Effective 18 March 2018, the Temporary Skill Shortage (TSS) visa (subclass 482) was introduced and Temporary Work (Skilled) visa (subclass 457) program will not longer be accessible. As there have also been significant changes made to the Employer Nomination Scheme (ENS) visa (subclass 186) and Regional Sponsored Migration Scheme (RSMS) visa (subclass 187), new forms for the TSS, ENS and RSMS visas are now available.
New occupation lists for the TSS, ENS and RSMS visas have also been released, effective 18 March 2018. Please be reminded that if you are on the Short Term Skilled Occupation List (STSOL) you are only able to apply for a maximum validity on your TSS visa of 2 years. If you are on the Medium to Long Term Strategic Skills List (MLTSSL), you will be able to apply for up to 4 years validity on your TSS visa. The Short Term stream TSS may be renewed once onshore (and again offshore, if the Genuine Temporary Entrant (GTE) requirement is met and has no pathway to permanent residency. The Medium Term stream TSS may be renewed multiple times onshore and has a pathway to permanent residency if the holder has completely 3 years in the last 4 years before their application for a permanent visa in the nominates position with their sponsor. Regional employers will receive priority processing for TSS applications.
Only MLTSSL occupations are available for the ENS visa program. Occupation list requirements apply to Temporary Residence Transition (TRT) stream ENS and RSMS applicants, unless transitional arrangements are available. Additional occupations have been made available on the RSMS occupation list. The RSMS list will be further updated in July 2018. At this point, skills assessments may be required for all Direct Entry stream RSMS applicants, unless an exemption applies or the applicant holds the relevant Australian qualifications.
Updated occupation list: AILS Complete Guide to Occupation Lists (16 November 2020)
TSS Transitional arrangements
Transitional arrangements exist as previously published. Further arrangements now exist for 457 visa applications that are currently under Administrative Appeals Tribunal (AAT) review. If a nominated was approved, both the nomination and visa application was lodged before 18 March 2018, and the AAT review was lodged within 12 months of the nomination being approved, the approved nomination will not cease.
Applicants who are sponsored by an accredited sponsor need only a reference from their accredited sponsor of being of good character and having not been convicted of any criminal offences – they are not required to provide penal clearance from other countries. Australian Federal Police (AFP) clearances are still required.
TSS Labour Market Testing (LMT)
There will no longer be exemptions based on the skill level of the nominated occupation. Labour Market Testing (LMT) is to be required for all TSS applications unless international trade obligations apply. LMT must be completed in the 6 months prior to the lodgement of the nomination application. Applications lodged before 18 June 2018 will need to have completed the LMT requirement in the 12 months before the nomination application is lodged.
LMT evidence should show that the sponsor has advertised for a sufficient length of time and across a reasonable number of channels:
- Nominated position was advertised in Australia
- Advertisement was in English and included the title and job description, name of the approved sponsored or recruitment agency used by the sponsor, as well as proposed earnings for the position (unless the annual earnings would be greater than the Fair Worl High Income Threshold, which is currently at AUD$142,000)
- At least two advertisements were published
- On a national recruitment website such as jobactive.gov.au, or a prominent or professional recruitment website
- In national print media such as national newspapers or magazines that release a publication at least every month and is marketed throughout Australia
- On national radio
- Social media advertisements are not acceptable
TSS work experience requirements
Two years relevant work experience is now required for TSS applicants. As mentioned in our previous update, the Department of Home Affairs will view this a bit flexibly; work experience can be in the nominated occupation or a related field. Work experience needs to be at the required skill level.
Experience may be counted if:
- It is part of a Masters and/or PhD for occupations in the field of medical and research
- It occurs while studying through a formal arrangement (clinical/industry placement, internship or apprenticeship)
- It is part of a CRICOS registered course or outside a CRICOS registered course if the experience was at the skill level of the relevant occupation
TSS training requirements
From 18 March 2018, sponsors are no longer required to meet training benchmarks. The SAF bill has however, yet to be passed. We will be sure to send news your way on when it will come into effect. In the meantime, if approved as a sponsor, training obligations will need to be met for any future full year of their sponsorship where SAF arrangements are not in effect
- Sponsorship approved 1 April 2017. SAF implemented 1 April 2018. The sponsor would be required to meet the training benchmarks for the period between 1 April 2017 and 1 April 2018. After that time, there is no training obligation and only SAF payments must be made if a nomination is lodged.
- Sponsorship approved 2 February 2018. SAF implemented 1 April 2018. There is no training obligation and only SAF payments are required, as a full year of sponsorship has not passed before the SAF is implemented.
TRT Transitional arrangements
If the applicant held a 457 visa on 18 April 2018 or lodged a 457 visa application before 18 April 2017 which was subsequently granted, and continues to hold this visa or another (subsequent and can be with another employer) 457/TSS visa/related bridging visa at the time of application:
- Occupation list requirements will not apply
- Age requirement is less than 50 years with exemptions available
- Need only fulfil 2 years with their employer in their nominated occupation
All other applicants will need to adhere to the new requirements.
ENS & RSMS training requirements
For ENS and RSMS applications lodged on or after 18 March 2018, Direct Entry stream applications still need to meet training benchmark requirements. TRT stream nominations will also still need to meet training requirements although a more flexible approach will be taken when assessing compliance between July 2017 and July 2018
In our further articles we will pursue in greater detail the new legislation in relation to the new TSS 482 visa, ENS and RSMS changes. Need help? Give us a call!