unless a detailed business case with supporting evidence for why priority allocation should be considered is provided. This also applies where the position is of a very high salary and/or managerial in nature. A short email explaining the urgency will not suffice.

Priority processing will not be considered where:

  • processing delays are the only factor for your request
  • the application is still missing required information. This is particularly important for nomination applications which are missing employment contracts, and visa applications which are missing Health Insurance documentation for all visa applicants.

If you send through a request for priority processing to 457@border.gov.au please note that it is likely to take at least 2 business days to receive a response.

Please do not send repeat emails to 457 or 457 program management mailboxes during this time. Unnecessary or unsupported requests for priority processing or repeat emails, slow down processing for everyone.

Agents should be aware that the 457 mailbox receives approximately 4000 emails every month, including more than 1000 requests for priority processing.

Labour agreement update

When is a labour agreement appropriate?

Agents are reminded that labour agreements are not appropriate just because an occupation has been removed from the list or where only a 2 year subclass 457 visa grant is available. A strong business case, with supporting evidence (that is, a demonstrated labour market need that cannot be met from the local labour market) must be provided for a labour agreement request to be considered.  

When will labour agreements be updated for the Temporary Skill Shortage (TSS)?

The Department has commenced working through the industry template agreements to determine updates that are required to enable agreement holders to access the TSS visa program from March 2018 – starting with the Fishing Industry Labour Agreement. This will then be followed by a review of existing company specific agreements in order of priority based on length of the agreement and/or remaining ceilings.

Important:  

  • The above changes will include removal of the requirement for labour agreement sponsors to meet training benchmarks obligations – with all users of employer sponsored visa programs instead required to pay a contribution to the Skilling Australian Fund (SAF) at the time of lodging a nomination application from March 2018 onwards.
  • Once the new templates are ready, they will be used to execute any new agreements prior to March 2018. Businesses that have an existing labour agreement will also be contacted to seek their agreement to execute a revised agreement to cover the same period as their existing agreement

As previously advised, broader changes are generally not expected to existing industry templates at this time. However, the Department is considering:

  • Possible amendments to:
    • the Fishing and Snow Sports industry templates at the request of industry stakeholders
    • the On-hire industry template to ensure that program integrity is maintained
  • reviewing the Fine Dining (Restaurant) industry template following concerns raised by agents and industry stakeholders recently.

Note: Industry stakeholders will be contacted in the coming months as their particular industry template comes up for review to discuss the proposed changes.

March 2018 update

Advice on transitional provisions

Some agents continue to seek advice in relation to the permanent skilled transitional provisions for March 2018 (including TRT arrangements).

As previously advised, from March 2018, individuals who were existing subclass 457 visa holders (or subclass 457 applicants) as at 18 April 2017 will continue to have access to an employer sponsored pathway to permanent residence. Detailed information in relation to the transitional provisions is not, however, yet available.

Work is still in progress to provide further policy clarification regarding TRT transitional caseloads for March 2018. We hope to be able to provide additional advice on this in the next edition of the newsletter. The FAQs on the website will also be updated when this information is available.

Advice on labour market testing for March 2018

The Department appreciates that sponsors are keen to receive advance notice of labour market testing requirements for the TSS visa. This information is not yet available, but will be provided to agents in a subsequent edition of this newsletter once arrangements are confirmed.

However, agents are reminded that sponsors are only expected to use the standard subclass 457 or labour agreement program where the local labour market has been appropriately tested. Sponsors doing so are not expected to have any issues meeting TSS requirements.

Sponsors who wish to demonstrate clear compliance in this space are encouraged to:

  • advertise positions for a reasonable period prior to seeking to utilise overseas workers
  • ensure advertisements actually advertise the nominated position, including the terms and conditions that would be offered to the overseas worker (for example, the advertisement is not for a casual/PT position with salary of AUD$40,000, whereas the visa application employment contract indicates that the overseas worker will be paid AUD$55,000 for guaranteed full time hours)
  • ensure advertisements are able to be accessed nationally (for example have advertised on JobSearch or Seek, as opposed to a free online advertising service or a shop window).

New TSS forms for March 2018

A new TSS visa means new online forms. If you have suggestions about how the online forms could be improved, email us at: 457management@border.gov.au.

Identified agent issues

457 Visa application withdrawals following a nomination finalisation

457 program management has seen an increase in agents questioning a withdrawal decision for visa applications after a nomination withdrawal or refusal, despite the fact that the applicant has provided a "Yes" answer to the visa application form question: "If the application for sponsorship or nomination is refused or withdrawn, do you wish to withdraw your visa application?".  In these circumstances, the visa application will be withdrawn as soon as the nomination is withdrawn/refused and this withdrawal decision cannot be revisited. Please don't contact the Department in such instances going forward.

Reminder: Where a sponsorship application is refused, any linked nomination application will be 'otherwise finalised' when the sponsorship application is refused. This action cannot be revisited. Please don't contact the Department in such instances going forward.

Adding newborn children

Agents are requested to remind their clients with on hand visa applications to advise the Department as soon as children are born and provide a birth certificate in order for the child to be added to the application on departmental systems (regulation 2.08). For more information see: Including family members in your application.

Providing information

Agents are reminded again that all supporting documents should be provided via ImmiAccount not via email.

Important: agents who provide supporting documents as compressed files, or as links which redirect to 3rd party drop boxes, will not be accessed by the Department as these formats are not secure and are a potential IT security risk.

ImmiAccount hints and tips

Completing the 457 Subsequent Entrant (SE) online form

Some users seem to be confused by the question 'Give details of the associated primary visa applicant/holder' on page 2 of the subclass 457 subsequent entrant online form.

In answering this question, some users are entering the biodata details of the SE instead of those of the subclass 457 visa holder.

Where this occurs, the application is able to be submitted by the user, but it cannot be validly lodged. This is because the data in the SE applications does not match the information in departmental systems about the 457 visa holder, and prevents lodgement systems from being able to 'link' the applications.

Manual intervention by a departmental officer is required to correct the data error within the SE application form, this can only occur once authorisation to amend the application data has been provided by the authorised contact for the application.

To ensure that SE applications can be validly lodged without delay, please take care to enter the 457 visa holder's details on page 2 of the subsequent entrant form.