Australia’s new Temporary Skill Shortage Visa Regulations
TSS Visa Update: Employer’s Guide to New Regulations
The Department of Immigration (Australia) officially concluded the subclass 457 visa program and replaced it with the new Temporary Skill Shortage (TSS) visa (subclass 482).
The TSS visa will feature a Short and Medium to the Long-term program, with applicants to both streams needing to satisfy additional new criteria, including:
Increased English language requirements.
Short-term applicants will require an International Language Testing score of 5 overall—or an equivalent—with a minimum score of 4.5 in each component.
Medium-term stream applicants will need a score of 5 overall, with a minimum score of 5 in each component.
Two year’s work experience relevant to the position that is being applied for.
The work experience obligation must also be met in addition to any ANZSCO requirements that the applicant is subject to.
Genuine Temporary Entrant requirement.
Applicants will be required to meet the “Genuine Temporary Entrant” requirement to demonstrate that they intend to undertake temporary work and not maintain a continuing residency in Australia.
Additional character checks, health checks and police clearances.
Applicants will be required to provide police clearance certificates where appropriate, as well as meeting the visa’s health criteria.
Employers will no longer be able to meet the health criteria by way of a health undertaking.
Employers will also be subject to new mandatory labour market testing, as well as new requirements pertaining to non-discriminatory workforce testing and minimum salary requirements.
The Department has indicated that exemptions will be made in instances where certain international trade obligations apply, with transitional arrangement also to be made available for some current 457 visa holders.
Other changes have also been made to the Employer Nomination Scheme (ENS) visa (subclass 186), and the Regional Sponsored Migration Scheme (RSMS) visa (subclass 187).
Sponsorship Charges and Market Testing Requirements
The fee structure for the sponsorship of TSS visa workers has currently been set to the following:
Standard Business Sponsorship.
TSS Visa Short-Term Stream.
TSS Visa Medium-Term Stream.
Labour Market Testing will now be a mandatory requirement for all TSS visa applications going forward.
This means that any nomination that was lodged with the Department on or after March 18 and before June 18 will be required to meet the labour market testing obligations that were applicable during the 12-month period immediately preceding the nomination’s lodgement.
All nominations that are made on or after June 18 will need to meet this requirement within the six-month period prior to its lodgement.
Workforce Testing and International Trade Exemptions
Businesses wishing to sponsor temporary migrant workers will now also be subjected to mandatory non-discriminatory workforce testing to ensure that local workers are not being passed over in favour of foreign nationals.
The testing will not be conducted on all TSS visa applicants, however the Department has said that further testing can be expected for companies with a workforce makeup that does not conform to the industry standard.
International trade obligations may provide businesses with some exemptions from the new TSS visa requirements if the nominated employee is from a World Trade Organisation (WTO) member country, or a country with whom Australia has an international treaty obligation.
The government is also expected to introduce the new Skilling Australians Fund (SAF) tax in the near future, although the legislation surrounding the levy has yet to officially finalised in Parliament.
The current Training Benchmark obligations will continue to apply to existing sponsors until further notice. However, new sponsors will be not be required to demonstrate compliance with the existing training benchmarks until the new levy is officially introduced.
Changes to Transitional Arrangements and the ENS and RSMS Program
The government has also introduced a series of new regulations which have mandated changes to the ENS (subclass 186) and RSMS (subclass 187) visa program.
Visa applicants to the ENS or RSMS program will now be required to satisfy the following revised criteria:
Minimum Salary Requirements.
Employers will be required to pay the annual market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT).
Applicants must now be below the maximum age of 45 at the time of their application, as opposed to the previous maximum age of 50.
Previous Work Experience
Prospective visa applicants must demonstrate that they have completed at least three years of work experience relevant to the role that they are applying for.
This requirement applies in addition to the ANZSCO work experience requirement for the nominated occupation.
The nominee’s occupation must be on the Medium to Long-term Strategic Skills List (MLTSSL), unless the business is in a regional area.
The RSMS List will remain unchanged at this stage, with possible amendments to be introduced in July 2018 upon completion of stakeholder consultation.
Migrant workers who are part of the Temporary Residence Transition stream will now become eligible for permanent residency after three years rather than two.
Foreign nationals who were part of the 457-visa program—or who had a 457 application pending on or before April 18, 2017—may also be eligible for certain transitional arrangements leading to permanent residency under the Temporary Residence Transition stream.
Any visa holders who transition from a 457 to a TSS visa will be automatically eligible to apply for the TSS program onshore with a limit of two application to be made from within Australia.
If 457 holders wish to transfer their employment to a new sponsor then they have the option of doing so by lodging a TSS visa nomination, although if this requires a change in occupation then it will necessitate the lodgement of a new TSS application.