On 18 March 2018, the long-awaited TSS visa came into effect, replacing the 457 program. Whilst the sponsorship, nomination and visa application process is similar, new requirements have been introduced. Sponsors and visa applicants should be aware of these requirements to ensure they are eligible. We have summarised the key criteria as follows:
– Existing 457 sponsors may nominate staff under the TSS program.
– TSS nomination transfers are available for existing 457 visa holders. TSS nominations cannot be linked to undecided 457 visa applications.
– The 457 training benchmark no longer applies to some sponsorship applications. If you haven’t previously sponsored 457 visa holders, your business could be one of them. This is a complex matter which requires a case-by-case assessment.
– A New TSS training bill is set down to be debated by the Senate. If passed, a training levy will apply to each TSS nomination. Subject to the business’ payroll figure, $1,200 or $1,800 per year of sponsorship will be payable upfront e.g. $1,200 x 3 years = $3,600. The next senate sitting date is 8th May 2018. Until the bill is passed there is no training levy payable.
– Labour Market Testing – to demonstrate that there are no suitable Australians to fill the nominated position, sponsors are expected to publish at least 2 job advertisements in English on an Australian recruitment website, newspaper or radio available nationally. The advertisements should describe the position / provide a job title, name the sponsor or recruitment agency and state the annual earnings. Advertisements are required to be no more than 12 months old.
From 18 June 2018 onwards, advertisements will be required to be no older than 6 months.
– Australian Market Salary Rate – the salary and employment conditions of the nominee must be at least equivalent to those paid to an Australian employee. There is a preference to using Fair Work, industrial or transitional instruments as evidence. Salaries $65,000 and under will be particularly scrutinised. The minimum salary available for TSS is $53,900, same as 457 nominations. It is advisable to have your employment contract template reviewed by employment lawyers to ensure that they comply with National Employment Standards.
– Work experience – minimum 2 years employment experience is required in the nominated or a related occupation, in the past 5 years. The experience should be at the same skill level of the nominated occupation and full time. Part-time work will be counted on a pro rata basis.
– Applicants who are in Australia on Bridging visas A, B or C may lodge TSS applications without going offshore.
– For some trade occupations, skills assessment applications must be lodged prior to lodging a TSS application. This requirement only applies to some applicants and further advice should be sought regarding particular cases by a Registered Migration Agent.
– A refused TSS nomination triggers refusal of the corresponding visa application by default. In such cases both a nomination and visa applications must be re-lodged. This is a change from the 457 visa program where a new nomination could be lodged and attached to an undecided visa application. Making review applications at the Administrative Appeals Tribunal may be a less expensive alternative, where appropriate.
– TSS visa application charges in the Short-term stream are:
$1,150 for each adult and $290 for underage children. Medium-stream charges are $2,400 for adults and $600 for children.
– A Permanent Residency path is available to TSS visa holders in the Medium-term stream after 3 years of sponsored employment. The nominated occupation must also be on the Medium and Long-term Strategic Skills List (MLTSSL) at the time of lodgement of the Subclass 186 nomination application. Arrangements have been put in place to exempt some applicants from these requirements. If you lodged a 457 visa application prior to 19 April 2017, you may be exempted. We recommend that you seek advice from a Registered Migration Agent.
Skilled migration is evolving as Australia’s economic needs change. Businesses relying on overseas skills workers require strategic planning in order to continue benefiting from the international skills pool. Similarly, migrants require expert advice in these times of change to reach their goals.
The above analysis is based on an initial review of new legislation very recently released, and should not be treated as immigration assistance, immigration legal assistance nor legal advice. We disclaim liability in tort, equity or otherwise for any action (or lack of) taken based on the above content. If you need immigration assistance, please consult your Registered Migration Agent. If you need immigration legal assistance or legal advice, please consult your lawyer.
Navigating the Skilled Migration Labyrinth
On 17 November 2017, the Department of Immigration and Border Protection (DIBP) announced plans for further changes to temporary and permanent skilled migration. Some of these changes relate to Permanent Residence rights for 457 visa holders after March 2018. We have summarised them for our clients as follows:
Disclaimer: the information contained below is specific to the employment criterion of Temporary Transition Stream subclass 186 visa applications. It should not be solely relied on when clarifying visa eligibility. We recommend seeking advice from a Registered Migration Agent before making any decisions.
– I am a 457 visa holder. I applied and was granted my visa before 18 April 2017.
You will be eligible for Permanent Residency through the Employer Nomination Scheme (ENS) after completing 2 years of work in your nominated occupation as a 457 visa holder.
– I am a 457 visa holder. I applied before 18 April 2017 but my visa was granted after this date.
You will be eligible for Permanent Residency through the Employer Nomination Scheme after completing 2 years of work in your nominated occupation as a 457 visa holder. If your visa period is 2 years, you will be eligible for ENS on the very last day before your 457 visa ceases. It is therefore crucial that you lodge your ENS application correctly and on time.
– I am a 457 visa holder. I applied for my 457 visa after 18 April 2017 and my visa period is 4 years.
You will be eligible for Permanent Residency through the Employer Nomination Scheme after completing 3 years of working in your nominated occupation as a 457 visa holder.
– I am a 457 visa holder. I applied for my 457 visa after 18 April 2017 and my visa period is 2 years.
Before your 457 visa ceases, you will be able to apply for the new Temporary Skill Shortage (TSS) visa. We have requested clarification on further migration prospects in this scenario. We will publish further updates as soon as possible.
– I am not a 457 holder/applicant. I have been offered sponsorship by my employer. I am not sure whether I should apply for a 457 visa now or wait for the new TSS visa to become available in March 2018.
Provided that you and your employer can meet the requirements of the current 457 program, it may be wise to apply now, while you still have access to Permanent Residency through the ENS path. You should seek advice from a Registered Migration Agent.
Elan Rysher MARN: 1790958
For future updates follow us on Linkedin
On 17 November 2017, the Department of Immigration and Border Protection announced plans for further changes to temporary and permanent skilled migration. We are clarifying the meaning of these changes to our clients and will publish our recommendations soon. Stay tuned.