January 2018 Immigration update

Changes to employment visa arrangements - occupation lists, 457 visas & transition to the TSS visa

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Jan 29, 2018
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Establishment of the Department of Home Affairs

The government recently announced the creation of a new Department of Home Affairs, a 'superportfolio' Department which encompasses the federal security agency, ASIO, the Australian Federal Police, the Department of Immigration, Australian Border Force, and several criminal intelligence, law enforcement and cybersecurity bodies.

Minister Peter Dutton has been named Minister for Home Affairs and will oversee the portfolio. Angus Taylor has been named Minister for Law Enforcement and Cybersecurity, Alan Tudge has been made Minister for Citizenship and Multicultural Affairs, and Alex Hawke will become Assistant Minister for Home Affairs.

The inclusion of the Department of Immigration in a portfolio otherwise exclusively focused on security, counter terrorism, and law enforcement shows the changing perception of immigration under the current government. Hammond Taylor is among many members of the immigration profession concerned about the changing focus of the Department and risk that immigration be perceived exclusively through a security lens.

January 2018 changes to Occupation Lists

Changes to 457 Work, 186 Employer Nomination Scheme and 407 Activity visa occupation lists

The Department of Home Affairs has announced the changes to the Skilled Occupation Lists for January 2018. Changes will affect all the employer sponsored occupation lists, the 457 Work visa, the 186 Employer Nomination Scheme, as well as the 407 Activity visa. The 407 list has now been brought into alignment with the 457 and 186 lists.

These changes apply to all applications made on or after 17 January 2018, noting the following:

  • 457, 186 Direct Entry, and 407 Nomination applications made prior to this date will not be impacted and will be processed based on the list in effect at the time of their original application.
  • Where the 457, 186 Direct Entry, or 407 Nomination was lodged before 17 January 2018, any related visa applications will be processed using the list in effect prior to 17 January 2018 regardless of whether it is lodged before or after this date.

The 186 visa Temporary Residency Transition stream operates without a list and occupations are exempt from caveats.

Occupations Added to the STSOL

  • Pyschotherapist 272314
  • Real Estate Representative* 612115
  • Property Manager* 612112

*Occupation has additional caveats

Occupations moved from STSOL to MLTSSL

  • Horse Breeder* 121316
  • Management Consultant* 224711

Occupations removed from the lists

  • Building Associate 312112
  • Hair or Beauty Salon Manager 142114

No occupations were moved from MLTSSL to STSOL

Occupations with caveat changes only

  • Accommodation and Hospitality Managers NEC 141999 – New Caveat
  • Management Accountant 221112 – New Caveat
  • Massage Therapist 411611 – Caveat amended
  • Retirement Consultant 223112 – Caveat Amended
  • Supply and Distribution Manager 133611 – Caveat Amended
  • Taxation Accountant 221113 – Caveat Amended

For more information check the Department of Immigration's website here: https://www.homeaffairs.gov.au/trav/work/work/2018-changes-of-eligible-skilled-occupations

No changes to 187 Regional Skilled Migration Scheme (RSMS) and 407 Activity visa occupation lists

No changes to 187 Regional Skilled Migration Scheme (RSMS) and 407 Activity visa occupation lists

No changes have been made to the 187 RSMS visa Direct Entry occupation lists. The 187 RSMS Temporary Residency Transition stream operates without a list and occupations are exempt from caveats.

Changes to Independent Skilled 189, 190, 489, and Graduate 485

New occupation lists have been released for the Skilled Independent visas (Skilled Independent 189, State and Territory Sponsored 190, Family or State and Territory Sponsored 489 (Provisional) visas.

Security measures – ATO data and sponsor breaches

The Department has advised that the date for these proposed changes will be pushed back to later this year owing to the delay in legislation being passed.

Transition to the TSS visa

The Department of Home Affairs has announced a number of changes to processing of the employer sponsored visas

Transitional arrangements for TSS visas

The Department have outlined a number of key transitional arrangements:

  • Existing Business Sponsors will be able to nominate TSS nominations and sponsor TSS visa applicants from introduction of the program in March 2018
  • Where a 457 nomination and visa application are lodged pending a decision these will be assessed under current 457 requirements
  • Where a 457 nomination only has been lodged the application will not be assessed and employers will need to reapply for a TSS nomination
  • Employers will be able to transfer 457 visa holders to their sponsorship by lodging a TSS nomination
  • Where a 457 visa holder is seeking to change occupations through re-nomination they must apply for a TSS visa. It will not be possible to change occupations through a nomination only approach.

Transitional arrangements for 457 applications – Occupation Lists

The Department has confirmed that pipeline applications (ie, lodged but undecided applications) will not be impacted by future changes to occupation lists.

Nominate period of visa application

Sponsors will need to nominate the maximum period of the visa at the time of application. This is likely related to the implementation of the Training Levy and assessment of costs at the time of application.

Access to permanent residency for pre-April 2017 457 holders through TRT

The Department has again announced the intention to create 'grandfathering' arrangements to protect the interests of people who held, or had applied for, 457 visas at the time of the April 2017 announcement of the abolition of the 457 visa.

These arrangements are expected to enable existing 457 visa holders (including those who subsequently hold a TSS) to apply for permanent residency after March 2018 through the Temporary Resident Transition (TRT) stream on the basis of completing 2 years' full-time employment with their current employer. These visa holders will not be subject to occupation list changes (TRT is exempted from this requirement) and the maximum age will remain 50 years (rather than 45 for future applicants).

Some new requirements may apply, such as the introduction of TSMIT to the 186 and 187 visa.

It remains unclear whether people who had a 457 prior to 18 April but whose visa will expire before they qualify for TRT will be eligible under a post 18 April 457 or TSS visa.

These proposals remain subject to final approval by the Minister.

Requirement for 'decision ready' 457 visa applications

The Department has announced that from 15 January 457 Nomination and Business Sponsorship applications which are not decision ready within two days of lodgement will be refused. 457 visas will not be refused without further notice because of 'natural justice' obligations on the Department.

Same Sex Marriage

Visa applicants in legally recognised same sex relationships can now lodge their visas on the basis of marriage, rather than de facto status, due to changes to Australian marriage laws.

Singapore-Australia Free Trade Agreement

The new 'SAFTA' came into force on 1 December. Applications for Singaporean nationals and employees of Singaporean entities will have an expanded range of exemptions from Labour Market Testing.

Character Documentation

The Department have clarified that only Australian character certificates issued by the Australian Federal Police ('AFP') will be accepted for periods of Australian residency. This means that character checks for employment purposes will not be accepted. State police clearances are likewise not acceptable.

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Jackson Taylor

Partner, Hammond Taylor

Australian immigration lawyer and registered migration agent

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