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Skilled visa news July 2017

Welcome Occupation list update


Welcome to the July 2017 edition of the Where can I find advice about
Department of Immigration and Border Protection’s the 1 July 2017 changes?
new skilled visa newsletter. This newsletter will
replace the previous ‘457 agents newsletter’ – For information on what changed with
ensuring that from now on agents receive advice the occupation lists see 1 July 2017
about upcoming changes to both the Temporary changes to skilled visa programs.
Work (Skilled) visa (subclass 457) and permanent Note: The List of eligible skilled occupations page, which
skilled visa programs. We hope to make future was updated on 1 July 2017, has been revised in response
editions available via the Industry Hub – with to feedback about the usability of these pages.
agents able to subscribe to the service, From this page, you can access the relevant legislative
and access individual articles that interest them. instruments that contain the list of eligible skilled
This edition provides further clarification and occupations for each specific visa program. Further
advice on the recent 1 July 2017 changes – improvements are planned to these pages but additional
including answers to frequently asked questions. feedback is welcome.

Information about the Government reforms ‘Caveats’ v ‘inapplicability conditions’


announced on 18 April 2017 in relation to the
The Department has traditionally used the word ‘caveat’ to
temporary and permanent skilled visas continues
refer to a restriction placed on a particular occupation that
to be available on the Department’s website,
remains on the list of eligible skilled occupations – with,
as well as more detailed advice on 1 July changes
for example, Cooks, Chefs and Café and Restaurant
to skilled visa programs and additional Questions
Managers subject to a ‘fast food’ caveat for a number of
and Answers about the recent and upcoming
years. The word ‘caveat’ has never, however, been
reforms.
specifically referenced in the relevant legislative instrument
Important: This newsletter is not a substitute for which uses a note or asterix (*) to indicate that a restriction
formal policy. The relevant document should always applied in the case of a particular occupation.
be consulted via LEGENDcom to ensure that you
Agents would be aware that the new 1 July 2017
have considered the most up to date information
instruments listing eligible occupations for the subclass 457
from the Department when advising your clients.
and Employer Nomination Scheme (ENS) presents such
Cathy Milfull caveats in the form of ‘inapplicability conditions’.
Director
Inapplicability conditions serve the same function.
457 Program Management
To avoid confusion during this significant time of change,
28 July 2017
departmental guidelines continue to refer to caveats.
Caveats’ and ‘inapplicability conditions’ are considered
equivalent expressions.
Are there exemptions to caveats?  Chief Executive/Managing Director (ANZSCO 111111)
 Corporate General Manager (ANZSCO 111211)
Exceptions cannot be made to the caveats imposed  Corporate Services Manager (ANZSCO 132111)
on occupations. This is because these caveats are  Sales & Marketing Manager (ANZSCO 131112)
included in a legislative instrument – that is, they are  Supply & Distribution Manager (ANZSCO 133611).
not policy only. For example, where the caveat
requires a base salary of $65,000, nomination For example, some caveats which require the nominated
and/or related visa applications cannot be approved base salary to be at least a certain amount, do not apply
where a lower salary is being offered to the where the position involves an Intra-Corporate Transfer
nominee. Note: some advice is provided below (ICT) to which an ITO applies.
regarding limited flexibility in terms of how a
This effectively means that a caveat which references an
particular caveat is interpreted.
ITO does not apply if the nominee is:
 an intra-corporate transferee (to Australia); and
Turnover &
 is currently working for an overseas business that
employee number operates in a WTO country.
caveats
Occupational caveats relating to ARBNs
Under policy, where a
turnover or employee number related caveat Foreign Registered companies operating in Australia (with
applies to a particular occupation, Departmental an ARBN) do not set up a separate legal entity in Australia.
officers may take into consideration broader The overseas company (with an ARBN) becomes a
circumstances when assessing these caveats, if standard business sponsor under the ‘business operating
the following characteristics are met: in Australia’ provisions just like an Australian business
 there is an overseas business that is starting does (i.e. they do not use the OBS provisions).
up a business in Australia [regardless of Consequently, if an overseas business (with an ARBN) is a
whether using Overseas Business Sponsor sponsor who is nominating a person, it is the turnover of
(OBS) provisions or not]; the overseas business (with an ARBN) that is used in
 the actual business sponsor does not meet the relation to the caveat. This also applies in the case of any
turnover and/or employee caveats in their own other related caveat matter.
right, but does meet any other caveats that
apply (e.g. base salary); Corporate Services Manager
 the overseas “parent company” would meet
the turnover/employee caveats; and The interim guidelines provided on 1 July 2017 for
 the sponsor has demonstrated that there are Corporate Services Manager (ANZSCO 132111) only
special circumstances which warrant a flexible listed the occupational caveat requirement relating to base
approach – e.g. project of particular salary. It did not, however, list the other caveats that apply
importance to Australia, economic benefit to regarding a minimum AUD 1M annual turnover and a
Australia, supports innovation agenda, parent minimum of 5 employees. This will be fixed when the 457
company has a long history of successful Nomination PI is updated for 1 October 2017.
business operations, support through
We apologise for any confusion.
state/territory/government.
If you believe the above circumstances apply to Refunds and caveats
your client, you should upload a written submission
requesting that the delegate take these factors into As outlined on the Department’s website, clients with
account in ImmiAccount. pipeline subclass 457 applications (i.e. those lodged before
a caveat came into effect), which are unable to meet
Caveats & international trade obligations caveat requirements, are being given the opportunity to
withdraw their application and seek a refund.
As agents will have noticed from the wording of
some caveats, some restrictions on the following In addition, for a short grace period, the Department is
occupations do not impact nominated positions providing access to withdrawal/refunds for impacted
where International Trade Obligations (ITOs) subclass 457 caveat applications that have been lodged
apply: after 1 July 2017.

Skilled visa news July 2017 | 2


During this grace period, the Department will contact What actually changed?
you once to provide you with the opportunity to Guidance previously contained in policy has been moved
comment and/or withdraw your client’s application. into the instrument. The instrument now provides greater
This will either be in the form of: clarity on what is ‘acceptable expenditure’, what
 a withdrawal letter, giving your client the option ‘expenditure periods’ will be applied, and more clearly
to withdraw, if the Department is satisfied that defines ‘payroll’.
a caveat applies; or The Q and As below provide
 an RFI, giving your client the option to provide more advice on what is
more information and/or withdraw, if the acceptable expenditure for
Department considers that the caveat is likely Training Benchmark B (TBB).
to apply.
Are the changes retrospective?
Note: your client can of course, at any time prior to
finalisation, provide additional information and/or No – Standard Business Sponsors (SBS) and ENS DE
choose to withdraw their application. applications that were lodged prior to 1 July 2017 will be
assessed against the previous instruments and policy,
Important: the above grace period will end on not the new instrument.
1 September 2017 with the Department
proceeding straight to refusal after that date Employers who lodged SBS applications and/or ENS DE
(unless natural justice requirements apply). nomination applications on or after 1 July 2017 will,
however, need to demonstrate ‘recent expenditure’
No such refunds operate in the context of ENS (i.e. expenditure incurred in the previous financial year or
applications. the previous 12 months) that meets Training Benchmark
A (TBA) or TBB.
1 July changes to How will the Department assess previous training

training benchmarks benchmarks compliance?


When assessing applicants that have previously been an
SBS against regulation 2.59(j) in the subclass 457 context,
Where can I find the training benchmark
or regulation 5.19(3)(f)(i), applicants will be assessed
requirements?
against the training requirements that applied during the
Training benchmark (TB) requirements are now period of their most recent approval as an SBS.
outlined in two separate instruments that apply to
relevant nominations and sponsorship applications Important: Such requirements may thus be different for
lodged on or after 1 July 2017: particular years of their sponsorship, depending on which
TB requirements were in place at the time.
 IMMI 17/074 – outlines TBs for the ENS Direct
Entry (DE) Stream (reg. 5.19(4)(h)(i)(B)(I)); Agents are, however, reminded, that both in the subclass
 IMMI 17/045 – outlines TBs for the subclass 457 and ENS TRT context, officers may consider whether
457 program that are relevant in the context of: it is reasonable to disregard any failure to comply with
o subclass 457 sponsorship applications TB requirements for a particular period.
(regulations 2.59(d) and 2.59(j), and
Under policy, where TB requirements have changed
equivalent variation regulations)
recently, officers may take a flexible approach –
o subclass 457 sponsorship obligations
considering whether the employer has met the intention
(regulation 2.87B); and
of the legislation and is committed to training Australians.
o the ENS Temporary Residence Transition
It is understood that it may take some time for employers
(TRT) stream (regulation 5.19(3)(f)(i)).
to put in place new arrangements to meet updated TB
requirements.

Skilled visa news July 2017 | 3


Decision-makers will consider applications on a related to the service/product provided by the
case-by-case basis. Agents are encouraged to applicant.
attach a written submission in ImmiAccount where
If, however, the applicant business is engaged by
they believe their client has met the intention of the
another business as a contractor or subcontractor,
TBs even if not strictly complying with them for a
payments made to the applicant by that business
limited period during the life of their most recent
do not count as payroll.
sponsorship.
Salary of graduates
Which benchmark needs to be met?
Expenditure involving payments to cover the salary of
Applicants still need to meet either TBA or TBB
Australian employees who:
(i.e. not both).
 have completed an undergraduate or higher degree in
What about start-ups? a university within the last 2 years; and
This hasn’t changed. If an applicant has been  are participating in a formal, structured graduate
lawfully operating in Australia and has been trading program for up to 2 years, or completing a professional
for less than 12 months, they are required to year following their graduation;
provide an auditable plan that clearly identifies how can be counted towards TBB. The current Sponsorship PI
they intend to meet either TBA or TBB. incorrectly refers to Australian employees who have
completed an undergraduate or higher degree in a university
What expenditure on training is relevant? within the last 365 days – this issue will be clarified in the
For TBB, expenditure on training that is not October 2017 PI. Apologies for any confusion.
relevant to the industry in which the business
operates is considered to be ‘inapplicable How long will these TB arrangements remain in place?
expenditure’. For instance, where evidence of the The new instruments will remain in place until March 2018,
purchase of an eLearning platform is provided with when TB requirements will cease with the introduction of
an SBS application — if the content of the the new Skilling Australians Fund (SAF) arrangements –
eLearning platform is not related to the purpose of see What is SAF? later in the newsletter.
the applicant’s business — it will not count towards
benchmark B, even though eLearning platforms
are ‘applicable expenditure’ in the instrument. Permanent visa update
What is a formal course of study? 1 July high income exemption changes
A formal course of study must be a structured As previously advised, the AUD 180,000 high
course. The course must: income exemption for English and Skill for the ENS
 be conducted by trained educators; (subclass 186) and Regional Sponsored Migration
 be a formal programme with learning Scheme (subclass 187) visa programs has been
outcomes and an assessment process; and
removed to strengthen the integrity of these visas
 not be otherwise excluded by ‘inapplicable
by ensuring that applicants have the required skills
expenditure’ as outlined in the relevant
instrument. and English language requirements irrespective of
salary.
An example of a formal course of study would be
an IT industry certification course, or university The Department will, however, continue to apply the
degree. exemption as in force before 1 July 2017 to applications
made prior to the 1 July 2017.
Do the payments made to contractors
(and sub-contractors) count as payroll? This is to ensure that clients with applications in
pre 1 July 2017 pipeline will not be negatively
Yes – payments made to contractors or impacted by the change – with time of application
subcontractors count as payroll, but only if work requirements applying at the time of decision.
provided by the contractor (and sub-contractors) is

Skilled visa news July 2017 | 4


For more information, see Clarifying changes to
employer sponsored permanent visas. 457 update
Direct control provisions Upcoming changes to Labour Market
Agents have expressed Testing evidence arrangements
some concerns about the As you would be aware, when lodging a
wording of amendments to nomination application sponsors are required to
regulation 5.19(3) for provide evidence of labour market testing (LMT)
ENS/RSMS Temporary (i.e. evidence of advertising and fees) to
Residence Transition (TRT) accompany their application – unless LMT does
stream employer not apply due to an international trade obligation or
nomination applications, where it specifies that the there is an occupation-based exemption available.
position needs to be under the ‘direct control’ of
the nominator. Currently, the Department accepts a copy of a
completed and signed Domestic Recruitment Table
The intent of this regulation is to strengthen the (DRT) as evidence of advertising. This document is,
requirement that the nominator’s need for the however, largely redundant due to improved
position to be filled is in fact ‘genuine’, not to information collection in the Nomination eForm as of
exclude from the TRT stream nominees whose 1 July 2017.
position was based with an associated entity of the
sponsor while on their subclass 457 visa. As a result, this form should no longer be completed.
Instead, sponsors should provide:
The wording of this regulation is intended to be
updated in due course to better reflect this. In the  a copy of relevant advertisement(s)*; and
meantime, the reference to ‘under the nominator’s  if fees were paid, receipt for any fees paid.
direct control’ will not adversely impact the
These changed arrangements are designed to
assessment of nominations. That is, the
ensure that agents do not need to provide duplicate
Department will adopt a wider interpretation in
information, while still ensuring that the Department
instances of an established corporate relationship,
can properly assess attempts to source qualified and
including with associated or subordinate entities,
experienced Australian citizens or Australian
by recognising that a ‘direct control’ test can
permanent residents. This is consistent with recent
potentially be satisfied in the context of the larger
Government changes to ensure that Australian
corporate structure while not allowing completely
workers get priority.
unrelated businesses to employ the applicant.
Agents are also encouraged to ensure that the
Instrument changes advertising undertaken is for the nominated position
and includes the same terms and conditions as
Legislative Instrument IMMI 15/083, which outlines
those being offered to the nominee.
skill, age and English requirements for the
Regional Sponsored Migration Scheme (RSMS) Important: as of 1 October 2017, the Department
visa (subclass 187), has been repealed and will no longer accept the DRT as acceptable
replaced with IMMI 17/058. evidence of advertising.
Legislative Instrument IMMI 15/109, which outlines Copies of advertisement(s) referenced in the
classes of persons that are not required to nomination form must be provided.
demonstrate that they have the requisite sills for an
ENS visa, remains in effect and has to be read in *Note: If a similar ad was placed in multiple media
conjunction with IMMI 17/058. formats, only one copy of the advertisement is,
however, required to show the department the
content that is being published.

Skilled visa news July 2017 | 5


Visa grant periods and ITOs does not impact on a nominee’s base rate of pay or
guaranteed annual earnings – as a result, this is not a
As of 1 July 2017, the Department will grant 457 matter for consideration as part of the subclass 457 visa
visa periods of up to 4 years where the nominated application process.
occupation is on the Short Term Skilled
Occupation List (STSOL) where: When assessing a visa applicant/holder’s salary against
 requested by the sponsor; and the market salary rate and Temporary Skilled Migration
Income Threshold, the Department would include any
 required to meet Australia’s ITOs as outlined
salary that is sacrificed/proposed to be sacrificed, and is
below.
permitted under Australian law, as part of the visa
A four year visa period will still be available for applicant/holder’s income.
‘executive and senior managers’ where the Sponsors engaging in salary sacrificing arrangements
nominee is: should maintain full documentation of this, to ensure
 currently working in a WTO member country compliance with their sponsorship obligations.
for the associated entity of an Australian
sponsor (ICTs); or 1 July 2017 Character changes
 seeking to establish a new branch of the
nominating business that is already operating As advised in the June 2017 newsletter,
in Thailand or China (Independent Executives). all 457 applications lodged on or after 1
July 2017 are required to provide police
Note: The list of ‘executive or senior manager’ certificates for each country in which
occupations, which are considered relevant by the they have lived for a cumulative period
Department in terms of ITOs, is available on the of 12 months or more, over the last 10
website and was also updated for 1 July 2017. years, since turning 16 years of age, if
their stay in Australia will exceed 12 months.
A four year visa period is also available in certain
As per the Department’s website, some countries require a
country specific scenarios, for example, where the
letter from the Department first in order to provide a penal
position involves:
check (‘penal check letter’). If you wish to ‘front end load’
 an ICT and the nominee is currently working in the penal check process to reduce processing delays, you
Singapore, Thailand or China for the overseas may wish to obtain a penal check letter before you lodge
associated entity of the Australian sponsor; or your visa application or prior to receiving a request for
 a Chinese national working for as a Wushu further information from the Department.
martial arts coach, a Mandarin language tutor
or a Traditional Chinese Medicine Practitioner. In this situation, please email 457@border.gov.au and
include the words Front end load - Penal Check Letter in
Salary Sacrifice (packaging) the subject line of your email.

A number of agents have raised Important: Please do not email 457@border.gov.au with a
questions regarding how salary request for such a letter if you have already lodged the
sacrificing arrangements work in relevant visa application, as you will be sent the letter as
the context of the subclass 457 part of standard processing arrangements.
program – for example, salary Note:
sacrificing in the context of  For immigration purposes, a police certificate is valid
superannuation, purchasing a product for 12 months from the issue date.
(e.g. laptop, car) or for further education purposes  If you have obtained a penal clearance certificate after
(e.g. tertiary fees). visa application lodgement and would like to advise the
Salary sacrifice is simply an arrangement between the Department, please attach the Penal clearance
employee and their employer where the employee pays certificate directly to your pending visa application in
for some items or services straight from their pre-tax ImmiAccount. The forwarding of attachments by email
salary. It reduces a person’s taxable income and so will delay the processing of your application.
reduces the amount of income tax that they pay, but it

Skilled visa news July 2017 | 6


Procedural instructions (PI) update Priority processing will not be considered where:
Further updates to the 457 PIs in Legendcom are  processing delays are the only factor for your request
being considered for October 2017. Interim advice  the application is still missing required information.
will be provided to agents via the website and This is particularly important for nomination
newsletters where required. Updated ENS/RSMS applications which are missing employment
PIs will be released on by August 2017. contracts, and visa applications which are missing
Health Insurance details for all visa applicants.

Understanding
Labour agreement update
processing matters
Is a labour agreement appropriate?
Processing times update Agents are reminded that the labour agreement
Don’t forget you can access recent information program should only be able to be accessed where:
about global visa and citizenship processing times  there is a genuine labour market need for an
via the Department’s website. overseas skilled worker to fill a position in
Australia; and
Subclass 457 processing times have begun to  there is no standard visa pathway available.
reduce again following significant efforts from our
processing network to return processing times to Important: It is not sufficient for a labour
normal now that the April and July changes to the agreement request to be approved simply because
program have been fully implemented. We expect an occupation has been removed from the list of
further improvements in August 2017. eligible skilled occupations or only a two year visa
is available.
ENS and RSMS processing times have increased
due to an increase in lodgement numbers since
April 2017. What level of information must be provided?
A labour agreement request will not be accepted for
457 nomination transfers – good news! processing where:
Following the changes of 1 July 2017, our systems  no, or very limited, supporting evidence has been
can now automatically identify nomination provided; or
applications where the sponsor has indicated that  it is a repeat request and no new information has
the nomination application is being lodged to been provided
facilitate a 457 visa holder changing employer. This A strong business case for the employment of an
will ensure that priority processing will automatically overseas worker must be put forward, with supporting
be afforded to such cases – without the need for evidence.
manual intervention. Agents are therefore:
 reminded to lodge complete applications as The Department is in the process of updating its labour
required; and agreement information on the website to provide
 advised not to request priority processing by additional advice regarding the supporting documentation
email for any such cases going forward. that should be provided. More information about this
updated documentation will follow in the next edition of
Reminder regarding priority processing this newsletter.
requests
Important: In the interim, agents are advised that it is not
Agents are reminded that priority processing sufficient for a Domestic Recruitment Table (DRT) to be
requests will not be accepted unless an explanation provided to demonstrate labour market testing, with
for why priority allocation should be considered is supporting documentation (e.g. copies of advertisements)
provided. also required. Any labour market testing that has
occurred during the last 12 months should be included.

Skilled visa news July 2017 | 7


Note: It is intended that the SAF levy will only be
March 2018 update refundable where a refund of the nomination fee is
also available. For example, if the sponsorship
Where can I get more information about application was refused and the nomination
transitional arrangements? application is otherwise finalised, both the
nomination application fee and the SAF levy would
The Questions and Answers be refunded. That is, it is not intended that there
document on the website
will be any refunds (or part-refunds) just for the
continues to be updated as
SAF levy by itself.
additional information is
available regarding transitional
arrangements – i.e. how the Identified agent issues
upcoming March changes will impact existing
subclass 457 visa holders and applicants. Reminder regarding emailing protocols
There has been a significant increase in
What is the SAF? inappropriate email traffic to
457Management@border.gov.au.
Agents are reminded that the existing training
benchmarks requirements will cease in March
As previously advised, emails regarding pending
2018, with a new Skilling Australians Fund (SAF) applications (e.g. routine priority processing
levy to be paid instead at nomination time for the requests; applications falling outside of processing
new Temporary Skill Shortage (TSS) visa, as well times or occupational caveats) should be sent to
as the subclass 186 and 187 visas. 457@border.gov.au only.

The SAF levy will be collected by DIBP as part of Please do not copy multiple mailboxes and
the nomination application process. individuals in your email – for example, do not
copy 457Management@border.gov.au when
The SAF will not be collected retrospectively. That emailing 457@border.gov.au and vice-versa.
is, it will only be collected in relation to nomination
applications received for the TSS, 186 and 187 If you have ceased employment as a 457 visa
visas, after commencement in March 2018. holder or you are the business sponsor/ authorised
representative of a business sponsor advising the
The sponsor will need to indicate the proposed employment cessation of a 457 visa holder, you
employment period for the nominee and this future must notify the department by sending an email to:
period will be used to calculate the required fee. Sponsor.notifications@border.gov.au. Do not email
such information to 457@border.gov.au.
The SAF will be managed by the Department of
Education and Training (DET). Spending from the Current agent behaviour is still slowing down
SAF will be prioritised towards apprenticeships and impacted areas, resulting in slower response and
traineeships, pre-apprenticeships and higher level processing times.
apprenticeships, occupations in high demand,
areas with future growth potential, as well as rural Reminder – providing credit card details
and regional Australia. Information on the SAF is Please do not send electronic copies of the 1424
available from the DET website at form via email, or upload an electronic copy of the
https://www.education.gov.au/skilling-australians- form 1424 via ImmiAccount, if it contains credit
fund . card details. This is because ImmiAccount and
DIBP’s email system are not encrypted systems.

You will need to mail the forms to the department.

Skilled visa news July 2017 | 8


Improved search functionality
ImmiAccount The quick search box at the top of the page allows you to
hints and tips type in a status and show only the applications in the list
with that status. You can also type (or paste) a TRN or
Defect relating to ‘&’ family name into that box to bring up a particular
application.
Please try to avoid using the ampersand symbol
(&) in subclass 457 applications as there is
currently a system defect that prevents a PDF of
the application form generating where this symbol
is used.

Labour market testing defect


There is currently a defect with the Nomination
document checklist where applicants who have
declared that LMT is not required are being
advised that evidence of the exemption is
required. This is only applicable where the
international trade obligation reason has been
selected; no evidence is required when the
occupation is exempt.
Workforce details for large organisations
The subclass 457 and 186 nomination application
forms now request information concerning the
workforce composition of the sponsor:

Agents view in ImmiAccount


If you are struggling to adjust to the new page
presentation in ImmiAccount, you should be aware
that if you are registered as an organisation user,
you can switch back to the old view if desired, by
selecting table view as per the screenshot below.
This view will however revert back to the ‘new’
view every time you exit and return to
ImmiAccount.

Given the size of certain workforces (e.g. large


universities and hospitals) and the fact that these can
easily change frequently, it may be difficult to provide
accurate figures with each individual nomination
application.

Consequently, while exact figures are not critical


particularly for large organisations (such as universities
and hospitals), the Department would still expect the
figures to be reasonably accurate and recent (e.g. from
recent report/financial year data).

Skilled visa news July 2017 | 9


Where do I go for assistance?
If you are having problems with ImmiAccount or an eVisa form (including application lodgement), contact
the Department in the first instance using the ImmiAccount Technical Support Form so that the relevant
systems helpdesk can assist you. See: http://www.border.gov.au/Trav/Visa/Immi/immiaccount-technical-
support-form

If you have questions about an already lodged application which is being processed by the
Department, contact 457@border.gov.au in the first instance, which is managed by the Department’s 457
processing teams.

If you have any labour agreement queries or wish to request an agreement information package, email
us at labour.agreement.section@border.gov.au

If you have questions about an application which has already been finalised, please forward the query to
457Management@border.gov.au with subject title: “457 Post-decision enquiry”.

Note:
 emails that do not provide supporting evidence and/or raise a specified concern regarding the application
of law/policy will not be answered.
 BV Post-decision enquiries cannot be handled by this mailbox.

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