It’s finally here. Commencing 18 March 2018, say goodbye to the Temporary Work (Skilled) visa (subclass 457) and hello to the Temporary Skill Shortage (TSS) visa (subclass 482). There are three streams to this new TSS 482 visa – short term stream, medium term stream and labour agreement stream. Also effective 18 March are some changes to the ENS and RSMS regulations. In our next edition we will delve into details and definitions.
Temporary Skill Shortage (TSS) 482 visa
Short term TSS visa
- For occupations the Short Term Skilled Occupation List (STSOL). Occupation must be on the list at the time of lodgement
- Visa valid for up to two years. Period of one or two years must be provided in the application
- Can be renewed onshore once (unless inconsistent with international trade obligations). If not eligible to renew onshore, renewals may be applied for offshore
- Same English language requirement as the 457 visa
- Genuine temporary entrant criterion
- No pathway to permanent residency
Medium term TSS visa
- For occupations on the Medium to Long Term Strategic Skills List (MLTSSL). Occupation must be on the list at the time of lodgement
- Visa valid for up to four years. Period of one, two, three or four years must be provided in the application
- No restriction on renewals while in Australia
- English language requirement of a minimum score of 5 for each component in IELTS (or its equivalent)
- Pathway to permanent residency after three years with other requirements fulfilled
Labour agreement TSS visa
- For sourcing of skilled overseas workers in accordance with a labour agreement with the Commonwealth, where there is a demonstrated need in the Australian labour market and other standard visa programs cannot fill the need
Applicant must have at least two years of relevant work experience. Relevant work experience is however, on the side of flexible, and will include experience in the context of the nominated occupation, experience in related roles and flexible working arrangements.
Non discriminatory workforce test
The Department of Home Affairs (DOHA) will take a closer examination of nominations from employers whose workforce is predominately made up of overseas workers. But don’t worry, the DOHA will take into account that certain businesses have legitimate reasons for a such a skewed workforce.
Terms and conditions same as Australian citizen or permanent resident
Whilst previously terms and conditions were compared on a whole, this condition now requires that separate comparisons are made for annual earnings, earnings and employment conditions other than earnings.
Annual Market Salary Rate
Market Salary Rate is now redefined under Annual Market Salary Rate (ASMR), which are the earnings an Australian citizen or permanent resident would earn for performing the equivalent work on a full time basis for a year in the same workplace at the same location. The ASMR, excluding any non monetary benefits, cannot be less than the Temporary Skilled Migration Income Threshold (TSMIT), unless a waiver exists. The TSMIT is currently AUD$53,9000.
Condition 8607 mimics the current Condition 8107 that affects 457 visa holders. Condition 8607 is a little more strict however; it will require TSS holders who wish to change occupations to have a new nomination visa granted before they begin work in a new occupation. This does not apply to changing employers.
Skilling Australia Fund (SAF)
Meeting Training Benchmarks, effective 18 March 2018, is no longer a requirement for new Standard Business Sponsorship (SBS) applicants or TSS nomination applications. Existing sponsors will still be required to meet their training obligations. The Bill regarding Skilling Australia Fund (SAF) scheme is yet to be passed, so watch or more news on this to follow.
The definition of adverse information has been amended to include any information relevant to a person’s suitability as a sponsor or nominator. The definition also includes a non-exhaustive reference to the provision of bogus documents or false or misleading information. It is a criterion at each stage of the application – SBS application, nomination application and visa application. Information on persons associated with the sponsor is also taken into account. These may include family, friends and associates.
Dependent children will now have their secondary TSS 482 visas valid up until the day before the visa holder’s 23rd birthday. This was previously up to their 21st birthday.
Employer Nomination Scheme (ENS) 186 and Regional Sponsored Migration Scheme (RSMS) 187 Changes
- The applicant is required to be aged 45 years or younger at the time of application unless exemptions exist
- Temporary Residence Transition (TRT) applicants are now required to have worked in their nominated position with their sponsor for three years in the four years prior to lodging a their application (transitional arrangements for those who have applied before 18 April 2017 exist)
- TRT applicants may be requested provide a positive skills assessment
- Applicant must hold or is eligible to hold any mandatory licensing or registration required at the time the nomination application is lodged
- Implements the ASMR framework of separately comparing annual earnings, earnings and employment conditions other than earnings, and TSMIT requirements
Direct Entry stream RSMS 187 Changes
- More occupations will be made available for RSMS 187 applicants
- Direct Entry stream 187 applicants are required to have at least three years of relevant work experience in a full time position at the required skill level
- Direct Entry stream 187 visa applications are required to demonstrate that the position cannot be filled by an Australian citizen or permanent resident who is either living in the same regional area or willing to move to that regional area
- Direct Entry stream 187 applications require endorsement from a Regional Certifying Body (RCB) that is responsible for the regional area where the position is located