There are two significant reforms to the Migration Act 1958 (Cth) (‘Act’) and the Migration Regulations 1994 (Cth) (‘Regulations’) which the government has planned for the 2018 calendar year. Most significantly, the elimination of the Temporary Work (Skilled) Visa under subclass 457 of the Regulations (‘457 Visa’) will take place in March of this year with the government introducing a new visa in its place called the Temporary Short Stay visa (‘TSS Visa’), containing two very different streams.
The other significant change is the overhaul of the partner visa application process, which is scheduled to take place near the beginning of the financial year, subject to the government passing its associated bill, which is currently before the Senate.
Elimination of the 457 Visa Programme and the new TSS Visa
From March of this year, the 457 Visa programme is being officially abolished and replaced with the new TSS Visa programme. The two programmes are very similar and effectively, the government has moved to re-brand the 457 Visa programme and tinker around its edges by making certain reforms as detailed below.
The TSS visa will be made up of two streams, namely a Short-Term stream allowing for stays of up to two years and a Medium-Term stream allowing for stays of up to four years.
The length of visa will depend on the occupation nominated by the sponsoring employer. The visa application fees charged by the Department of Home Affairs (‘Department’) will be as follows:
- $1,150 for the 2 year visa; and
- $2,400 for the 4 year visa.
The Short-Term stream of the TSS Visa has been designed for Australian businesses to fill skill shortages with foreign workers on a limited and strictly temporary basis, where a suitably skilled Australian worker cannot be sourced. Occupations may be nominated from the Short Term Skilled Occupation List only. Importantly, a major change to the foreign worker programme is that the Short-Term stream of the TSS Visa is renewable only once and there is no transitionary pathway to permanent residency under the Employer Nomination Scheme or Regional Sponsored Migration Scheme. This represents a major departure from the 457 Visa programme, wherein applicants could renew their 457 Visas on an indefinite number of occasions irrespective of their nominated occupation and transition to permanent residency after working for the same employer for two years.
The Medium-Term stream of the TSS Visa has been designed for Australian businesses to fill skill shortages with foreign workers in a much more limited range of higher skill and in demand occupations, where a suitably skilled Australian worker cannot be sourced. Those with occupations on the Medium to Long Term Skilled Occupation List may apply for this stream of the TSS Visa which allows for transition to permanent residency once the visa holder has worked for their sponsoring employer for three years. Visa holders may also renew their visas an indefinite number of times subject to ongoing sponsorship and nomination requirements being in place.
For both streams, amendments to the Regulations will be effected to:
- increase work experience requirements;
- impose higher English language levels on applicants;
- impose mandatory Labour Market Testing unless an international obligation applies;
- set Australian market salary rates; and
- impose additional character, anti-discrimination and training requirements.
Further, for both streams of the TSS Visa, the training requirement has been significantly altered from how it operated under the 457 Visa programme. Instead of making a training donation to an industry training fund/educational scholarship fund or training its own workforce, employers nominating a worker for a TSS Visa will be required to pay a contribution to the Skilling Australians Fund. According to the Department, the contribution will be:
- payable in full at the time the worker is nominated;
- $1,200 per year or part year for small businesses (those with annual turnover of less than $10 million); and
- $1,800 per year or part year for other businesses[1].
Until March 2018, the 457 Visa programme will continue to operate. Should you require any assistance in preparing for the introduction of the TSS Visa programme, either as a foreign worker or an Australian sponsoring business, we encourage you to contact one of our expert immigration lawyers as soon as possible in order to be on the front foot of these pending changes and avoid any disruption to a business’s workforce.
Partner Visa Changes
Partner visa sponsorship changes were initially proposed to take effect as of 1 July 2017 however due to the Migration Amendment (Family Violence and other Measures) Bill 2016 (Cth) (‘Bill’) stalling in the Senate, they have not yet been passed or enacted. The new legislation proposes that partner visa sponsorship applications are lodged under stricter criteria and, most importantly, approved before a partner visa application can be lodged.
The process is expected to delay the lodgement of partner visa applications and require that a foreign partner, while onshore in Australia, remain on a valid substantive visa until a visa application for the partner visa can be lodged following sponsorship being granted to an Australian, or eligible New Zealand, citizen by the Department. Further, under the Bill, legal obligations are to be imposed on approved sponsors and sanctions may be imposed if such obligations are not met.
In light of the pending changes to the partner visa programme being delayed, we strongly recommend that prospective applicants and sponsors capitalise on the delay of the Bill and contact one of our expert immigration lawyers to prepare and lodge their sponsorship and partner visa applications prior to the abovementioned changes, which are now expected to take effect as of 1 July 2018.
[1] Fact sheet one: Reforms to Australia’s temporary employer sponsored skilled visa program — abolition and replacement of the subclass 457 visa; Department of Home Affairs, Commonwealth of Australia (https://www.homeaffairs.gov.au/WorkinginAustralia/Documents/abolition-replacement-457.pdf)
