Year end means staff review time for some businesses.

With the end of the year fast approaching, it is important to remind those who employ 457/TSS visa holders, that these employees have been approved to work in their nominated occupations only. 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 Business Nomination, with any required Labour Market Testing; if a TSS visa holder, also a new Visa Application, to confirm that the visa holder meets the TSS 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.

DISCLAIMER This information is current as of 29 October 2019 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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DISCLAIMER This information is current as of 29 October 2019 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.

Ajuria Lawyers has built its reputation on providing immigration services for Australia.

As the needs of clients have changed, we have responded to their requests for visa services into other countries.

Since its launch in early 2019, there has been a strong demand for New Zealand work visas, with Karen Justice heading up Ajuria New Zealand.

In addition, in a number of other jurisdictions (USA, India, the UK), we have partnered with immigration professionals who share our knowledge of, and passion for immigration law, supported by high service standards.

Your Ajuria adviser can manage the process for you, so please feel free to discuss your business requirements with us.

DISCLAIMER This information is current as of 29 October 2019 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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DISCLAIMER This information is current as of 29 October 2019 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.

Sponsoring employers are aware of the need to prove that a vacancy cannot be filled from within the local market, prior to formalising an employment contract and submitting an application for a TSS visa.

Labour Market Testing usually means providing evidence of two forms of advertising over a 28 day period within the 4 months immediately prior to application.

The Department of Home Affairs is moving with the times, having recently confirmed that advertising on Gumtree will now be acceptable for its labour market testing purposes, as long as the vacancy is listed in its jobs section.

Other recruitment websites that are acceptable include SEEK, Indeed, Adzuna, JobActive, and LinkedIn (Recruitment platform).

DISCLAIMER This information is current as of 29 October 2019 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.

In early 2019, the Government announced changes to the Working Holiday Visa program, to enable visa holders who worked for 3 months in a regional area to obtain a second visa, and those who worked for a further 6 months in a regional area to obtain a third visa.

The Government has recently announced a 20% increase in the number of second year Working Holiday Visas granted in the last financial year.

Historically, the Working Holiday program has been promoted as primarily for the purpose of cultural exchange, however the focus has shifted markedly, with working holiday makers now seen as part of the skills shortage solution for regional Australia.

The Government has also announced an expansion of the program with an increase in the number of places available for citizens of Spain (by 900 places), Israel (by 2,000), Peru (by 500), Chile (by 1400), Argentine (by 950), Malaysia (by 1,000), Singapore (by 2,000), Portugal (by 300), Greece (by 500) and Ecuador (by 100).

For more information on the various Working Holiday Programs, please contact our office.

DISCLAIMER This information is current as of 29 October 2019 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.

Ajuria Lawyers has updated its FAQs on its website. We would love to know whether you find this information useful. Please take a look and let us know.

https://ajurialawyers.com/faq/

DISCLAIMER This information is current as of 29 October 2019 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 New Zealand Government has announced changes to the work visa process, increased remuneration thresholds and the re-opening of the parent category that has been closed since 2016.

Whilst a lot of detail is yet to be released, this month Ajuria New Zealand provides an overview of the changes that will affect employers.

Work to Residence Talent (Accredited Employer) Remuneration Increase

Effective from 7 October 2019, the new minimum base salary for those applying for a Talent (Accredited Employer) work visa increased from NZ$55,000 to NZ$79,560 for a 40 hour week.  This new threshold applies to all new visas applied for on or after 7 October (ie those who already hold Talent visas are not affected by these changes, and employers do not need to give those employees a pay increase to meet the threshold.)

Essential Skills Work Visa changes

These changes will be phased in during 2021, so are still a little way off.  However, the structure of the new work visa process will be somewhat familiar to those in Australia.

The new regime will see all employers requiring to hold an accreditation status with Immigration New Zealand.  Then, once this is in place, there will be a ‘job check’ (similar to the nomination application in Australia) and then the last part will be the actual ‘worker check’, or visa application.

In a very welcome move, the need for an ANZSCO classification of the occupation will be removed, and instead the visa length will be based on remuneration alone.  Labour market testing will also be removed for those earning above the median wage, and located outside of the main centres.  Those in lower paid roles will have the ability to support family members reinstated.

In our next newsletter, Ajuria New Zealand will outline the changes to the Parent visa category, and advise of other significant changes as they are announced.

DISCLAIMER This information is current as of 29 October 2019 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.

Temporary visa holders who have left the employment of their sponsor, often contact us to ask if there is anything they need to do.

From an immigration point of view, the onus is on the sponsor to notify the Department of Home Affairs within 28 days of the visa holder ceasing employment. This is a legal requirement as part of the employer’s sponsorship obligations. Ajuria Lawyers is able to provide this notification to the Department on the employer’s behalf.

However, this notification does not automatically result in cancellation of the 457/TSS visa.

Visa holders who have left Australia permanently and wish to access their superannuation funds in an Australian account must wait for their visa to be cancelled, or request that the Department of Home Affairs cancel their visa quickly. Ajuria Lawyers is also able to assist with this, otherwise, the individuals are able to create an ‘ImmiAccount’ and ask for their own visa cancellation, or download a Form 1194 and email it to super.payment@homeaffairs.gov.au

Once the visa cancellation is confirmed, the individual may apply online to the ATO to access super here.

DISCLAIMER This information is current as of 29 October 2019 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.

Some good news to end the week: the Department of Home Affairs has announced that it will not be implementing a recently announced policy change requiring employment contracts for TSS applicants to have an end date.

The change of approach has come about as a direct result of concerns raised by employers and immigration lawyers about the impact of this requirement on sponsors.

In announcing the change of approach, the Department stated:

Ultimately, the intention (of the policy) was to avoid permanent or ongoing contracts being issued to nominees for what is ostensibly a temporary nominated position in the sponsor’s business. It was also intended to ensure sponsors genuinely test the labour market (where this is a requirement) prior to re-employing existing TSS visa holders who have previously been working in the nominated position.

As a result, sponsors now have the choice of either amending their employment contracts for TSS visa applicants to include an end date, or to leave them as they are.

Visa processing officers have been notified that applications should be assessed without an expectation for contracts to have an end date. However it is important for our clients understand that the Department’s view is very clear that the TSS is a temporary visa and that Labour Market Testing efforts are being carefully scrutinised to ensure that they are genuine and not just undertaken to meet visa requirements.

For further information please contact our office.

DISCLAIMER This information is current as of 25 October 2019 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.

A couple of recent policy updates relating to employment contracts require immediate attention of sponsoring employers for TSS visas.

The purpose of providing an employment contract is to confirm that the details of employment align with those provided in the nomination, and to confirm that the employment is in accordance with Australian terms and conditions.

While it is generally only “non-accredited” sponsors that are required to submit employment contracts with their nomination applications, it is assumed that ALL sponsoring employers will comply with new policy requirements, specifically:

1. The employment contract cannot be for longer than the maximum period of stay of the TSS visa, meaning that the contract cannot imply ongoing or permanent employment. On a practical level, since the date of approval of the visa is unknown at the time of application, Ajuria Lawyers suggests that contracts could offer employment for the proposed period of the visa (1, 2, 3 or 4 years, as applicable) from the date of approval of the visa.
2. The employment contract cannot pre-date the completion of the labour market testing. The Department expects that the contract is only finalised once the sponsor has confirmed that a suitable local candidate is not available to fill the position.

Failure to comply may result in the nomination being refused, and / or may also have consequences for the sponsoring employer if the sponsor is the subject of monitoring or an audit.

Ajuria Lawyers recommends that sponsors seek the advice of their employment lawyer and ensure that these changes are incorporated in all new employment contracts. Your adviser will also discuss the impact of these changes on any lodged or pending nominations, to ensure compliance with these recent policy shifts.

DISCLAIMER This information is current as of 16 October 2019 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.

In both Australia and New Zealand, the ANZSCO dictionary of occupations is used by immigration authorities as its primary reference for determining the roles that are or are not suitable for immigration purposes.

Clients will be familiar with the need to confirm the suitability of a particular ANZSCO classification for a particular role and often find this challenging because of the lack of relevant classifications.

The current ANZSCO dictionary was last revised in 2013. Many of today’s fastest growing jobs in the Australian economy did not exist in 2013, and as a result, the occupations lists, upon which the visa programs are based, are seriously out of date.

There have been widespread calls for urgent review of ANZSCO, however according to the Australian Bureau of Statistics, this is unlikely to occur until after the 2021 Census.

Until then, advisers on both sides of the Tasman, will be challenged when trying to find appropriate classifications especially for occupations in fast-moving and newly emerging industries.

However there is some encouragement for employers and advisers that Australia’s skilled occupation lists are under review (See separate article), even if ANZSCO is not.

DISCLAIMER This information is current as of 18 September 2019 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.