The subclass 457 visa scheme has been the subject of much debate in recent months. With federal parliament having now come to a close, we take the opportunity to look at what amendments have actually been, or will be, made to the scheme.
The Ugly – Labour Market Testing
It will soon be necessary, as part of the nomination process, for subclass 457 visa sponsors to provide evidence of:
- labour market testing; and
- information about the retrenchment or redundancies of Australian citizens or permanent residents working in the nominated position in the 4 months before the nomination (if applicable).
A number of exemptions to this requirement will apply, with the most relevant being where the nominated occupation is an occupation which has been specified by the Minister of Immigration as being exempt from the requirement. At the date of this article, the list of occupations which will be exempt from labour market testing is not available. It is however likely that the majority of exempt occupations will be limited to those occupations on the Consolidated Skilled Occupation List which fall under ANZSCO Major Groups 1 and 2 (i.e. managerial and professional occupations – possibly, however, with the notable exclusion of engineering occupations).1
If an exemption does not apply, sponsors will need to include, in their nomination application, evidence of attempts to recruit suitably qualified and experienced Australian citizens or permanent residents to the position, such as:
- any advertising of the position authorised or commissioned by the sponsor;
- fees and other expenses paid for that advertising;
- details of any research released regarding labour market trends in the nominated occupation in the 4 months prior to the nomination;
- details of fees and expenses paid for any recruitment attempts; and
- details of recruitment attempts.
The requirement to provide evidence of labour market testing will commence on a date to be proclaimed or 6 months after the Migration Amendment (Temporary Sponsored Visas) Bill 2013 receives Royal Assent.
The Bad - Visa Charges
The Department of Immigration and Citizenship has introduced new fee arrangements for the processing of visa applications effective from 1 July 2013.
Previously, the cost of applying for a subclass 457 visa (excluding the cost of sponsorship and nomination application charges - which remain unaffected) was a flat fee of $455.
The amendment2 has introduced, amongst others, the following charges for 457 visa applications:
- base application fees – being $900;
- additional applicant fees for secondary applicants over 18 years of age – being $900 for each secondary applicant (i.e. family members over the age of 18); and
- additional applicant fees for secondary applicants under 18 years of age – being $225 for each secondary applicant (i.e. family members under the age of 18).
The new fees significantly increase the cost associated with lodging a subclass 457 visa application. In a typical example, a visa application including a primary applicant, their spouse and a child will now cost $2,025, having previously cost just $455.
Whilst additional fees for secondary applicants were, for the most part, introduced across all visa subclasses, the subclass 457 visa scheme has been uniquely affected because of the significant increase in the "base application" fee.
Some Good – Period to Find New Employment
Currently, 457 visa holders who cease employment with their sponsors (by reason of dismissal, resignation or otherwise) for periods in excess of 28 consecutive days are liable to have their visas' cancelled. This has led to a situation where holders of subclass 457 visas have had to depart Australia on short notice, because they have been unable to find a new sponsor within the 28 day period.
In a move which is beneficial to both subclass 457 visa holders and employers (who will no longer be subject to unreasonable timeframes in which to prepare their sponsorship and/or nomination application[s] when sponsoring out-of-work 457 visa holders), the 28 day period will be extended to 90 days.3
If you have any queries about how these changes might impact upon your business, please contact the authors.
Footnotes
1Clause 43, Supplementary Explanatory Memorandum, Migration Amendment (Temporary Sponsored Visas) Bill 2013.
2Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013.
3The commencement of this amendment will be the day after the Migration Amendment (Temporary Sponsored Visas) Bill 2013 receives royal assent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
