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AUSTRALIA – July 2013 Changes to 457 Visa Programme

The Australian Minister of Immigration & Citizenship. Brendan O’Connor, MP has announced further details of proposed changes to the 457 visa regime, to take effect from 1 July 2013. The changes are designed to “strengthen the integrity” of the 457 programme and include the introduction of a “genuineness criterion”, a higher threshold for exemption from market salary dates and a strengthening of the training criterion. The full announcement can be found here.

Genuineness Criterion

The “genuineness criterion” is new and will allow the immigration department to refuse a nomination if the position does not appear to be genuine – if it does not fit within the scope of the activities of the business.

Increase in Market Salary Exemption Threshold

The Australian Government introduced the concept of the Temporary Skilled Migration Income Threshold (TSMIT) in September 2009. If the market rate for an occupation is below the TSMIT then the occupation cannot be approved. The TSMIT was set at A$51,400 on July 1, 2012. Proof of TSMIT is not currently required if the base salary is A$180,000 or more.

However, this threshold will increase from A$180,000 to A$250,000 from 1 July 2013 to ensure that higher paid salary workers are not able to be undercut through the employment of overseas labour at a cheaper rate.

Removal of English Language Exemptions for Certain Positions

Currently certain positions are exempt from the need for the applicant to demonstrate English language proficiency. This is due to change. Applicants who are nominated with a salary greater than $92 000 will continue to be exempted from the English language requirement.

The Department claims that this is a good thing, because “Many long-term 457 workers go on to apply for permanent residence, and this change will ensure that the 457 program requirements are brought into line with the permanent Employer Sponsored program which requires a vocational English ability. This change will benefit visa holders by ensuring that 457 visa holders, who have an ongoing position with their employer and want to apply for permanent residence in the long-run are not disadvantaged because of their language ability.

Enhanced Regulatory Powers

The Department of Immigration will have additional powers to ensure that the working conditions of sponsored visa holders meet Australian standards and that subclass 457 workers cannot be exploited or used to undercut local workers.

Amendment to Training Benchmark Provisions

Training benchmark provisions will be amended to clarify that an employer’s obligation to train Australians is ongoing and binding for the duration of their approved sponsorship, including for newly established business.

Clarification over Subcontracting

Amendments will be made to clarify that 457 workers may not be on-hired to an unrelated entity unless they are sponsored under a labour agreement.

Action Items

  • Ensure that your training expenditure meets your training benchmarks and can be verified
  • Case Officers are likely to be given a discretionary power to make investigations of market salary rate beyond what is paid in an individual company so please ensure you have confirmation of the market rate on your file, for example by using Hay, Mercer, industry rate, AIM etc.
  • If in doubt – ask. The Australian Immigration Department is going through a lot of changes at the moment and as the Federal Election approaches, immigration will again be at the forefront of the political landscape.

This news alert was prepared using information provided by Visa Executive

DISCLAIMER: The information contained in this immigration alert has been abridged from laws, court decisions, and administrative rulings and should not be construed or relied upon as legal advice. If you have specific questions regarding the applicability of this information, please contact Peregrine © 2017 Peregrine Immigration Management Ltd.