July 19, 2012

On July 1, 2012, Australia’s Department of Immigration and Citizenship (DIAC) has issued several important changes to the traditional work visa scheme (Subclass 457 Visa) and the permanent visa category (Subclass 121/856).

What’s Changed?

Consolidated Skills Occupation List Released

An important development is the Consolidated Skills Occupation List (CSOL) released on July 1, 2012.

According to the DIAC, the CSOL (http://www.immi.gov.au/skilled/general-skilled-migration/pdf/occupations-csol.pdf) will be the comprehensive list of occupations considered to be either as a shortage occupation or occupations requiring highly-sought technical/specialized skills.

The CSOL replaces and consolidates several different regional and governmental skills occupation lists and the Employer Nomination Scheme (permanent residence status for highly-specialized workers nominated by an employer) or “ENS” and the Subclass 457 visa (non-immigrant worker) Skilled Occupation Lists.

The CSOL will be maintained and updated by the DIAC as the definitive guide to those occupations receiving priority for approving work authorization on behalf of foreign nationals possessing high-value skills.

For Subclass 457 renewal applications, please note that an applicant must be in an occupation that is on the CSOL at the time of filing a renewal.

Increase in National, Minimum Annual Salary

To reflect an increase in Australia’s overall average weekly earnings, the DIAC has indexed an increase of the Temporary Skilled Migration Income Threshold (TSMIT) by 4.2%. The TSMIT has increased the national, minimum annual salary to AU$51,400 (approx. US$52,162) from AU$49,300 (approx. US$50,424).

The TSMIT is used by the DIAC as the minimum annual salary that must be paid to all Subclass 457 visa applicants. All Subclass 457 visa nominations not yet decided by July 1st and also those filed on or after July 1st must meet this new minimum salary threshold.

However, all ENS visa applications filed on or after 1 July are not subject to the same threshold. Rather, these applications need only provide a salary that is at the ‘market rate’ paid in Australia. Therefore, there is no longer a minimum salary level for ENS applications.

Companies sponsoring work permits must pay the prevailing Australian market salary rate commensurate with industry standards. Therefore, the new TSMIT will be required by the DIAC as a “floor” when reviewing work permit applications.

The increase to TSMIT means that where the market rate for a position is less than AU$51,400, the position cannot be nominated under the Subclass 457 visa program.

Of note is a special exemption to TSMIT that will waive the English language requirement for those foreign national workers classified as “high income” earners. The new exemption salary will be increased to AU$92,000 (approx. US$94,097) from AU$88,410 (approx. US$90,425) for all visa applications decided on or after July 1, 2012.

All foreign nationals holding status prior to July 1, 2012 must meet the new TSMIT when filing a renewal application.

ENS Permanent Residence Status Will Be Classified into “Streams”

The current ENS visa Subclasses 121 & 856 will be replaced with one new ENS visa subclass – the Subclass 186. The current RSMS (Regional Sponsored Migration Scheme) visa subclasses 119 and 857 will be replaced with one new RSMS visa Subclass – the Subclass 187.

Please note that all ENS visa applications must now be lodged online.

As most corporate immigration clients will be considering the ENS visa subclass, the information provided below focuses on this alone. (The RSMS scheme is less onerous but only open to regional workers and employers. Further information can be provided about the RSMS scheme on request.)

The DIAC’s general instruction includes that the Subclass 186 visa will be categorized into three “streams”:

  • The Temporary Residence Transition stream is for Subclass 457 visa holders who have worked for their employer for at least the last two years and the employer wants to offer them a permanent position in that same occupation;
  • The Direct Entry Stream is for applicants who are untested in the Australian labor market and have not held a Subclass 457 visa for at least the last two years or are applying directly from outside Australia;
  • The Agreement Stream is for applicants who are being sponsored by an employer through a highly-scrutinized and negotiated labor agreement or regional migration agreement.

The above descriptions provide the general requirements for each stream. However, as indicated in the DIAC instructions, both employers and visa applicants will need to meet all of the requirements of the particular stream.

Please note that while there is no longer a minimum salary threshold for ENS or RSMS nominations, the employer must demonstrate that the salary being provided to the visa applicant is at the ‘market rate’.

Please also note that the cut-off age for ENS & RSMS applications has been raised to 50 years of age and applications must be lodged before the visa applicant turns age 50.

Exemptions to the maximum age requirements are as follows:

  • Are a Minister of Religion who is going to work for a religious institution;
  • Are a researcher, scientist or technical specialist who is going to be employed by an Australian government research agency;
  • Are a senior academic employed at Academic level B, C, D or E by a university in Australia; or
  • Have been working with their nominating employer in their nominated occupation as the holder of Subclass 457 visa for the last four years and they have had earnings that were at least equivalent to the Fair Work High Income Threshold (e.g., Group Certificates and Australian Taxation Office – Notice of Assessments).

For applicants applying via the Temporary Residence Transition stream, at a basic level, applicants must score at least 5.0 (Modest English level) in International English Language Testing System (IELTS) or ‘B’ in Occupational English Test (OET). Applicants applying via the Direct Entry stream must score at least 6.0 in IELTS (Competent English level) or ‘B’ in OET.

Please note that there are several, specific requirements and conditions that must be met for each “stream”. In addition, there are also certain exemptions associated with each “stream” that may permit the applicant to more readily qualify for status. In any case, all ENS applications should be carefully reviewed by a certified and registered Australian immigration supplier to confirm all applicants qualify for a particular category of permanent residence.

SkillSelect

SkillSelect is the new system via which a variety of visas can be lodged and managed – primarily: General Skilled Migration Visas (professionals and skilled migrants who are not sponsored by an employer); Business Investment Visas and Employer-Sponsored Permanent Residency Visas.

The first two visa streams are generally not relevant to traditional corporate immigration – typically, the Employer-Sponsored Permanent Residency stream will be relevant. As noted above, all ENS visas will now be online applications. However, this is not done via SkillSelect.

SkillSelect is only relevant to ENS visas in that employers may view details on SkillSelect to see if there is anyone registered on the system that they might like to approach with an employment opportunity.

For more details on SkillSelect see http://www.immi.gov.au/skills/skillselect/.

Please note that it is not mandatory for potential ENS visa applicants to record an Expression of Interest (EOI) on SkillSelect. This is only a facility for people looking for an employer to sponsor them, which will not apply in those cases where the sponsor has already sourced the employee.

ACTION ITEMS FOR EMPLOYERS

The DIAC and its staff will be more closely scrutinizing the level of skills and talent that all foreign worker applicants will be bring to Australia. In addition, SBS’s will be required to clearly prove that an applicant’s academic qualifications and professional skills are clearly relevant to the proposed job.

Companies wishing to apply for Australian work authorization as Standard Business Sponsors (SBS), either as an “Overseas Sponsor” or an “On-Shore Sponsor”, are advised to work closely with their Australian immigration supplier to ensure compliance with the guidelines and requirements, particularly for permanent residence applications and those work authorizations outside the traditional Subclass 457 visa category.

Glenn Faulk, Senior Manager, Knowledge Management, has written this alert in coordination with our Australian KGNM- Relocations Australia.

Caveat Lector | Warning to Reader

This content is provided for general information purposes only and does not constitute legal advice or final guidance for any immigration matter. Readers are reminded that a country’s immigration laws and requirements may change with little to no advance public notice. Questions regarding specific immigration matters should be addressed to your Pro-Link GLOBAL specialist.

This content is provided for general information purposes only and does not constitute legal advice or final guidance for any immigration matter. Readers are reminded that a country’s immigration laws and requirements may change with little to no advance public notice. Questions regarding specific immigration matters should be addressed to your Pro-Link GLOBAL specialist.