Date: Thursday 26 July / Thursday 27 July Time: 6:00 PM (EST) / 8:00 AM (AEST) Our thanks to today s sponsor:
The New Temporary Skill Shortage (TSS) Visa What You Need to Know
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Today s Presenters Sasko Markovski Partner Fragomen Charles Johanes Special Counsel Fragomen
AGENDA 1. Sponsorship 2. New TSS requirements 3. Labour Market Testing 4. Skilling Australians Fund Levy 5. Permanent Residence 6. Alternative visa options 7. Key Considerations A Ten Point Plan for TSS 8. Q&A
TIMELINE OF REFORMS 19 April 2017 1 July 2017 March 2018 By end Sept 2018 Government announces reform agenda Change to occupation lists: Short Term Skilled Occupation List - STSOL (2 years visa period) Medium to Long Term Strategic Skilled Occupation List - MLTSSL (4 years visa period) Introduction of caveats Further tightening of 457 settings Mandatory police clearances for 457 visas Further revision of STSOL / MLTSSL Changes to employer sponsored permanent residence Reduction in age limit from 50 to 45 Direct Entry nominations Increased English required for Temporary Residence Transition stream Temporary Skill Shortage (TSS) visa replaces 457 visa New LMT settings introduced Permanent residency eligibility period extends from 2 to 3 years Maximum age of 45 for all ENS/RSMS visas Final tranche of reforms Introduction of Training Levy Further tightening of LMT criteria Publication of sponsors who fail to meet sponsorship obligations
SPONSORSHIP
SPONSORSHIP UNDER TSS Existing sponsorships continue to be valid under TSS New sponsorship applications (including renewals) do not require training information Renewal applications require a certification that the business has complied with all of its sponsorship obligations Approval period is 5 years Apply for Accredited Sponsorship where eligible: o Priority processing of all applications (1-2 weeks vs 3-4 months +) o No-doc, or low-doc nomination requirements o Auto-approval of low risk nominations o Additional concessions e.g. advertising on own website for LMT, character references in lieu of police checks
SPONSORSHIP ACCREDITATION Characteristic Low risk sponsor low volume usage, high percentage of AU workers Low risk sponsor high volume usage, medium percentage of Australian workers Requirement At least 1 x 457/TSS sponsored in the last 2 years Australian workers comprise at least 85% of workforce SBS for at least 1 year Not a sole trader or partnership Annual turnover at least $4m in the last 2 years No adverse monitoring outcomes unless reasonable to disregard Nomination refusal rate <3% All 457/TSS visa holders engaged under a written contract that meets NES All employees are paid in accordance with an EA or internal salary table that reflects current market rates As per above category except: At least 10 x 457/TSS sponsored in the last 2 years Australian workers comprise at least 75% of workforce SBS for at least 2 years Additional documentation required includes: Template employment contract Internal salary tables covering nominated occupations, justification regarding market rate methodology
SPONSORSHIP COMPLIANCE New sponsorship obligation requiring notification of failure to commence work within 28 days Other existing obligations remain, for example: o Notifications relating to: Cessation of employment Change in work duties Change in contact details of the sponsor Appointment of company Director o Ensure employment remains in the nominated occupation o Payment of at least the approved guaranteed earnings and the prevailing market rate o Payment of return travel costs within 30 days of written request Increased focus on: o Compliance with employment laws o Non-discriminatory recruitment practices o New adverse information provisions
NEW TSS REQUIREMENTS
TSS VISA STREAMS SHORT-TERM STREAM (STSOL) Up to 2 years Up to 2 years MEDIUM-TERM STREAM (MLTSSL/ ROL) Up to 4 years with PR pathway TSS visas can only be requested / granted in 12 month blocks i.e. 1, 2, 3 or 4 year periods Visa period commences from date of grant
TSS NOMINATION KEY CRITERIA Occupation lists will continue to be reviewed every six months Labour Market Testing now applies in most cases Nominated role must be full-time Annual Market Salary Rate requirements: o o Cash component of market salary + nominee s earnings has to be at least TSMIT ($53,900pa) Consistent with Australian labour market conditions and no less favourable than the equivalent Australian
TSS VISA KEY CRITERIA 2 years full-time work experience in the nominated occupation or a related field New Genuine Temporary Entrant requirement for all Short-Term Stream applicants Slight increase in English language requirements for Medium-Term Stream Change to health requirements health waiver replaces health undertaking New application fees from 1 July 2018
INITIATING A TSS VISA LABOUR MARKET TESTING JOB DESCRIPTION SIGNED EMPLOYMENT CONTRACT / ASSIGNMENT LETTER MARKET SALARY JUSTIFICATION PASSPORT / NATIONALITY CV / RESUME
LABOUR MARKET TESTING
LABOUR MARKET TESTING REQUIREMENTS Testing of the Australian labour market to find a suitably qualified and experienced Australian, who is readily available to fill the position Must have occurred in the last 6 months (4 months once new legislation commences); and after any redundancies or retrenchments in the business of the sponsor (or an associated entity) in the same or similar occupation in the 4 months prior Nomination must be accompanied by evidence of any advertising and details of fees or expenses paid
LABOUR MARKET TESTING POLICY At least 2 English advertisements Title and job description Name of sponsor / agency Salary, unless >FWHIT LinkedIn now accepted Accredited sponsors own website Social media 21 consecutive days (28 days once new legislation passes) General policy exemptions: intracompany transfers; and internationally recognised record of exceptional achievement
LMT EXEMPTIONS Nationality Exemption: o o Citizen of PRC, Thailand or Japan Citizen / Permanent Resident of Chile, South Korea, NZ or Singapore Intra-Company Transfer Exemption: o Transferring from an associated entity located in: Chile South Kor PRC Malaysia Thailand Cambodia Laos NZ Japan Indonesia Brunei Myanmar Vietnam Philippines Singapore
LMT EXEMPTIONS Executive or Senior Manager Exemption Current employee of an associated entity in a WTO country; Nominated in an Executive or Senior Management occupation**; and Will be responsible for the entire or substantial part of the company s operations in Australia Renewal Exemption Citizen of WTO country and worked for sponsor/associated entity for at least 2 years continuously full-time
SKILLING AUSTRALIANS FUND LEVY
SAF LEVY Obligation relating to training expenditure remains until the Skilling Australians Fund (SAF) Levy is introduced SAF levy must be borne by sponsor Business turnover TSS visa Employer Sponsored Permanent Residence Less than $10 million $1,200 per 12 month visa period $3,000 once off $10 million or more $1,800 per 12 month visa period $5,000 once off Refund available only in limited circumstances: o o o visa is not granted due to health or character visa holder does not commence work visa holder leaves within first 12 months and there is more than 12 months left on the visa
PERMANENT RESIDENCE
NOMINATION REQUIREMENTS COMPLIANCE WITH EMPLOYMENT LAWS FINANCIAL CAPACITY MARKET SALARY JUSTIFICATION GENUINENESS & NEED TRAINING REQUIREMENTS
TEMPORARY RESIDENCE TRANSITION STREAM Must nominate occupation on Medium-Long Term Strategic Skills List Age limit of 45, subject to exemptions Qualifying period has been increased from 2 to 3 years Must have held a primary 457 visa or TSS visa in the Medium Term Stream for this period Age exemption for those who have worked for their employer for at least 3 years, earning the Fair Work High Income Threshold (currently $145,500pa) reduced from 4 years previously
TRANSITIONAL PROVISIONS Transitional provisions apply to those who as at 18 April 2017: o Held a 457 visa; or o Had applied for a 457 visa which was subsequently granted This cohort can apply under the old rules i.e. o Two year qualifying period for permanent residence is preserved o Do not need to nominate an occupation on the Medium-Long Term List o Age limit of 50 still applies, with same exemptions remaining available Transitional provisions expire 18 March 2022
DIRECT ENTRY STREAM Must nominate occupation on Medium-Long Term Strategic Skills List Age limit of 45, subject to limited exemptions For the Employer Nomination Scheme (non-regional) - formal skill assessment and 3 years work experience requirement still applies (unless exempt) Skill / Age exemption for NZ citizens / family who have worked in the nominated occupation for at least 2 out of the last 3 years before applying
ALTERNATIVE VISA OPTIONS
ALTERNATIVE VISA OPTIONS Short Term Work (400) Temporary Activity (408) Training (407) Other nonsponsored visas with work rights
NEW GLOBAL TALENT SCHEME Business criteria: o Recruitment policy gives first preference to Australian workers, including percentage of Australian workforce and training of Australians o Labour Market Testing o Good corporate citizen including immigration and employment laws o Annual turnover of at least $4m over the last 2 years (unless Start-up stream) Applicant and position criteria: o Qualifications commensurate with highly skilled role and at least 3 years work experience directly relevant to role o Capacity to pass on skills / develop Australians o Annual earnings at least FWHIT $145,400 (unless Start-up stream) Key features o Access up to 20 positions per year ( up to 5 for Start-up stream) o Access to 4 year TSS visas, transition to PR after 3 years o Age cap concessions
KEY CONSIDERATIONS A TEN POINT PLAN FOR TSS
ASSESSING THE IMPACT OF TSS 1. Consider Accredited Sponsorship 2. Impact on recruitment and hiring practices o LMT requirements o 2 year work experience requirement o Onshore renewal restriction / Genuine Temporary Entrant requirement o Restricted PR pathways 3. Broader workforce planning considerations o Graduates and developmental roles o Short-term stream restrictions, including current visa holders 4. Review employment contracts 5. Review remuneration structures
ASSESSING THE IMPACT OF TSS 6. Commercial impact o Higher application costs o SAF levy 7. Review internal immigration policies and procedures o Establish protocols with legal and risk teams 8. Ensure appropriate risk and compliance processes are in place o Sponsorship obligations o Right to work checks o Business Visitor compliance 9. Manage transitional applicants for permanent residence 10. Communications and training
https://www.fragomen.com/sites/australian-immigrationreforms-2018-what-you-need-know/about
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