Australia's Corporate Immigration Review 2018

Anne O’Donoghue, Immigration Solutions Lawyers

In this article, Anne O'Donoghue of Immigration Solutions Lawyers discusses legal developments the Australian market has faced over the last year. 

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From subclass 457 to temporary skill shortage (TSS) visa

Transitionary arrangements and future implications for corporate migration

Australia’s immigration law is governed by the Migration Act 1958 (Cth) (the Migration Act) and the Migration Regulations 1994 (Cth) (the Migration Regulations). These laws and regulations are arguably some of the most complex in the world and are subject to frequent amendment and reform in order to address the changing geopolitical and economic landscape of Australia. The Department of Immigration and Border Protection (DIBP) has now been replaced with the Department of Home Affairs, which is responsible for the implementation of Australia’s immigration law framework.

Australia’s Corporate Migration Programme has recently experienced a substantial shift in direction in the wake of recent reforms, which came into effect throughout 2017 and early 2018. These changes were announced as part of the Liberal government’s long-term plan to “strengthen the integrity and quality of Australia’s temporary and permanent sponsored skilled migration programmes”. The changes contain new safeguards that aim to ensure Australian employees are prioritised and not actively discriminated against.

The Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms Regulations 2018) came into effect on 18 March 2018. The legislation abolished the 457 visa and introduced the Temporary Skills Shortage (TSS) Visa (subclass 482). The TSS Visa enables employers to address labour shortages by bringing in genuinely skilled workers where they cannot source appropriately skilled Australian workers. It facilitates the targeted use of overseas workers to address temporary skills shortages, which ensures that Australian workers get priority.

Under these reforms, the occupation lists that underpin a range of skilled working visas were dramatically reduced with some 200 occupations removed from the lists. The Consolidated Sponsored Occupation List and the Skilled Occupations List have been updated and renamed as the Short-Term Skilled Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL) respectively. Additionally, caveats are placed on over 100 occupations to restrict their usage under the TSS and subclass 186 visa programmes. There are currently 23 different categories of caveats which are applied to various occupations. The caveats can impose a minimum base salary, place obligations on the employer, mandate that the position must be in a particular regional location in Australia, or stipulate what sort of tasks are eligible for sponsorship under the occupation.

The changes to the occupation lists have had, and will continue to have, an enormous impact on current and future visa applications. Occupations that have been removed from the lists are no longer eligible for employer-sponsored programmes, such as the subclass TSS and 186 visas, unless certain grandfathering laws apply. Constant revision and updates to the occupation lists aim to ensure that skilled working visa requirements are adequately framed to meet Australia’s economic needs and address relevant skills shortages.

How does the TSS visa operate?

There are now 509 occupations that are eligible for the TSS visa.

An overseas worker must be nominated by a sponsoring business and obtain a TSS visa before they can commence working in Australia. There are three streams for the TSS Visa:

  • The short-term stream;
  • The medium-term stream; and
  • The labour agreement stream.

The short-term stream allows employers to source overseas workers in occupations that fall on the STSOL for a maximum of two years (or four years, if an international trade obligation applies). Visa holders under the short-term stream will be eligible to renew this visa once only, while they are in Australia.

The medium-term stream allows employers to source overseas workers for occupations on the MLTSSL for up to four years. Visa holders under the medium-term stream will be eligible to apply for permanent residency under the subclass 186 programme, after three years if they meet the requisite criteria.

The labour agreement stream allows employers to source skilled overseas workers according to a labour agreement with the Commonwealth, where there is a demonstrable need that cannot be met in the Australia labour market and standard visa programmes are not available.

Similarly to the subclass 457 visa, there are three stages to the TSS visa:

  • step 1: sponsorship application by the employer;
  • step 2: nomination application for a skilled position by the employer; and
  • step 3: visa application by the proposed nominee.

These three steps must be completed in order; however, there is no need to wait for each application to be approved before proceeding with the next.

General eligibility requirements for the TSS:

There must be an eligible employer willing to sponsor and nominate the visa applicant, and they must have lodged sponsorship and nomination applications prior to the visa application being lodged.

The visa applicant must demonstrate at least two years’ full-time work experience in their nominated occupation within the past five years.

Certain visa applicants may be required to complete an assessment to confirm their skills; this depends on their occupation and country of passport.

The applicant must meet:

  • the English-language requirement for the stream;
  • the specific health requirements for this visa, along with those of any accompanying family members; and
  • the character requirements for this visa.

Age Limit

Like the subclass 457 visa, there is no age limit on this visa. However, applicants wishing to obtain permanent residency through the subclass 186 visa should note that there is an upper age limit of 45 at time of application for this visa.

Work experience criteria

All applicants are required to demonstrate that they have at least two years’ work experience in their nominated occupation or a closely related field. If the applicant has not been working in precisely their nominated occupation, they must have been performing tasks at the same skill level in a related field.

The work experience should have been undertaken on a full-time basis within the past five years. Equivalent part-time work may be considered if the applicant’s experience and skills are relevant and current; however, it should be noted that causal employment will not count.

There is some flexibility in place to cater for certain industries to allow some periods of training or study to count towards this period of time. For example:

as part of a master’s degree or a PhD for relevant occupations in medicine and research; or while studying through a formal arrangement (eg, a clinical or industry placement, internship or apprenticeship) that is undertaken:

  • as part of a CRICOS-registered course of study where it is relevant to the occupation (eg, for medical practitioners, experience gained through internships or the final year of medical training, including periods of clinical placements or the internship components of the Professional Year programme); or
  • outside a CRICOS-registered course of study undertaken at the skill level of the relevant occupation.

Mandatory skills assessment criteria

Certain applicants are required to complete a skills assessment as part of the primary criteria for the TSS Visa. Applicants who are so required must have commenced the skills assessment process prior to application; to avoid processing delays the Department of Home Affairs has advised that these assessments should be completed and finalised prior to application.

Where to apply

You can apply for this visa either outside or inside Australia. If you are applying for the visa inside Australia, you must hold either: a substantive visa; or a Bridging A (subclass 010), Bridging B (subclass 020) or Bridging C (subclass 030) visa.

Transitionary arrangements for subclass 457 visa holders

The Department of Home Affairs has announced that transitional arrangements are in place to facilitate individuals who held or applied for subclass 457 visas prior to the changes.

Any 457 visa holders who lodged an application for permanent residency under the subclass 186 visa scheme prior to 18 March 2018 will be processed under the old rules. This will mean that occupations on both the STSOL and MLTSSL may lead to permanent residency, and applicants who are applying under the transitional stream need to have worked for only two years.

Subclass 457 visa holders, or visa applicants who were granted or applied for their visas prior to 18 April 2017, are still eligible for permanent residency under the previous legislation thanks to grandfathering schemes that were brought in to assist existing visa holders (see chart below). Subclass 457 visa holders who have worked for their sponsoring employer for a period of at least two years may be eligible to apply for permanent residency under the subclass 186 (TRT) stream. Time spent on an eligible 457 visa or TSS visa and/or any time spent on an associated bridging visa may be counted towards the two-year threshold.

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