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.

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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.

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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.

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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.

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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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Since the pandemic broke there has been two trains of thought as to what will happen with the government’s policy on migration and the re-opening of our borders. Will higher unemployment levels mean a drop in need for skilled workers with corresponding tougher policies, or will the need to stimulate the economy and support industry mean temporary visa programs continue at high levels?

The most recent announcement by government offering refunds and waivers of visa application fees to visa holders stuck overseas and needing to reapply for visas or no longer needing to enter Australia, suggests that temporary migration is still recognised as essential to business in Australia and is good news for clients.

Although there has been no details released of when the refunds or waivers will be implemented or what the eligibility criteria will be, yesterday’s announcement is as follows:

TSS (Subclass 482) and 400 visa holders

• This waiver applies to those visa holders who have not made their initial entry to Australia, or have returned home due to COVID-19.
• The government will offer a waiver of the visa application charge for subsequent applications by affected temporary employer sponsored skilled migrants.
• Visa applications will still be subject to the strict labour market testing requirements with no concessions expected unless these already exist.

Visitor visas

• With visa expiries between March 2020 and December 2021 are eligible to have the government fee waived.

Working holiday makers

• Those who could not come to Australia or had to leave early due to COVID will also be eligible for a fee waiver.
• Those unable to return as they have passed the age limit of 31 or 35 will be able to claim a refund.

Prospective Marriage visa holders (subclass 300)

• These generally provide 9 months to travel to Australia to marry an Australian citizen or permanent resident.
• Refunds will be available for those who were unable to enter Australia before their visa expired, due to the travel ban.

The government is hoping these measures will help support the rebound of Australia’s $45 billion international tourism sector when international travel restrictions ease. It also sees Working Holiday Makers as a major contributor to Australia’s tourism industry filling critical workforce shortages, particularly in regional and rural Australia contributing more than $3 billion a year to the economy and supporting local jobs.

More details will be provided as soon as these are released.

DISCLAIMER This information is current as of 13 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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The Australian Federal Budget handed down on Tuesday contained a number of measures affecting the migration program. Several changes may impact partner visas, which provide a pathway to permanent residence for the spouses and de facto partners of Australian citizens and Australian permanent residents.

1. The number of visas available to partners will increase from about 39,000 for this year to some 72,000. This should mean some improvement in processing times for at least those applicants in Australia (currently around 18 -24 months).
2. Applicants and sponsoring Australian permanent resident partners MAY be required to demonstrate that they both have functional English by undertaking an English test, or completion of 500 hours of an English language program, prior to the grant of permanent residence.   It is expected that Australian citizen sponsors will not need to prove English.

This is in keeping with Acting Minister Tudge’s  announcement last month on increasing access to the Adult Migrant Education Program.

No further details have yet been announced about when the English requirement will come into effect, or whether there will be any exceptions. These details will be announced when legislation and supporting policy is released. As it will require a change to legislation, the proposed changes may not even be passed by the Parliament.

In addition, to the possible English language requirement, the sponsoring Australian citizens or permanent residents will need to be approved as a family sponsor before their partners can lodge a visa application.   This is a change that has been in the works for many years and which is intended to make it harder for partners to lodge applications in Australia.

There is no known date yet for these changes. Until that time the current rules continue i.e. currently partners can lodge the visa application without the sponsor being approved first and there is no English language requirement.

We will be closely monitoring developments on these changes and will let you know as soon as we know more.

If you have concerns please contact your Ajuria team member.

DISCLAIMER This information is current as of 8 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.

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Government confirms 3 adverts needed

On 1 October we provided an update on the changes to the Labour Market Testing requirements for sponsoring TSS visas.  We now have a further update!

We queried this with the Department of Home Affairs and they wrote to us earlier today to  confirm that unfortunately there has been a technical glitch and that there was a transcribing error.

This means that the correct Labour Market Testing Requirements for TSS visas for roles are to advertise the position for at least 28 days on:

a)           the Employment Department’s Jobactive website (http://www.jobactive.gov.au);
and
(b)          two or more of the following:

LMT exemptions will continue to apply as before the change.

The impact
Employers are now required to advertise the role on the Jobactive website as well as two other sites as set out above (not one as per the previous advice). This is mandatory except where the nomination is exempt from LMT.

Jobactive
As a reminder, the Jobactive website is not intuitive to use. Clients should discuss this with us but the following tips may assist you:

• You will need to register for a Jobactive account for the business if you do not already have one.  They may on registration, ask you to call them to verify business details
• The default setting is to remove the advertisement after 14 days so you should select 28 days and monitor carefully
• Postings can take 48 hours to be processed so you should post early
• You will be required to select a salary band or the posting will not be accepted
• Changes to the advertisement after posting may result in resetting the date that it was posted so it is very important to check with your Ajuria advisor that the advertisement meets all LMT requirements before posting
• Jobactive audits posts and may remove them if not satisfied they comply with their guidelines so you should monitor the advert regularly to ensure it is not removed

Please contact us if you have any questions or concerns.

DISCLAIMER This information is current as of 7 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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