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AUSTRALIA - 457 Visa Labour Market Testing

Australia’s Department of Immigration & Border Protection (DIBP) has announced that labour market testing (LMT) for 457 Visa sponsors will commence on 23 November 2013, and has released details (see the “Nominate” tab) of requirements and exemptions. The news is good for nominating sponsors as the requirements are not onerous and the exemptions are broad.

LMT Requirements

The DIBP has advised that sponsors will be required to provide evidence of their attempts to recruit suitably qualified and experienced Australian citizens, Australian permanent residents or eligible temporary visa holders. Important details are as follows:

  • There must be evidence of labour market testing within the 12 months prior to the nomination, but no specific minimum duration for advertising is mandated.
  • The evidence submitted must include details and expenses of any advertising conducted. The evidence may optionally include labour market research, expressions of support from government employment agencies or information about participation in job and career expositions.
  • The Domestic Recruitment Summary Table (available here) may be completed in full (this is recommended but not compulsory) and provided as evidence of labour market testing.
  • If an Australian citizen or permanent resident was, in the previous four months, made redundant or retrenched from a similar position in the business or an associated entity of the sponsor, information about those redundancies or retrenchments must be supplied, and the LMT must be undertaken after the redundancies or retrenchments.

Exemptions under International Trade Obligations

Labour market testing will not be required where it would be inconsistent with Australia’s international trade obligations. The following circumstances would obviate the need for LMT:

  • The nominated worker is a citizen of Chile or Thailand, or is a Citizen/Permanent Resident of New Zealand;
  • The nominated worker is a current employee of a business that is an associated entity of the nominating business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile or New Zealand.
  • The nominated worker is a current employee of an associated entity of the nominating business who operates in a country that is a member of the World Trade Organization, where the nominated occupation is “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of the company's operations in Australia.
  • The nominating business currently operates in a World Trade Organization member country and is seeking to establish a business in Australia, where the nominated occupation is “Executive or Senior Manager”.
  • The nominated worker is a citizen of a World Trade Organization member country and has worked for the nominating business in Australia on a full-time basis for the last two years.

Lists of “Executive or Senior Manager” positions and World Trade Organization member countries are available here.

A further exemption would be granted if a major disaster has occurred, and the exemption is necessary in order to assist disaster relief. This exemption can only be granted, in writing, by the Minister for Immigration and Border Protection.

Occupation-based Exemptions

The list of occupations (here) for which labour market testing is required covers most technical and trade occupations. All professional occupations apart from engineers and nurses are exempt from LMT.

Action Items

  • Employers sponsoring nurses and engineers, trade and technical occupations will need to provide evidence of labour market testing at some point in the 12 months prior to submission of the 457 application.
  • Check the lists of exemptions.
  • Bear in mind that this is a new policy, and therefore more precise requirements for labour market testing may crystallize as the policy comes into practice.
  • Expect some delays as the new requirements take effect.

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.