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Temporary Skill Shortage (TSS) Subclass 482 Visa from March 18th 2018

TSS 482 Visa Replaces Repealed 457 Visa

Please see below summary on key changes as the Department of Home Affairs (DHA) repealed the Temporary Work (Skilled) Subclass 457 Visa on 18th March 2018 and replaced it with the new Temporary Skill Shortage (TSS) Subclass 482 visa.

For all intents and purposes the TSS Visa program is still a 3 step employer sponsored temporary residency visa.

The first step is still Standard Business Sponsorship (SBS) to have a business approved to sponsor overseas workers.

The second application is the Nomination Application to have the position in the business approved.

Naturally the third step is the employee’s visa application.

Most of the legislative changes relate to steps 2 and 3.

SBS Changes

Really the only significant change in relation to Step 1 (which does not impact your business) is the removal of the old Training Benchmarks. As part of the transition towards the SAF levy arrangements, as of 18 March 2018, businesses are no longer required to demonstrate at sponsorship application stage that they have met the 'training benchmarks'.

Nomination Changes

Skilling Australians Fund (SAF) Levy

The Bills to implement the Skilling Australians Fund (SAF) levy are currently before the Parliament.

Once enacted, fees of $1,800 per year (businesses with a turnover above $10 million) or $1,200 (where turnover is under $10 million) are payable by the business when the Nomination Application is lodged. For example a business with a turnover above $10 million wanting to employ an overseas worker for two (2) years would need to pay $3,600 in SAF levy in addition to the usual $330 Department Nomination Charge.

Therefore if you want to nominate an overseas worker it would be prudent to do so now before the introduction of the SAF levy.

Occupation Lists

The occupation must be on either the Medium & Long Term Skill Shortage List (MLTSSL) or the Short Term Skilled Occupation List (STSOL).

There are additional regional occupations for a number of visa programs.


Streams

Medium-Term stream - Where the Nominated Occupations is on the MLTSSL the corresponding TSS Visa can be granted for a maximum of 4 years.

Short-Term stream - Where the Nominated Occupations is on the STSOL the corresponding TSS Visa can be granted for a maximum of 2 years, unless where International Trade Obligations apply, such as Free Trade Agreements or WTO GATS whereby .

Caveats renamed as inapplicability criteria

For certain occupations there are excluded positions. These depend on certain attributes of the position, or turnover of the business, location of the position or other factors. It is important that we assess the position to determine whether Caveats apply and whether the additional criteria can be met.

Full-Time position

There must be an employer-employee relationship (certain exemptions) and the position must be full time based on a 38 hour week.

Annual Market Salary Rate replaces Gross Base Salary

Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT – still $53,900) requirements.

What the overseas worker will be paid must be equivalent to what is paid to an Australian in the same workplace and location and the terms and conditions of employment comply with all Federal, State, and/or Territory employment laws.

Labour Market Testing

There have been some changes. You are still required to provide the receipts of the advertising cost, as well as a copy of the relevant advertisements.

The Department now require at least two (2) advertisements (in the last 12 months and From 18 June 2018 the advertisements must have been published in the past 6 months) and each advertisement was published in any one of the following ways:

    • on a national recruitment website (for example, SEEK, Indeed, jobactive.gov.au) – that is, a prominent or professional recruitment website that publishes advertisements for positions throughout Australia. Note: A general classifieds website (Gumtree/Locanto) or an advertisement solely through a social media notification, such as Twitter, Facebook, LinkedIn or Instagram, is not an acceptable method.
    • in national print media – that is, national newspapers or magazines that are published at least monthly and marketed throughout Australia
    • on national radio – that is, radio programs that are broadcast or syndicated nationally
    • internally to the business, if the position is an intra corporate transfer
    • on the business' website, if the sponsor is accredited.

  • if the advertisement was published on a website, it 'remained live' for at least 21 consecutive calendar days.

The advertisements must:

    • Be published in Australia
    • In English
    • Include the position title or description
    • Include the name of the sponsor or recruitment agency
    • Include the annual earnings of the position, unless above $142,000 per annum

Visa Changes

Work Experience Requirements

All primary TSS visa applicants must demonstrate that they have at least two (2) years' work experience in the nominated occupation or a related field. Such work experience must be completed while working in the nominated occupation, or performing tasks at the same skill level in a related field.

This effectively eliminates recent graduates (either overseas students in Australia or graduates from abroad) as applicants.

There are flexible arrangements are in place to cater for specific industries.

English Language Requirements

Applicants for the MLTSSL stream must obtain an overall score of 5.0 in IELTS (or equivalent in another English language exam) and a minimum of 5.0 in each stream.

Applicants for the STSOL stream must obtain an overall score of 5.0 in IELTS (or equivalent in another English language exam) and a minimum of 4.5 in each stream.

Exemptions apply where applicants have studied a requisite amount in English, obtained licensing which requires evidence of a greater level of English, are paid a base salary of $96,400 per annum plus super and are employed by an overseas business, or have a passport from the UK, USA, Canada, New Zealand or the Republic of Ireland.

Family members

The more restrictive definition of Members of Family Unit introduced in 2017 applies. Only spouses/de facto partners or children under 23 years of age can be included.

Renewal

Visas in the Medium-Term stream may be renewed indefinitely while the occupation remains on this list.

Also there is capacity for permanent residence eligibility after three(3) years under the Medium-term stream.

Visas for Short-Term stream can only be renewed once onshore. Subsequent renewals may be made from offshore but this may impact on claims the applicant is a Genuine Temporary Entrant.

There is no pathway to employer sponsored permanent residence under the Short-Term stream.

Genuine Temporary Entrant (GTE)

Under the Short-Term stream visa applicants must demonstrate that they do not intend for their stay in Australia to be permanent.

Police Clearance Certificates

Mandatory Police Clearance Certificates required for all applicants over 16 years of age for each country lived in for a total of one year (cumulatively) or more in the last 10 years. TSS visa applicants sponsored by

accredited sponsors may be able to satisfy character requirements on the basis of a work reference confirming the applicant’s good character.

Permanent Residency Visa Changes

Only occupations on the Medium and Long-Term Strategic Skills Shortage List (MLTSSL) are available to the Employer Nomination Scheme (ENS) program.

Unless coming under the Transitional Arrangements (see below) Visa Applicants must have at least three (3) years work experience with the same employer under the Temporary Residency Transition (TRT) Stream or at the skill level under the Direct Entry Stream.

Applicants must be under the maximum age requirement of 45 at the time of application (unless exemptions apply).

Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold (TSMIT)

There will also be a requirement to pay a contribution to the Skilling Australians Fund (SAF) subject to legislation passing.

Transitional arrangements are in place for employees who held a subclass 457 visa on 18 April 2017 and continue to hold this visa or a 457 visa/TSS visa/related bridging visa at time of application for the Employer Nomination Scheme (ENS) Subclass 186 visa under the Temporary Residency Transition (TRT) Stream. These arrangements also extend to employees who lodged a subclass 457 visa application on or before 18 April 2017 which was subsequently granted and continues to hold this visa or a 457 visa/TSS visa/related bridging visa at time of application.