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.

From 1 July 2013, the Temporary Skilled Migration Income Threshold (TSMIT) for Subclass 457 visas will increase from $51,400 to $53,900.

From 1 July 2013, the English Language Salary Exemption Threshold for Subclass 457 visas will increase from $92,000 to $96,400.

From 1 July 2013, the nomination fee for Subclass 457 visas will increase from $85 to $330. The sponsorship fee will remain unchanged at $420.

The Government will introduce a new visa fee system “to ensure taxpayers are no longer subsidising visa applications”, and “the significant changes will include the introduction of a fee for dependants of visa applicants from July 2013”.

We are encouraging our clients to consider making applications before 1 July 2013 to avoid the likely huge influx of applications and possible processing delays.

The Government announced tougher penalties to unauthorised employment of non-citizen from 1 June 2013. There will be new non-fault civil penalty penalties for employers who allow an unlawful non-citizen to work, refer an unlawful person to a third person for work, allow a lawful non-citizen to work in breach of a work-related visa condition or refer a lawful non-citizen to a third person for work in breach of a work-related visa condition. Offending employers will be responsible regardless of whether they knew or were reckless about verifying the non-citizen’s work entitlements. Infringement notices can also be issued as an alternative to commencing civil penalty proceedings. The legislation will modify existing criminal offences for employers, increase liability of executive officers of corporate bodies involved in employing unlawful workers and provide new investigative powers to the Department of Immigration and Citizenship.

It is essential for Australian employers to be proactive in verifying the immigration status and work rights of all existing and prospective non-citizen workers to avoid the risk of sanctions.

It was announced in the federal budget that the application fees for Subclass 457 Temporary Work (Skilled) visas would almost double. From 1 July 2013, visa application fees will increase from $455 to $900, earning the Government an extra $47 million dollars in the next financial year.

The announcement did not mention the extent of increase (if any) for the Standard Business Sponsorship fee or nomination fees, which are currently at $420 and $85 respectively. It is likely that these fees will be at least subjected to the annual index to CPI from 1 July.

The increase in 457 visa fees will contribute to the funding of the Fair Work Ombudsman (FWO) in the monitoring of Standard Business Sponsors.

The FWO is a statutory office responsible for ensuring compliance with national workplace relations law. The FWO’s jurisdiction is set out in the Fair Work Act, and he operates independently of Government, making his own decisions about all investigations.

In March 2013, it was announced that the FWO would be given powers to investigate compliance with sponsorship obligations to ensure that subclass 457 workers are employed in their nominated occupation and are receiving market salary rates specified in their visa applications

Fair Work Inspectors have the power to enter business premises at any time during work hours and request to inspect any relevant documents or interview any person.

“Currently the Department has 34 active inspectors to investigate sponsors’ compliance with the sponsorship obligations. In 2011-12 there were over 22 000 active sponsors of Subclass 457 visa holders. The FWO currently has over 300 appointed inspectors across the country. Their appointment as inspectors under the Migration Act 1958 (Migration Act) will substantially expand the sponsor monitoring inspectorate, and the government’s capacity to monitor the Subclass 457 program.”

The Commissioner of Taxation has issued a “Notice of Data Matching Program” advising that the Australia Taxation Office (ATO) will collect details on people who held Subclass 406, 410, 411, 415-424, 426-428, 442, 457, 462, 570-576 or 580 visas from 1 January 2012 to 30 June 2014 inclusive from the Department of Immigration and Citizenship for the 2012, 2013 and 2014 income years. These will be electronically matched and analysed with certain sections of ATO data holdings to identify potential fraud, and other non compliance with lodgment and payment obligations under taxation law. Records relating to approximately 1 million individuals who were granted visas under the above subclasses will be matched. The ATO may also provide information to assist the Department of Immigration and Citizenship to maintain the integrity of the student and temporary working visa programs.

In late March, the government overhauled the Visitor visa program and closed down a total of 9 subclasses of visas from new applications, including

Business (Short Stay) visa (Subclass 456)
Electronic Travel Authority (business – short validity) (subclass 977)
Electronic Travel Authority (business – long validity) (subclass 956).
A new temporary work (short stay activity) visa (subclass 400) was introduced on 23 March. It is specifically designed to permit short term work, and will replace the subclass 456 visa and its electronic equivalents, the Electronic Travel Authority (ETA) and evisitor.

The Minister announced on 23 February 2013 some new measures aimed at bolstering the Department of Immigration’s capacity to identify and prevent employer practices that are not in keeping with the criteria of the subclass 457 program.

The changes will include:

• the introduction of a genuineness criterion under which the department may refuse a nomination if the position does not fit within the scope of the activities of the business
• an increase in market salary exemption threshold from $180 000 to $250 000 to ensure that higher paid salary workers are not able to be undercut through the employment of overseas labour at a cheaper rate
• the removal of English language exemptions for certain positions. Many long-term 457 workers go on to apply for permanent residence, and this change will ensure that the 457 program requirements are brought into line with the permanent Employer Sponsored program which requires a vocational English ability. This change will benefit visa holders by ensuring that 457 visa holders, who have an ongoing position with their employer and want to apply for permanent residence in the long-run are not disadvantaged because of their language ability. Applicants who are nominated with a salary greater than $92 000 will continue to be exempted from the English language requirement
• enhanced regulatory powers for the department to ensure that the working conditions of sponsored visa holders meet Australian standards and that subclass 457 workers cannot be exploited or used to undercut local workers
• amendments to existing training benchmark provisions to clarify that an employer’s obligation to train Australians is ongoing and binding for the duration of their approved sponsorship, including for newly established business
• amendments to clarify that 457 workers may not be on-hired to an unrelated entity unless they are sponsored under a labour agreement
• amendments which will allow the department to refund a visa application fee in circumstances where an employer nomination has been withdrawn.

From 1 October 2012, nationals from China, India, Bhutan and Nepal who are already granted an Australian visa can travel to Australia without a visa label in their passport. Their visa information is held electronically by the Australian Government. Information on visa status and entitlements is available on the Visa Entitlement Verification Online (VEVO) system. Most Australian visa holders are no longer required to have visa labels as evidence of the grant of their visas.

The introduction of label-free processing is part of the Australian Government’s global program of label-free travel to Australia, to reduce processing time and improve security.

Minister for Immigration and Citizenship, Chris Bowen MP, announced new legislation setting out criminal and civil penalties against employers who hire illegal workers.

The legislation’s key amendments include:

• Amending the criminal offences and creating new non-fault civil penalty provisions and an infringement notice scheme for people who allow or refer an unlawful non-citizen to work, or allow or refer a lawful non-citizen to work in breach of a work-related visa condition;
• Creating statutory defences where reasonable steps are taken at reasonable times to verify a foreign national worker’s entitlement to work;
• Broadening the application of criminal offences and civil penalty provisions to hold a person liable for participating in an arrangement, or series of arrangements, that results in a foreign national working without lawful entitlement;
• Extending both criminal and civil liability, in certain circumstances, to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association’s committee of management; and
• Creating search warrant and notice to produce powers specifically to facilitate the investigation of suspected breaches of these offences and civil penalties.

From 3 September 2012, the Department of Immigration and Citizenship (DIAC) will change the delivery of immigration services in China. Two Australian Visa Application Centres (AVACs) will be introduced in Beijing and Shanghai. There will also be changes to the locations where certain visa applications are processed in China.

 

SkillSelect is an online service that enables skilled workers and business people interested in migrating to Australia to record their details to be considered for a skilled visa through an Expression of Interest (EOI). From 1 July 2012, all intending migrants interested in the points based skilled migration or business investment and innovation visa programs will be required to submit an EOI and receive an invitation in order to lodge a visa application.

According to DIAC’s Migration Blog over 5000 expressions of interest (EOIs) have been successfully submitted in SkillSelect since 1 July 2012.

According to the recently published report on the migration program 2011-12, the 2011-12 permanent migration program was delivered on target to the planning level of 185 000. The skilled stream outcome was 125 755 places. There were 16 471 places delivered under the highest priority Regional Sponsored Migration Scheme, with Western Australia accounting for 23.2 per cent of the outcome. State and territory sponsored visa classes were also delivered in record numbers, with the 22 247 places marking a 37.5 per cent increase on the previous year.

Seven of the top 10 source countries in Australia’s 2011-12 migration program are from Asia: India, China, the Philippines, Sri Lanka, Malaysia, the Republic of Korea and Vietnam. The family stream had a final outcome of 58 604 places, representing 31.7 per cent of the total migration program. The family stream allows Australians to unite with their close family and particularly with their partners and children.

19 July 2012 Source: Department of Immigration and Citizenship

 

The Federal Magistrates Court has handed down a decision against a Victorian 457 visa sponsor who underpaid a worker by $10 000. According to DIAC, this is the first time an action had been brought before the courts under the Migration Legislation Amendment (Worker Protection) Act 2008.

The 457 sponsor had failed two of the sponsorship obligations: the obligation to pay equivalent terms and conditions, and the obligation to keep appropriate pay records. The court issued a pecuniary penalty of $35 000 plus costs of almost $11 000.