The Global Talent Independent Visa program aims to attract top talent in certain critical sectors. It is designed to help Australia compete with countries such as Canada, the US and the UK for the world’s best and brightest. The program targets individuals who are distinguished in their field and who are likely to be able to earn at least AU$153,600 in Australia.

Ajuria’s dedicated Global Talent Visa team has successfully lodged many applications for Global Talent Visas and are now seen as some of the leading experts in this specialised area.

Why the Global Talent Independent Visa Program (GTIP) over other options?

For those that are eligible, the program is attractive in many ways:

• Priority processing means these visas are given the highest priority of all Australian migration programs. The process is streamlined and extremely efficient with visas being granted in as little as 1 month from lodgement.
• Once invited to apply for the Global Talent Visa, the pathway to permanent residence is much more certain and it is not the subject to months if not years of processing which is the case with other visa programs such as the 190. The government sees this as a much more targeted approach to attracting talent in sectors seen as critical to Australia.
• Because the visa is not tied to an employer, there is no training levy which can be a saving of AU$3,000 or AU$5,000 depending on the size of the employer.
• Our international borders have been practically closed since last year, however if granted a visa through Global Talent Visa program, no exemption to enter Australia is required from the Australian Border Force as individuals are granted Australian permanent residence and are free to travel.
• The visa is granted without any employment limitations or conditions. This means individuals are free to move roles and/or employers.
• Being a permanent resident provides a pathway to Australian citizenship.

Who can apply for the Global Talent Independent Visa Program?

Whether overseas or in Australia, individuals eligible for the Global Talent Independent Visa program can lodge their Expression of Interest (EOI). This is part of the process that we most love working on in our office as it allows us the opportunity to put arguments forward as to why a candidate would be so attractive to Australia.

If invited to apply, a visa application is then lodged under the GTIP pathway. Given the recently relaxed rules, anyone in Australia who holds a valid visa can now apply for a Global Talent visa provided they meet the usual requirements. This has certainly broadened the number of eligible applicants as prior to this change only certain visa holders were able to apply for a Global Talent visa from within Australia.

What do I need to apply for the Global Talent Independent Visa Program?

To be eligible you will need to show that you:

• are distinguished in in one of the identified Global Talent Visa industries: AgTech; Space & Advanced Manufacturing; FinTech; Energy & Mining Technology; MedTech; Cyber Security; Quantum Information, Advanced Digital, Data Science & ICT;
• have an Australian nominator;
• are able to earn above the Fair Work High Income Threshold (FWHIT) (currently AU$153,600 per annum) in Australia which can be demonstrated with evidence of current earnings, future job offers or recent PhD graduates in the target sectors.

Australian Nominator for the Global Talent Independent Visa Program

You will need an Australian citizen or Australian organisation to nominate you for the Global Talent visa. There is no fee payable with the nomination, and there are no ongoing obligations for your nominator.

The nominator should be in a position of expertise in Australia in your field so as to be able to verify that you have the international reputation and that you should be granted a Global Talent visa.

Ajuria Case Study

Anna is working in San Francisco as a Software Developer. Whilst she met all requirements for the GTIP visa, she did not have an Australian nominator. This was arranged through the IT professional body whom after assessing her skills, were able to nominate her for the role.

Your Ajuria GTIP lawyer can assist you in working out who should be your nominator.

Ability to earn more than AU$153,600

You do not need to show that you are currently earning more than this amount to be granted a Global Talent visa, although if you do earn more than this it will certainly help the application. The requirement is only that you demonstrate that you have the potential to earn that amount of money.

Ajuria Case Study

Laksh is a medical researcher working in Australia for a State government. His current annual salary is $98,000 which is less than the required $153,600 for the Global Talent Visa. By doing market research and collecting evidence of salaries in the private sector for similar type occupations we were able to argue that Laksh has the capacity to earn above the $153,600 threshold based on his projected career advancement.

We can help you work out the best way to prove your ability to earn enough money for the Global Talent visa especially if you are a recent PhD graduate.

Is there a limit on how many Global Talent visas that can be granted?

Since its inception the program has now expanded to 15,000 per year.  With the next immigration program year being opened on 1 July, we expect to see many more grants in this category.

What is the process of applying for a Global Talent visa?

Our office is helping lots of amazing applicants with this program. We have developed a 3 step process with fees being incurred per stage and not all up front:

Ajuria Lawyers  – GTIP stage 1:    Eligibility Assessment by a GTIP experienced lawyer in the firm

Ajuria Lawyers – GTIP stage 2:     EOI for the GTIP prepared and lodged with Home Affairs

Ajuria Lawyers – GTIP stage 3:     Preparation and lodgement of the Global Talent visa with Home Affairs

How can Ajuria help you obtain a Global Talent visa?

Our GTIP lawyers have a lot of experience with the Global Talent Visas and can help you make a successful application.

We will help:

1. Prepare and lodge your expression of interest making sure we focus on all the factors that the Australian government is looking for.
2. Work with your nominator and referees to build the strongest supporting evidence possible for your case.
3. Gather evidence of your earning capacity in Australia.
4. Prepare, lodge and then navigate your visa application through the process to approval.
5. Help you understand how you can obtain Australian citizenship if that is your goal.

How much does it cost to lodge a Global Talent visa?

The costs of the Global Talent visa varies greatly depending on the individual and their personal circumstances. Ajuria Lawyers’ process is simple and fees are in line with the 3 stages as set out above. If you engage our services, fees are paid in instalments as the matter progresses and are all disclosed upfront through a formal fee agreement compliant with the rules as regulated by the Law Society of NSW. This fee agreement states your Ajuria GTIP lawyer that will work on the application and will itemise out all disbursements expected to be incurred. Our fees are transparent and clear with no surprises.

What are Ajuria Lawyers’ success rates with the Global Talent visa?

Our team has been very successful with this program which is largely to do with the calibre of our applicants, but also because our GTIP lawyers carefully assess the eligibility before processing to prepare the EOI.

Common mistakes with the Global Talent visa

We often see failed EOIs not prepared by our team. The theme that they all have in common is the lack of information and lack of supporting arguments. The EOI is an extremely important step and we work strategically with our clients to ensure the paperwork meets the Government guidelines which invariable are subject to constant change.

Health waivers under the Global Talent visa

Global Talent visa applicants and their families are now be able to seek a waiver of the usual health requirements if they suffer from a disease or condition that would otherwise have resulted in a visa refusal. Although the Department will still need to assess the likely costs of any health condition and decide whether to grant the visa despite these costs, it means that many families who would otherwise have been ineligible for Global Talent visa can now apply.

Ajuria Lawyers lobbied strongly for this change and celebrated when it was recently introduced. Our experienced lawyers have extensive expertise in dealing with visa health waivers. This ranges from working with medical specialist to argue a reduction on assesses costs to successfully arguing why a waiver should apply.

Visa holders in Australia

If you have questions or want to learn more about how the Global Talent visa could help you, please contact your Ajuria lawyer.

If you are an employer and are interested in offering this pathway for your staff, we would love to help!

How do I get an assessment done to see if I am eligible for the Global Talent visa?

The first thing is to contact our office and speak to one of our GTIP specialist lawyers. You can book an appointment here.

DISCLAIMER This information is current as of 11 February 2021 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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Since its launch in November 2019, the Global Talent Visa Program has generated a lot of interest. Over 5000 Global Talent Visas have already been issued so far [see our previous article on the Global Talent visa].

With increased scrutiny of other permanent residence programs, the Global Talent visa is increasingly popular.

What is the Global Talent Visa Program?

The Global Talent program, commonly referred to as the GTIP, seeks to attract ‘the best and the brightest’ from around the world. This is achieved by offering a streamlined and priority pathway to Australian permanent residence.

The program is primarily design to grow Australia’s tech and innovation economies, promote innovation and build more opportunity for Australian job growth.

Even with COVID these applications are being processed and granted in about 2 to 3 months and in some cases even quicker. Being a permanent residence visa, the Global Talent program allows holders to travel into Australia without the need to seek a travel exemption overcoming the border restrictions. It is important to note you will still be required to quarantine. For more information on the program see Australian Government website.

What do I need to apply for the Global Talent Program?

To be eligible you will need to show that you:

• are distinguished in in one of the seven identified Global Talent Visa industries: AgTech; Space & Advanced Manufacturing; FinTech; Energy & Mining Technology; MedTech; Cyber Security; Quantum Information, Advanced Digital, Data Science & ICT;
• have an Australian nominator;
• are able to earn in Australia above the Fair Work High Income Threshold (FWHIT), currently $153,600 per year which is demonstrated with evidence of the current earnings, future job offerings or recent PhD or Masters graduates in the target sectors.

The Global Talent visa has two steps:

1. Invitation to Apply
   An Expression of Interest needs to be submitted outlining why you believe you should be granted a Global Talent Visa. This EOI needs to be put your case in the best possible light and it probably the most important part of the application to get right. Our success rate on invitation is close to 100%.
2. Global Talent Visa Application
   If you are invited to apply for the Global Talent Visa you will need to make a visa application with all of the supporting information, including your nomination by an Australian. To be granted the Global Talent visa you will need to prove all the things you have said in the EOI and meet health and character tests. The government fee for the application is $4110.

Distinguished career

The Global Talent Visa requires applicants to have an international reputation in their field.

This can be most easily demonstrated by people who have a public profile of some sort or who have won awards or registered patents but even without these things it is still possible to be granted a Global Talent Visa.

Ajuria Case study:

Norman is a Civil Engineer working on large scale infrastructure projects in a very senior role. Whilst he meets the salary and all other requirements for the Global Talent Visa, he has never published any papers, registered patents or won any awards. However, given the seniority of his profile, professional qualifications and expertise in large tunnelling projects the requirements for the EOI and Global Talent Visa were met and Norman and his family were granted Australian permanent residence.

If you are unsure about this you should make an appointment to speak to one of us and we can work out whether your background is likely to be accepted by the Department.

Australian Nominator

You will need an Australian citizen or Australian organisation to nominate you for the Global Talent visa. The nomination does not cost anything and does not come with any ongoing obligations.

This person or organisation does not need to know you personally but should be in a position of expertise in Australia in your field so as to be able to verify that you have the international reputation and that you should be granted a Global Talent visa.

Ajuria Case Study

Anna is working in San Francisco as a Software Developer. Whilst she met all requirements for the GTIP visa, she did not have an Australian nominator. This was arranged through the IT professional body whom after assessing her skills, were able to nominate him for the role.

If you need help working out who should be your nominator you can book an appointment to speak to one of us about it and we may even be able to help you find a suitable nominator if you do not have one.

Can earn more than $153,600

You do not need to show that you are currently earning more than this amount to be granted a Global Talent visa, although if you do earn more than this it will certainly help the application. The requirement is only that you demonstrate that you have the potential to earn that amount of money.

Ajuria Case Study

Laksh is a medical researcher working in Australia for a State government. His current annual salary is $98,000 which is less than the required $153,600 for the Global Talent Visa. By doing market research and collecting evidence of salaries in the private sector for similar type roles we were able to convince the Department that Laksh had the capacity to earn above the $153,600 threshold even though he is not currently earning that.

This is even easier to prove for recent PhD or certain Master’s graduates.

We can help you work out the best way to prove your ability to earn enough money for the Global Talent visa.

Other matters – Global Talent Visa Program

In addition to the above you will need to make sure that your Global Talent visa application is carefully prepared and that you have all the right evidence needed to prove your case to the Department. Not getting this right will lead to delays and could result in a rejection of your application. You will also need to demonstrate that you and your family meet all the health and character requirements.

How can Ajuria help you obtain a Global Talent visa?

We have a lot of experience with Global Talent Visas and can help you make a successful application.

We will help you:

1. Prepare and lodge your expression of interest making sure we focus on all the factors that the Australian government is looking for.
2. Work with your nominator and referees to build the strongest supporting evidence possible for your case.
3. Help gather evidence of your earning capacity in Australia.
4. Prepare, lodge and then navigate your visa application through the process to approval.
5. Understand how you can obtain Australian citizenship if that is your goal.

If you would like to know more, just make an appointment with one of our lawyers or partners by booking here. The cost of your consultation will be deducted from the costs for your visa. Get in touch today.

Book Appointment

DISCLAIMER This information is current as of 28 September 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The pandemic has certainly created immense disruption to international business travel and mobility of workers across borders due to border closures, loss of flight routes, consulate closures, and outright visa bans. The rules are constantly changing and are proving difficult for businesses to navigate. The US immigration system has had a turbulent year, but one visa type has remained a valuable and consistent tool for Australian businesses seeking to send employees to the US to work and do business: the E-3 visa.

What is an E3 visa and who can get one?

The E-3 visa is a US work visa only granted to Australian citizens. It was negotiated out of the Australia – US free trade agreement in 2005. Australia is one of only five countries – Chile, Singapore, Canada, and Mexico being the four others — to have a nationality-specific US work visa available to its citizens.

The E-3 visa allows approved Australians to work in the US for 2 years and can be readily and indefinitely renewed.

Importantly, the E-3 visa has a significantly smoother and less burdensome application process than other US work visas which the rest of the world has to use. The E-3 visa is applied for directly at a US Consulate rather than requiring a petition to be first approved by USCIS, a long and expensive process, as is the case with most other work visa types such as the H-1B.

The essential requirements of an E-3 visa are a US job offer from a US-based sponsor in a professional role (one that usually requires a Bachelors degree or higher) with the applicant holding a Bachelors degree (or 12 years of professional experience in lieu). The wage paid to the applicant must be above the published “prevailing wage” for the role’s occupational category in the metropolitan area(s) where the employment will be based.

What are the strategic advantages for companies

The E-3 visa should be viewed by Australian businesses seeking to expand and grow into the enormous U.S. market as a valuable strategic and competitive tool. Doing business in the US usually requires an on-the-ground presence, especially when it comes to sales, deals, and negotiations: customers, investors and other partners usually expect to see a real U.S. presence before proceeding to do business with an organisation. When evaluating potential overseas jurisdictions for investment and growth, ease of doing business including mobility of talent should be considered as key criteria by Australian companies, and the special advantages Australia possesses into the U.S. should be contrasted with the relative difficulties and lack of special arrangements with other large markets.

The E-3 visa presents a unique strategic advantage for Australian businesses, not only individual Australian professionals, ranging from start-ups to SMEs and large corporate enterprises that seek to expand and grow in the United States.

Here are a few key advantages:

1. Most other countries have no E-3 visa type option: even other close allies of the United States such as the UK do not have special US work visa categories like the E-3. All but a handful of countries must use more difficult and restrictive visa categories such as the H-1B and L-1. These are subject to caps, random lotteries, inflexible timelines, political and bureaucratic scrutiny, higher costs, and other challenges. Below is a handy table detailing the main differences between these visas.
2. E-3 visas are not subject to travel restrictions – currently there is a ban on non-essential entries into the US from travellers originating from Schengen area (Europe), the UK, and China. These zones make up roughly a third of all global GDP – firms in these areas currently cannot send their employees into the US without exemptions, and these exemptions currently carry a very high bar. No such ban has ever been placed on travellers from Australia due to the excellent handling of the pandemic here as well as the special diplomatic relationship that exists between the two countries. No mandatory quarantine is in place in the US.
3. E-3 visas are not subject to Trump employment visa ban – bans implemented by the Trump administration on employment-based visas including the H-1B and L-1 will remain in place until March 2021. The E-3 visa was not banned. Australia has a further coveted position in the world at the moment: most U.S. Consulates globally, especially those in Europe, Latin America, India and China have suspended routine consular operations for most of the pandemic, making it nearly impossible to apply for a U.S. visa. U.S. Consulates in Australia resumed routine processing in November 2020 and now have resumed regular E-3 appointments.

Comparison of the main US work visas

	E-3 Australian citizens	H-1B	L-1 Intracompany Transfer
Petition required to be lodged with USCIS?	No	Yes	Yes
Lottery / Caps	No lottery.   10,500 per year – never attained. Usually ~5,000 issued per year.	Lottery once per year – April – currently random selection with ~33% odds, possibly switching to wage-prioritised selection	None
Timeline for hiring someone outside of the US	With emergency appointment at US Consulate based on urgent business need: potentially as soon as 7 working days   Standard process: depends on availability of appointments. US Consulate Melbourne, usually 2-4 weeks. Sydney: 6 weeks	Prepare and lodge petition during “cap” season before lottery – March. Wait for lottery. If successful, employment start date cannot be sooner than 1 October.	Lodge petition with premium processing (add’l fee) with USCIS by mail.   Response within 3 weeks unless request for evidence is made (likely).   If approved, arrange and attend visa interview at US Consulate (4-6 weeks)
Degree Required	Yes or 12 years of professional experience in lieu	Yes or 12 years of professional experience in lieu	No (with caveats)
Role Type	Professional – one that usually requires a degree.   Role will be classified into one defined occupational category	Professional – one that usually requires a degree   Role will be classified into one defined occupational category	L-1A: must be a managerial/executive position with commensurate responsibilities and organisational ranking   L-1B: must be a “specialised knowledge” worker – discretionary in nature.
Salary Requirements	Yes. Salary must be at or above “prevailing wage” for the selected occupational category in the metropolitan area the work will be performed in.	Yes. Salary must be at or above “prevailing wage” for the selected occupational category in the metropolitan area the work will be performed in.	No minimum salary, but in practice, both US salary and overseas salary will be considered when assessing managerial or specialised knowledge bona fides of the proposed role.
Is prior overseas employment with the company required?	No	No	Yes – at least one year full-time with the foreign entity over the last three years
US Payroll Required	Yes	Yes	No
Validity	2 years with indefinite renewals as long as “non-immigrant intent” is maintained	Usually 6 years	Maximum 7 years
Government fees	$205 USD	$460 USD (petition) + $500 USD fraud prevention fee + $2,500 USD (premium processing) + $190 USD (visa)	$460 USD (petition) + $500 USD fraud prevention fee + $2,500 USD (premium processing) + $190 USD (visa)

DISCLAIMER This information is current as of 19 January 2021 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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We are very excited to introduce our new Global Services Manager, Sherwin Noorian who has recently joined our Sydney office.

Sherwin is a US Immigration Attorney and a Registered Foreign Lawyer in NSW.

Sherwin has a wealth of experience in consular processes that are the cornerstone of the immigration and visa processes of many countries.  For the past seven years he has assisted companies moving essential employees to the US for work as well as individuals such as athletes, entertainers, investors, and entrepreneurs needing help with the US visa system.

At Ajuria Lawyers, Sherwin heads up our rapidly growing Global Services division which helps companies based in Australia send employees to other countries for work.

Our Global Services offer a unique VIP solution focussed on compliance and a fantastic employee experience regardless of which country your people need to travel to. We are currently assisting clients with visas to the US and many countries in the APAC region.

If you would like to know more about how Sherwin and the team can help you with visas to countries other than Australia you can contact him at global@ajurialawyers.com  or on +61 2 9222 6100.

Sherwin will be hosting a webinar on US visas and the current immigration landscape in the US at 10am AEDT on Wednesday, 9 December 2020.

Register to attend

DISCLAIMER This information is current as of 30 November 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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A big sigh of relief for employers and their employees today with the introduction of regulations to protect the permanent residence pathway of most 457/TSS visa holders who have been (or will be) impacted by changes to their employment caused by COVID-19.

• Any 457/TSS holder wishing to apply for permanent residence through the Employer Nomination Stream (ENS) may still be able do so even if they have been temporarily stood down, on unpaid leave, or working reduced hours because of COVID-19.
• Employees who were planning on relying on the age exemption can continue to do so even if their salary has fallen below the High Income Threshold because of COVID-19.

These changes apply to changes in employment arrangements since 1 February 2020 until further notice.

Employers will still have to demonstrate that the position being offered is permanent, full-time and for at least two years. We expect the Department will continue to require employers to evidence that the position is genuine especially in industries severely impacted by COVID-19.

All cases need to be assessed individually but this welcome change clarifies the government’s position to support permanent residence despite COVID-19. Contact your Ajuria team for further information and assistance.

For more information about how COVID-19 changes may impact immigration and employment law join our webinar on Thursday, 3 December 2020 at 11am AEDT.

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DISCLAIMER This information is current as of 24 November 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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Year end means staff review time for many businesses.

With the end of the year fast approaching, it is important to remind businesses who employ 457/TSS visa holders, that these employees have been approved to work only in their nominated occupations. While a promotion within the same occupational stream (and any associated salary increase) will generally comply with their 457/TSS visa conditions, a move into a different role must be carefully considered.

If deemed to be in a different occupation, it will be necessary for the business to lodge a new nomination application, with any required Labour Market Testing. If the employee is a TSS visa holder, a new TSS visa application will also be required to confirm that they meet the skill requirement for that occupation.

Please feel free to discuss any proposed role changes with your Ajuria adviser to ensure that your visa holders will continue to be compliant.

If you want to discuss PR options and find out about the Global Talent Program for those on salaries above the Fair Work High Income Threshold please contact us.

DISCLAIMER This information is current as of 20 November 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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In a welcomed move that further entrenches the government’s commitment to the Global Talent visa program, the government today announced changes that will assist Australia to compete with other countries such as Canada, the US and the UK for the top talent from around the world. The changes commence on 14 November 2020.

These changes come only a month after the government announced a massive expansion of the Global Talent visa program to some 15,000 visas per year and marks a clear policy shift by government away from independent skilled migration under the points test towards a much more targeted approach to attracting talent in sectors seen as critical to Australia’s growth.

Health waiver
Global Talent visa applicants and their families will now be able to seek a waiver of the usual health requirements if they suffer from a disease or condition that would otherwise have resulted in a visa refusal. Although the Department will still need to assess the likely costs of any health condition and decide whether to grant the visa despite these costs, it means that many families who would otherwise have been ineligible for Global Talent visa can now apply.

Visa holders in Australia
Anyone in Australia who holds a valid visa can now apply for a Global Talent visa provided they meet the usual requirements [see our previous article]. Prior to the change only certain visa holders were able to apply for a Global Talent visa from within Australia. This will broaden the number of eligible applicants.

If you have questions about how these changes might apply or to learn more about how the Global Talent visa could help your business, please contact your Ajuria Manager.

 

DISCLAIMER This information is current as of 13 November 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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In this special hospitality update we are bringing you the latest news and insights. We expect that things will continue to change and we will update you as they do. We know that pressure is mounting on our hospitality clients because of delays in processing and a lack of clarity from government about what to expect and what they intend for migration for the industry. If you would like to arrange a time to catch up and speak about any of these issues and how we can help, please just reach out.

Occupation lists
No changes were announced in the budget to the occupation lists. A review of the lists usually occurs in March and so no changes are anticipated before then.

Visa processing
On 1 September 2020, a new direction was issued which introduced the Priority Migration Skilled Occupation List (PMSOL). Occupations on this list will be processed first as will regional visas/positions, investment visas and partners. Accredited sponsors will still be given second priority for occupations which are not on this list. All other sponsors and occupations will then be processed last.  As there are no hospitality occupations on the PMSOL, we can continue to expect very slow processing for any hospitality client.

The Department continues to process applications lodged overseas, however they are prioritising applications for immediate family members of Australian Citizens and permanent residents with an urgent need to travel, as well as applicants providing critical or specialist skills in support of the Government’s response to COVID-19 and economic recovery. While this includes employees in ‘food production’ this does not include restaurants, cafes, bars or clubs and such applicants must otherwise demonstrate how they are in critical roles or fall into one of the other exemption categories. This is difficult to demonstrate.

Nomination transfers
Employers seeking to hire and transfer the sponsorship of an existing TSS visa holder should be aware that the visa holder will not be able to commence work until AFTER the nomination has been approved. As this could take months to process, caution should be exercised in offering roles that depend on such a transfer. Employing a TSS visa holder prior to approval of the nomination is an offence under the Act and could lead to serious sanctions.

Overseas visa holders
Australia continues to have strict border measures in place. Added to this, there are very limited flights are currently available to and from Australia. All travellers arriving in Australia, including Australian citizens, are subject to mandatory quarantine for 14 days at a designated facility, such as a hotel, in their first port of arrival.​ Quarantine exemptions are extremely difficult and rare – even if the person has previously had COVID.

Overseas visa holders must still seek a travel exemption before being able to travel to Australia. Those visa holders on the PMSOL are deemed to be critical and are generally given exemptions to travel however will still need to submit a request and be assessed on a case by case basis.

Employees in occupations outside of the PMSOL and their family must demonstrate a very strong business case that they have skills critical to Australia’s pandemic response or economic recovery or a highly compelling and compassionate case for personal reasons.

The Government announced in the budget that TSS visa holders who had to return home and who are unable or unwilling to return will be able to seek have Government fees waived for a second TSS visa application (not the training levy) but no details of when, how much or the process have yet been released.

Working holiday makers may be able to get a refund on the fees they are already paid if they left due to the pandemic or were unable to make their first entry.

New labour market testing requirements for temporary visas
New labour market testing (LMT) requirements came into place for TSS applications (Subclass 482) and Employer Sponsored Regional (Subclass 494)  applications lodged after 1 October 2020.

Unless one of the exemptions/alternative evidence categories applies, businesses are required to advertise their vacancies on Jobactive, in addition to at least two other national reaching advertisements. For accredited sponsors, one of these can be on the sponsor’s website.

Apart from the added Jobactive requirement, we are also expecting more scrutiny with sponsor’s LMT efforts. The Government is gathering data through Jobactive and sponsors will be expected to provide detailed reasoning that the role could not be filled locally. Clients can expect to be put to proof as to why no Australians were found to be suitable for the role. This will include situations where there is an incumbent foreign worker already in the role.

Labour market testing for permanent visas
In September 2020, the Government flagged a new requirement for LMT for 186 PR  applications, even if the employee had already been in the role for the required 2 or 3 years. These changes did not come through on 1 October and whilst clarity has been sought from the Department, this has not yet been implemented.

Whilst it appears (to be confirmed) there won’t be a strict LMT requirement for PR applications, we are already seeing the Department apply a stricter Genuine Position assessment to applications and labour market testing efforts can assist in addressing this requirement.

Genuine Position Requirements
The legislation has always had a requirement that the decision must be satisfied that the position associated with the nominated occupation is a genuine position. This is for both temporary and permanent sponsorships.

Policy requires that case officers consider whether the position is genuine in the sense that it has not been created in order to sponsor an overseas worker.  When considering whether the position is genuine, case officers will give particular attention to:

• retrenchments by the employer in the previous 12 months;
• a reduction of hours worked by Australian workers during the previous 12 months;
• a reduction in pay and conditions of Australian workers within the previous 12 months;
• employment of one or more temporary visa holder(s) on conditions less favourable than Australian workers; and
• recruitment of one or more temporary visa holders beyond the ordinary scope of the business.

Where any of these factors apply, additional supporting material and a strong business case will be needed to satisfy the case officer that the position is genuine.

Visitor and temporary visa residents on Australia
Temporary visa holders who are unable to leave Australia before their current visa expires must apply for a new visa. Visas cannot and will not be automatically extended and there is an expectation that visa holders will take action to apply for new visas or depart. To be eligible for the grant of a visitor visa or a COVID visa in Australia, applicants must meet all criteria that includes having access to adequate means of support and be assessed as intending to comply with visa conditions.

If the grant of a Visitor visa would result in the applicant being authorised to stay in Australia for more than 12 consecutive months as the holder of one or more Visitor, Working Holiday, Work and Holiday or Bridging visas, exceptional circumstances must exist. This requirement is likely to be met for applicants assessed as being unable to depart. If anyone has become unlawful, they can apply for a Bridging Visa E.

Updated information for visa holders and applicants on staying in Australia can be found on the Department of Home Affairs’ website.

 

DISCLAIMER This information is current as of 29 October 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Have more specific questions about your visa? Get in touch with Ajuria Lawyers today.

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