The following is a list of various changes to the Subclass 457 visa program as of 1 July 2013.
English Language Requirement
All new and lodged but undecided applications are subject to new English language requirements, higher base salary threshold and new evidentiary requirements for nominations.
All 457 visa applicants are now required to sit for the IELTS English test and achieve a score of at least 5.0 for each of the four test components. The IELTS test must have been completed within 3 years prior to the date you lodge your application. Certain applicants are exempted if:
- They are offered a gross base salary excluding all deductions that is more than $96 400.
- They hold a passport from Canada, New Zealand, the Republic of Ireland, the United Kingdom or the United States of America.
- They have completed at least five years of continuous full-time study in a secondary or higher education institution taught in English.
New Temporary Skilled Migration Income Threshold (TSMIT)
The Temporary Skilled Migration Income Threshold (TSMIT) has increased to $53 900.
Skills Requirement
Visa applicants must now provide satisfactory evidence that they have the skills, qualifications or experience required to perform the duties of the nominated role. For the occupations of Project Administrator and Specialist Manager, applicants are now required to provide a mandatory formal skills assessment.
Sponsorship Obligations Strengthened
Sponsor’s obligations towards nominees have been strengthened. Sponsors:
- May not take or propose to take action to transfer the cost of sponsorship or nomination to the nominee;
- Must meet training commitments
- Must justify the number of positions sought to be filled within the sponsorship period of three years.
Labour Market Testing
Formal labour market testing will be introduced later in the year.
Ongoing requirement to train Australian citizens and permanent resident workers
It is no longer just a commitment but an ongoing and enforceable requirement for Sponsors to meet the training benchmarks in one of the following ways:
- recent payments by the business to an industry training fund to a value of at least 2 per cent of the payroll, or
- recent expenditure equivalent to 1 per cent of the payroll in the provision of training to Australian and permanent resident employees in the business.
Sponsors are obligated to keep records on training. When applying for a new sponsorship or varying the terms of their current sponsorship, existing and previous sponsors must also show that they continue to meet the benchmarks during the term of the sponsorship agreement.
Demonstrating a genuine skill need
It is necessary to demonstrate that the nominated position is genuine and that the applicants have skills, qualifications or experience required to perform the duties of the nominated role.
Indicating how many workers an employer will sponsor
Employers can now only sponsor the number of subclass 457 workers that was approved in their sponsorship application over the term of their sponsorship.
Skills assessments for generalist occupations
The assessment of generalist occupations has now been strengthened. Program and Project Administrator and Specialist Manager not elsewhere classified applicants must undertake a formal skills assessment.
Market salary rate assessment expanded to regional locality
The market salary rate provisions have now been expanded to apply beyond the particular workplace to that workplace’s regional locality. Where there is no equivalent Australian worker, the employer is still required to satisfy the Department that the terms and conditions of employment are appropriate for that location and industry.
Market salary rate assessment exemption lifted to $250 000
The market salary assessment exemption threshold has been increased to $250 000.
Employment must consist of a direct ˜employee-employer’ relationship
Employees must now be employed by their sponsor in a direct ’employee-employer’ relationship. Sponsors will now be required to keep a record of written contracts of employment with primary sponsored persons.
Sponsors are obligated to pay certain costs
Sponsors will be required to pay certain costs associated with becoming a sponsor and not pass these costs, in any form, onto a sponsored person.
English language requirement must be met when new nomination is lodged
If a subclass 457 visa holder who was previously exempted from the English language requirement because their annual earnings were above the specified threshold, is renominated at a salary level lower than the English Language Salary Exemption Threshold, the visa holder will be required to demonstrate that they either meet the English language requirement or that they are otherwise exempted.
Occupation based exemptions to the English language requirement are removed
Occupation based exemptions have now been removed. Other exemptions will remain unchanged including:
- a nominated salary that is over the English Language Salary Exemption Threshold (ELSET) amount
- a passport from Canada, United States of American , United Kingdom, Republic of Ireland and New Zealand, or
- have completed at least 5 consecutive years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English.
Definition of English language now aligned with the Employer Nomination Scheme
The English language requirement is now aligned with the Employer Nomination Scheme. Occupational English Test score of ‘B’ in each of the four test components will now also be accepted and the IELTS or OET must have been completed within 3 years prior to the date an application is lodged.
Restricted terms of sponsorship for start-up businesses
The term of sponsorship approval for start-up businesses has been amended to an initial 12 months and all subclass 457 visa holders sponsored by start-up businesses are limited to an initial 12 month visa.
Mandatory electronic lodgement
All subclass 457 sponsorship, nomination and visa applications must be lodged using the online facility. Sponsorship, nomination and visa applications associated with overseas business sponsors will now be processed in Australia.
Requiring visa holders to begin work within 90 days of arriving in Australia
It is now a part of visa condition 8107 that a Subclass 457 visa holder must commence work with their sponsor within 90 days of arriving in Australia.
Requiring mandatory registration, licensing or membership
It is now a requirement for Subclass 457 visa holders to have sought to obtain within 28 days any mandatory registration, licence or membership for their occupation in the state or territory they are employed.
Extend the period in which a visa holder can seek new sponsored employment
The time period for Subclass 457 holders to find a new sponsor or to depart Australia, if they cease employment with their sponsoring employer, is extended to 90 consecutive days.
Enshrining the kinds of sponsorship obligations which must be prescribed in the Migration Regulations
The Migration Act will require the Minister to take all reasonable steps to ensure that certain sponsorship obligations are prescribed by the Migration Regulations; thereby enshrining in the Migration Act the kinds of sponsorship obligations which must be made in the Migration Regulations.
Enhancing the enforcement framework to include enforceable undertakings between the Minister and a sponsor and former approved sponsor
Enforceable undertakings will be an additional enforcement option where there has been a failure by an approved sponsor or former approved sponsor to satisfy an applicable sponsorship obligation. An enforceable undertaking is a court-enforceable promise made between the Minister and a sponsor. This option might avoid substantial legal costs associated with litigation in the courts. They are designed to be flexible and secure compensation to restore harm resulting from contraventions of the obligation (eg payment to a worker to compensate for underpayments).
Fair Work Inspectors as Inspectors under the Migration Act and exercise of powers for Migration Act purposes
The Government’s capacity to monitor and investigate compliance with the temporary sponsored work visa program will be expanded by enabling Fair Work Inspectors to exercise powers for the purposes of the Migration Act. Fair Work Inspectors will investigate compliance with the sponsorship obligations to ensure workers are working in their nominated occupation and being paid market salary rates. The change will also extend powers to both DIAC and Fair Work inspectors to investigate a sponsor’s use of other temporary visas.