+61 2 8005 3420 admin@jobcapital.com.au

457 Visa Changes – 21 Answers To Those Burning Questions

Job Capital senior legal migration counsel received credible guidance from the Department of Immigration and Border Protection at the end of last week. This has enabled the answering of topical questions that many Registered Migration Agents (RMA’s), their clients and candidates have been asking.

Q&A Highlights – 1st 21 Questions

We have a complete list of the Q&A highlights that came from over 100 RMA’s meeting in a MIA forum to share the questions and concerns they have been hearing from the market since the announcements of change in April.

We have curated the list and will be offering up more posts segmenting the content over the coming weeks. Here they are and we hope they help your review, planning and decision making.

Disclaimer: Information correct 8 May 2017.  Excerpt parts from 457 Agent News May 2017 General Advice Only

Q1. What has already changed? 

A. As of 19 April 2017:

  1. the Consolidated Sponsored Occupation List (CSOL) has been replaced with the new Short-term Skilled Occupation List (STSOL);
  2. the Skilled Occupation List (SOL) has been replaced with the new Medium and Long-term Strategic Skills List (MLTSSL);
  3. there has been a reduction of 216 occupations available for subclass 457 visa programme applications;
  4. 59 caveats now apply to specified occupations – these either relate to work experience, regional location or are occupation specific; and
  5. new visa validity periods also apply under the standard subclass 457 programme with a maximum 2 year period available for occupations that are eligible for the subclass 457 programme but not on the new MLTSSL.
Q2. Can people still apply for subclass 457 visas?

A. Yes. The subclass 457 programme remains open until the new TSS visa comes into effect in March 2018. The occupation list has been restricted (19 April 2017) and integrity settings will be further tightened.

Q3. Why were occupations removed?

A. They were removed due to a wide range of factors including:

  1. immigration integrity concerns
  2. low usage over the last five years
  3. being reserved for Australian citizens (e.g. magistrate)
  4. based on advice from the Department of Employment.
Q4. Where can I find information about the caveats?

A. This is contained in the Schedule 1 MLTSSL and Schedule 2 STSOL lists.

Q5. Do the above changes have any impacts on existing subclass 457 visa holders?

A. No – unless they wish to change employers or positions, in which case a new nomination will need to be approved under the new arrangements. 

Note: This will include situations where due to business structure changes, an employer is required to lodge a new sponsorship application and is required to lodge new nomination applications to accommodate existing subclass 457 visa holders (unless they continue to work for an associated entity of an Australian sponsor).

A new nomination approval for an occupation listed on the STSOL will not result in reduction of the visa period already held by the visa holder.

Q6. What if we have a pending application where the occupation has been removed from the list – what happens now?

A. Once the application has reached the assessment stage, you will be contacted by the Department and given the opportunity to withdraw your application in writing. The letter will specify a period for required response (i.e. 14 days for nomination applications and 28 days for visa applications).

Alternatively, you can request a withdrawal in writing at any time and you will then be entitled to a refund of the application fee. If you do not withdraw your application, it will be refused.  This could have unintended consequences as far as s48 bar and possible Schedule 3 criteria being met for subsequent visa applications. Note:

  1. If seeking to withdraw a visa application, the Department ask that you complete and attach Form 1446 to your ImmiAccount where possible to facilitate faster processing.
  2. If seeking to withdraw a nomination application, the Department ask that you attach a written request to this effect to your ImmiAccount where possible to facilitate faster processing.
  3. Once a withdrawal has been actioned, the process to facilitate a refund will be initiated.

Applications which do not meet the requirements and are not withdrawn within the prescribed timeframes will be refused. No refund will be provided in such circumstances.

Q7. Can I get a refund for an approved nomination if a related visa application now cannot be approved?

A. Yes, if, a subclass 457 visa application is unable to be granted where the approved nomination is for an occupation that has been removed from the list, the sponsoring business can request that the nomination be withdrawn and request a refund of the nomination fee. 

Note:

  1. If seeking to withdraw your approved nomination, it has been requested by the Department that you utilise Form 1446 where possible to facilitate faster processing. The completed form should be emailed through to 457@border.gov.au not your ImmiAccount.
  2. Once a withdrawal has been actioned, the process to facilitate a refund will be initiated.
Q8. Can I get a refund of my sponsorship fee if my sponsorship application has been lodged and/or approved but I no longer wish to use the subclass 457 program due to the changes in occupation lists?

A. No – a refund is not available under the legislative framework.

Q9. What about situations where you have a pending application but a caveat now applies?

A. Once the application has reached the assessment stage, an officer will assess whether or not the caveat applies. If it does, the same withdrawal and refund options as noted above (Q7) will be made available to you – as the occupation is no longer ‘on the list’ in the circumstances specified. 

Note: where a caveat may apply, but the nomination has already been approved and it is only the visa application that is outstanding, the Department will assess caveats for visa applicants based on information already available on Departmental systems. They will not seek further information if there is no clear indication that a caveat applies.

Q10. Can I change the nominated occupation?

A. No – but you can withdraw and lodge a new nomination with a new occupation specified for the nominee. This may, however, raise concerns about the genuineness of the position – particularly if the new occupation is substantially different.

Q11. Can I change the nominated base salary for a position post lodgement of the nomination?

A. Yes – you can provide updated information to the Department via ImmiAccount, but you must also provide an updated contract of employment reflecting the new salary rate. This may, however, raise concerns about the genuineness of the position and whether the local labour market has been effectively tested.

Q12. What is the impact of 19 April 2017 changes on the subsequent dependent applications?

A. Nil – if the primary visa application has been granted, then subsequent dependent applicants can still be granted for the same period as the primary (subject to any 457 MOFU extension restrictions).

Q13. Do the changes impact cases that have a review application pending?

A. Yes – the AAT must make a decision based on the current framework – i.e. they are required to take into account recent occupation removals and caveats.

Q14. Will the reforms affect visa processing times?

A. Processing times are expected to slow down in the short term as Department staff become familiar with the new arrangements. Additional concurrent measures are, however, being considered for 1 July 2017 to streamline processing for lower risk sponsors – including possible further expansion of 457 accredited sponsor arrangements.

Q15. What are caveats?

A. Occupational caveats are additional requirements for certain occupations to demonstrate that the position you have nominated is appropriate for a skilled visa programme. Caveats do not prevent lodgement of all applications for that particular occupation. They limit use of the occupation in certain circumstances.

These caveats will be subject to regular review and may be added, altered or removed in future.

Q16. Where the caveat requires a business to have a turnover of at least $1M, what is the period in which $1M turnover is considered?

A. From 1 July 2017, the subclass 457 nomination form will collect information regarding the turnover of the business for the last financial year, which will be used to determine whether or not this caveat applies.

Up until this time, the Department will use existing information available on their systems if they indicate that this element of a caveat is met. Where such information is not available in Departmental systems, additional information will be sought from the sponsoring company. If this occurs, it is recommended that you provide financial information to cover the last financial year. Independently verifiable information should be provided where possible.

Q17. Can the $1M include turnover from related entities?

A. No – this relates to the sponsoring business only.

Q18. Can the $1M turnover figure include GST?

A. No.

Q19. Will occupational caveats apply to businesses that have traded for less than 12 months? If so, will projected turnover suffice where relevant?

A. Yes – they apply. In general, projected turnover will not suffice. As above, the turnover needs to be at least $1M for the last financial year. However, the Department will consider exceptional circumstances on a case by case basis.

Q20. Where the caveat requires a business to have a minimum of five employees, are there any restrictions on the type of employee (e.g. do they have to be full time, Australian)?

A. No – not at this stage. If the business declares that they have five employees and this is consistent with other information provided (e.g. structure chart for business etc.), then this will be accepted unless the Department has concerns that this is not the case. From 1 July 2017, the subclass 457 nomination form will ask companies to declare their total number of employees and how many are Australian/overseas workers, as per the current subclass 457 sponsorship form.

Q21. Where the caveats require at least two years of work experience, what does this mean?

A. This means that a successful candidate for the nominated position would be expected to have completed at least two years’ full time (as per the industry standard) work experience in the relevant occupation post qualification.

More To Come

We will post up the last section of Q&A’s to round out this two-part series and complete this share.

To start conversation with job capital give us a call on (+61) 02 80053420 or hit us up via our contact page. Whilst you are being awesome at what you do, all we think about is all things immigration and workforce solutions.