We are seeing significant delays and inconsistencies for visa processing across many visa categories as we get closer to the end of year. The Department continues to make it clear that no priority requests can be made even in urgent circumstances. Any escalation requests are seen as clogging the system.

Case officers are dealing with higher volumes with less resources, potentially as they prepare for the upcoming changes to the TSS and PR programs. Ajuria Lawyers is holding a webinar on 24 October 2024 at 11am AEDT to discuss the upcoming changes to Australian work visa programs commencing November 2024. A link for registration can be found here.

Whilst the Department of Home Affairs publishes estimated processing times, however these are not what we are experiencing in practice. Our estimates are:

TSS Work Visas
Very inconsistent processing which are changing all the time. Please note these are guidelines of averages only.

Non-Accredited Sponsors
Up to 6 months

Accredited Sponsors
Up to 3 months

Permanent Residence
We continue to see very limited permanent residence visa grants with processing timeframes now reaching 12 months and over. While some business nominations continue to be approved, visa grants are being delayed. This is resulting in police clearances and health exam results expiring and being requested again by case officers.

400 Visas
These are processed by the offshore Embassy/High Commission and processing is different depending on the location of the person at the time the application is lodged. Most processed in Europe and the Americas are taking anywhere from 1-3 weeks whereas other offices may take longer. There is also a significantly higher refusal rate on these applications.

Medical examination delays
Ongoing delays in obtaining bookings for medical examinations in Australia leading to delays with grants. Visas cannot be granted until medicals are done.

Upcoming changes and uncertainty
Businesses may consider lodging TSS renewals and PR applications as soon as possible as the Government has flagged changes to the migration program coming into effect late November 2024. Whilst we do not yet know the extent of the changes and how employees will be affected, we are receiving many queries from anxious employees, and businesses may wish to look at transitioning TSS visa holders to PR before these changes come in.

The delays in visa processing will be exacerbated as we head into the end of 2024 and the month of January when processing typically slows down further.

In the meantime, Ajuria Lawyers will continue to keep clients updated with any changes.

The post Visa Processing Update – Delays for both Temporary & Permanent Residence Applications first appeared on Ajuria Lawyers – Leaders in Immigration.

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The Joint Standing Committee on Migration has now released its much-anticipated final report titled Migration, Pathway to Nation Building. This report, marking the culmination of a nearly two-year inquiry, is a critical document for employers involved in sponsoring skilled migrants in Australia. It presents a range of recommendations that could significantly shape Australia’s migration landscape in the years to come.

Key Differences from the Previous Report
This new report builds on earlier migration reviews, including the 2022 discussion paper. The key differences include:

• Detailed Pathways: The final report introduces more comprehensive frameworks, including the Skills in Demand visa, offering clear three-tier pathways — Specialist, Core Skills, and Essential Skills—to address workforce shortages.
• Permanent Residency Focus: Unlike earlier recommendations, this report puts a strong emphasis on permanent residency pathways for temporary skilled migrants, ensuring greater stability for both migrants and employers.
• Worker Protections: There is a substantial focus on reducing worker exploitation by improving mobility within the labor market, allowing sponsored migrants more flexibility to switch employers.

Key Recommendations for Employers Sponsoring Workers
For businesses involved in sponsoring skilled migrants, several recommendations stand out:

1. Skills in Demand Visa:
The report reiterates its proposal for the introduction of a Skills in Demand visa with three streams:

• Specialist Skills Pathway: For high-income earners, with applications processed within 7 days.
• Core Skills Pathway: For workers earning above $73,150 in eligible occupations.
• Essential Skills Pathway: A regulated pathway for lower-income essential workers, designed to meet critical shortages. These visas provide clear pathways to permanent residency, giving employers greater certainty when planning their workforce needs.

2. Temporary Skilled Migration Income Threshold (TSMIT):
The TSMIT will continue to evolve, ensuring that wages for sponsored workers remain competitive and align with the broader market. This means increases are to  be expected.

3. Simplifying Visa Processes:
The report emphasises the need to reduce complexities in the visa application system, recommending faster processing times and streamlining biometric data collection to enhance efficiency.

4. Worker Mobility:
Migrants sponsored through the Skills in Demand visa will no longer be tied to a single employer. This will enhance worker protections while ensuring employers have access to a broader talent pool.

5. Regional Migration:
For employers in regional areas, the report highlights the importance of tailored migration strategies, with recommendations to improve the Designated Area Migration Agreements (DAMAs) and labour agreements, ensuring that critical skill gaps in regional industries are addressed.

What’s Next?
The report is part of a broader strategy, with reforms expected to commence in November 2024. Employers should prepare for these changes, particularly in industries with high demand for skilled labor.

If you have any questions about how these changes may impact your business or sponsorship processes, please contact Ajuria Lawyers for tailored advice.

The post Migration Pathway to Nation Building Report Released – Australia first appeared on Ajuria Lawyers – Leaders in Immigration.

Ajuria Lawyers is excited to announce the expansion of our Global Visa and Immigration Services, now enhanced through our collaboration with MobilityDesk. This strategic integration brings unmatched efficiency and transparency to managing your global workforce mobility, allowing us to offer even more streamlined solutions across multiple countries.

What’s New:

1. Comprehensive Global Coverage: We’ve expanded our reach to help manage employee relocations to major markets including, the US, UK, New Zealand, and many countries throughout the APAC region. Whether your business needs assistance with work visas, consular processes, or compliance, we’ve got you covered.
2. MobilityDesk Integration: MobilityDesk allows us to provide a single-platform solution for all your global mobility needs. You can now:
   1. Easily initiate services in any country
   2. Track case progress and oversee compliance across multiple jurisdictions in real-time.
   3. Enjoy a frictionless experience with our Enter Data Once (EDO) technology, which minimizes data entry and reduces errors, ensuring efficiency throughout the visa process.
   4. Give your business a complete overview of mobility moves globally.
3. VIP Level Service: We continue to offer VIP service through one point of contact for all matters, ensuring personal and consistent support. MobilityDesk helps, not replaces the experts.

Why Choose Us:

1. Global Expertise: With our network of vetted expert partners and local professionals, we ensure compliance with the regulatory requirements of each destination.
2. Efficiency & Compliance: MobilityDesk’s secure, ISO27001-compliant platform guarantees the safety and accuracy of all processes, enhancing productivity and making service delivery more timely and efficient.

Whether your team is expanding globally or managing ongoing relocations, Ajuria Lawyers is here to streamline every step of your immigration process, backed by our world-class technology and dedicated expertise.

For more information or to discuss how we can assist your global mobility needs, please reach out to your Ajuria team or email to global@ajurialawyers.com or visit us at ajurialawyers.com.

The post Expanded Global Visa and Immigration Services first appeared on Ajuria Lawyers – Leaders in Immigration.

The Subclass 400 Temporary Work (Short Stay Specialist) visa is for skilled workers needing to come to Australia to carry highly specialised work of a non-ongoing nature.

We have been noticing increased scrutiny on 400 visa applications over the last few months, and the Department’s policy has now been updated to reflect how applications will be assessed moving forwards. It is clear that this visa is to be used for three month stays only and applying for periods of stay of up to six months is discouraged as the risk of refusal will be very high.

Most notably:

• The standard maximum stay period on a 400 visa will three months, with six months only available in exceptional circumstances.
• The total stay period across multiple 400 visas within a 12-month period will now be three months, instead of six months.
• Applications will now be scrutinised to ensure the 400 visa program is being used correctly and not to circumvent the subclass 482 TSS visa requirements and/or Australian workplace standards.
• Applicants from countries with significant pay disparity relative to Australia will also be expected to provide additional evidence.

Stay period – 3 months to be norm
The Subclass 400 visa has always provided for a period of stay of up to six months, with the expectation that the usual period of stay would be three months or less.
This will remain the case, however it will now be more difficult than ever to obtain a 400 visa for a six month stay period. Such requests will need to be supported by strong evidence that exceptional/compelling circumstances exist.

Return visits
Previously, individuals could obtain multiple 400 visas within a 12-month period, so long as the total time in Australia did not exceed six months. This will now be limited to three months.
In other words, if an applicant has previously held a Subclass 400 visa in the last 12 months, and has applied for a subsequent Subclass 400 visa, then the decision maker may consider granting the remaining balance of the normal period of stay of three months. For example, if two months is spent in Australia on the first 400 visa, then a second may be approved for a maximum stay of one month.

Increased scrutiny
The Department’s policy identifies the following circumstances, among others, as generally requiring closer scrutiny and investigation (these are just examples):

• A stay period (or cumulative stays) has been requested that exceeds three months in any 12-month period;
• An overseas employer may be seeking to fulfil multiple separate contracts in Australia;
• There are large group applications for a single project;
• Workers are being rotated through a position;
• The work to be performed falls into an occupation classification with a lower skill level.

Such circumstances could be a sign to the Department that:

• A company is attempting to utilise the Subclass 400 program for a low paid substitute workforce;
• The work may have adverse consequences for employment or training opportunities, or conditions of employment, for Australians;
• An overseas employer is seeking to send workers to Australia to fulfil multiple separate contracts in Australia, rather than investing in training opportunities for Australians;
• The work to be carried out does not involve highly specialised skills and knowledge.

Users of the Subclass 400 visa should be aware that if any of the above circumstances exist, or even appear to exist, there will be a very high risk of refusal unless sufficient evidence is provided to the contrary.

Genuine temporary entry
As the 400 visa is for non-ongoing work, applicants must genuinely intend to stay temporarily in Australia. Applicants from countries with a significant pay disparity relative to Australia will face a higher level of scrutiny in this regard.
It is also incredibly important to note that the 400 visa is not intended for subclass 482 TSS visa applicants to enter Australia to undertake ongoing work while their 482 TSS visa is applied for/assessed.

Australia’s interest stream
If the Department is not satisfied that a 400 visa applicant will be carrying out highly skilled and/or non-ongoing work, they must first consider if there are compelling circumstances affecting Australia’s interest before refusing an application.
For example:

• The entry of the person is required to assist in a disaster or emergency;
• Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or
• Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa; and/or
• Australia’s trade or business opportunities would be adversely affected were the person not granted the subclass 400 visa;
• There is an urgent need for a senior executive (e.g. CEO, Chief Financial Officer, Managing Director) of a multinational organisation to travel to Australia at short notice to commence ongoing work, and they have already applied for a TSS 482 visa, and it can be demonstrated that the seniority of the role and nature of the organisation are such that Australia’s interest is likely be affected if the position is left unfilled.

Be warned and prepared for future 400 visa applications
Moving forward, it is important to remember that:

• The 400 visa should only be used for its intended purpose – highly skilled, non-ongoing work. The subclass 482 visa should be used where an individual will be required in Australia for longer than three months.
• The Department can, and will, look into the history of a company’s use of the 400 visa to determine whether the program is being used correctly (e.g. the number of applications, the type of work to be carried out, and the number of applicants who convert to a longer stay visa onshore).
• Where applicable, evidence that the grant of a 400 visa would be in Australia’s interest should be provided with the application as a back-up.

As always please contact us if you require more information about the Subclass 400 visa or how we can otherwise help you.

The post Australian Immigration Update Change of Policy Direction on Subclass 400 Visas first appeared on Ajuria Lawyers – Leaders in Immigration.

On 4 July 2024, the Senate referred the Migration Amendment (Strengthening Sponsorship and Nomination Processes) Bill 2024 (the Bill that will introduce the changes proposed by the Migration Strategy) to the Legal and Constitutional Affairs Legislation Committee for an inquiry and their recommendation.

After consideration of the proposed amendments and submissions from industry and other stakeholders including unions, professional associations and representative bodies, the Committee has recommended that the Senate pass the Bill.

Quick recap of proposed key changes
The government are proposing to:

• establish the Skills in Demand Visa to replace the Temporary Skills Shortage (TSS)(482) visa with 3 streams and legislate income thresholds for the Skills in Demand visa to be indexed annually as below

 

Stream	Description	Salary (to be indexed annually)
Specialist Skills Pathway	For highly skilled migrants who bring significant economic benefits to Australia, such as meeting labour needs that exist at an individual firm level and assist companies in acquiring specialist knowledge, niche technologies or research expertise unavailable in Australia	$135,000
Core Skills	Temporary skilled workers in occupations identified by the Government as being in national shortage on a Consolidated Skills Occupation List (CSOL); OR Where Australia has committed to providing access to the Australian labour market in relation to that occupation through international trade agreements	$73,150 – $135,000
Essential Skills	Intended to be defined by occupation and pay Will be sector-specific, capped, embedded with stronger regulation and minimum standards and subject to further advice from Jobs and Skills Australia	Below $73,150 or as specified by the Minister of Immigration in writing

 

• increase validity period of Labour Market Testing (LMT) from 4 months to 6 months. Unfortunately it does not look like the LMT requirements will be abolished

 

• change the amount of time that a sponsor is required to provide information about any Australian workers that they retrenched or made redundant from occupations nominated will also increase to 6 months (currently this is 4 months)

 

• establish a public register of approved sponsors

More detail on the changes can be found here.

Submissions made to the Government
Most of the submissions considered by the Committee were broadly supportive of the changes. However a majority of submissions reported challenges during the visa sponsorship and nomination process, including:

• long processing times;
• complex paperwork and requirements; and
• high Government costs.

Many also called for the abolishment of LMT as it causes unnecessary delays in recruitment in genuine areas of a skills shortage that have already been identified and is an inefficient tool to test if a sponsor is genuinely testing the market.

Of note is the Department’s feedback to criticism of the annual income indexation. This will be contained in legislation rather than a legislative instrument which allows for migrants and their employers to be made aware of annual wage increases several months before it comes into force. They will be made public in February of each year (when the figures are published by the Australian Bureau of Statistics), more than three months before the increase occurs on 1 July each year. This provides advance notice for employers to consider their options for employees.

We will provide more updates as more information on the strategy is released by government but to date, we do not have any indication of when this will happen.

If you have any other questions, please contact your Ajuria advisor.

The post Australia’s Legal and Constitutional Affairs Legislation Committee – New Migration Strategy first appeared on Ajuria Lawyers – Leaders in Immigration.

Working Holiday (subclass 417) and Work and Holiday (subclass 462) visa holders can do any kind of work over the course of their 12-month stay in Australia. However there are limitations on the timeframe they may work with any one employer. This is because these visas are subject to a mandatory condition (8547) which limits their employment to 6 months with the one employer:

         The holder must not be employed by any 1 employer for more than 6 months, without the prior permission in writing of the Secretary.

Under the government’s policy and until the release of their new Migration Strategy (date unknown) there are certain exemptions. This extensive policy makes the application of the rules quite complex in some circumstances. We hope this FAQ simplifies it.

Are there exemption to the 6 month rule?
Yes. The visa holder does not need to ask permission to work for you longer than 6 months and so you can continue to employ them if any one of the following applies:

• Your business is in tourism and hospitality,  food processing, health, aged and disability care and childcare, agriculture, plant and animal cultivation or natural disaster recovery anywhere in Australia.
• Your business in not in any of the above sectors but the employee changes their location of work (including working from home or another office or venue).
• Your business is in the fishing and pearling, tree farming and felling, construction or mining sectors in Northern Australia.

Is our business exempt because it is in hospitality, accommodation and tourism?
Any business in this sector is exempt if it is a:

• Hotel, motel, bed and breakfast, or backpacker hostel
• Café, restaurant, takeaway food shop or catering premises
• Pub, tavern club or bar
• Other hospitality or accommodation business
• Tourism business

These employees do not need to change location. You can employ these visa holders in the same role at the same location as long as they have one of these valid visas.

What does it mean to change locations?
Visa holders who are not in an exempt sector but who change the location of their work can continue to work for you for you for more than 6 months in the same or different role without asking for permission. The following are examples of what it means to change locations:

• Working from home
• Working remotely
• Working at different premises of the same business
• Being self-employed and providing services to the same business for more than 6 months as long as that business is not the only business to whom services are provided during that time

Other changes of location may also be acceptable and you should check with us if you are in doubt.

Do I still need to VEVO these visa holders?
Yes. You should VEVO ALL new employees unless they have shown you evidence that they are an Australian Permanent Resident/Citizen. If the visa is a Working Holiday visa or Bridging visa, the best practice would  be to VEVO that employee every three months to check that there has been no change to their work rights.

What do we need to do if the above exemptions do not apply?
You must ensure that the employee has permission to continue to work or you must ask them to stop working until they do. Severe penalties apply for employing a visa holder who does not have the right work permission.

When does the 6 months start and end?
The 6 months starts from the day the employee starts to work. It includes full-time, part-time, casual, shift and voluntary work. It is calculated on a calendar basis.  It is based on the number of months that have passed since started working, not how many hours or days have been worked.

Can the person continue to work for us if they have asked for permission to continue working more than six months?
Yes. The employee can continue to work for you until they have an answer on their request. You should put a process in place to review the status of their request with them at least every two weeks. Best practice would be to have us apply for the extension request so that you will know that it has been lodged and when there is a decision.

Can the employee continue to work for us if we have lodged a TSS visa (or other application) for them?
Maybe. They can if:

1. They fall into one of the exemptions above.
2. The employee has lodged a request for extension of the six months (see above).
3. The employee has been granted a bridging visa and that visa has come into effect because their previous visa has expired.
4. The employee is granted another visa (including a second or third Working Holiday visa) that has work permission (the 6 months re-sets on the furhter Working Holiday visa grant).

If you are still in doubt or have further questions about this, please contact your Ajuria team.

The post Mastering Working Holidays Visa Condition 8547 first appeared on Ajuria Lawyers – Leaders in Immigration.

The post New Financial Year – an Update on Australian Immigration first appeared on Ajuria Lawyers – Leaders in Immigration.

Further to our newsletter earlier this week we have now received the new Regulations. However the policy around this has not yet been released.

Recap – what is changing
From 1 July 2024, TSS subclass 482 and Regional subclass 494 visa holders who cease employment with your business can stay in Australia and work for up to 180 days for any other employer in any occupation while they seek a new sponsor.

It also means you can employ TSS subclass 482 and Regional subclass 494 holders without having to transfer their sponsorship (nomination) before the commence work.

What has not changed?
All sponsorship obligations remain unchanged.

For employees ceasing employment, your business must still notify the cessation of employment of a sponsored worker within 28 days.

Your business is still obliged to pay the reasonable return travel costs of the sponsored workers and their family unless and until:

• They have been nominated by another sponsor or granted a new visa; or
• Have permanently left Australia and their work visa has been cancelled or expired.

Your business is still liable for up to $10,000 (less any travel costs paid) for the costs of locating and removing a sponsored worker or their family if they do not depart at the end of their visa. In practice we have never seen the Department enforce this provision.

Which visa holders does this apply to?  
The changes apply to all TSS and 494 visa holders from 1 July 2024. It does not matter when their visa was granted.

What does it mean for your business?

1. You will need to continue to manage your sponsored employees in the same way but can expect that requests for travel costs might be made well after the sponsored worker has left your business.
2. You will have the opportunity to hire TSS visa holders who have left their sponsored employment for up to 180 days in any position without the need to sponsor them. The 180 days will start on 1 July for ALL 494 and TSS visa holders, including ones who ceased employment before that date. Any time that a visa holder ceased working for their sponsor prior to 1 July 2024 will not count towards the 180 days.
3. Sponsored employees will be able to work in between sponsorships for a total of no more than 365 days in the period of their visa.
4. You will need to put thorough processes and checks in place to manage TSS and 494 visa holders who you have not yet sponsored to ensure they do not work for more than 180 days since their last day of employment with their previous sponsor and to ensure that you do not employ a sponsored visa holder outside of their occupation for more than 365 days.
5. You should plan for some additional costs around managing this as it will be more difficult for us to provide a strategy for such workers, and we will need to charge for this work.

Can we get a refund of the SAF levy if a sponsored employee leaves?
Refunds of the Skilled Australia Fund (Training Levy) will still be extremely limited until the regulations change (the government is proposing to change the refund provisions, but we do not know when).

What happens if your former employee does not find a new sponsor within 180 days?
If they have not applied for another visa or found a new sponsor after 180 days, they will need to depart Australia or face possible cancellation of their visa. The business obligations continue as above.

Will this impact the permanent residence pathways for employees?
This is complex and will need to be worked out case-by-case but it should not change the current rules in most cases.

Under the current rules:
Under the 2-year sponsored pathway, as a general rule, the TSS visa holder needs to work in the position for which they were nominated. This means that their time starts again when they change sponsoring employers because they start in a new position. There is no change to this rule.

Upcoming possible changes:
However, another possible change flagged (we don’t know when) will allow sponsored workers to count periods of work for multiple sponsors (in the same occupation) when calculating the two years of sponsored employment before they can transition to permanent residence. There are no details yet about how this will be applied in cases where the person has not been sponsored in between roles (for up to 180 days) or where they may have worked in another occupation during this time under the new 365 day rule.

Our advice

1. Continue to notify within 28 days of cessations of employment following the same process.
2. Ensure internal systems continue to track visa expiries.
3. Update internal systems to track any new employees holding a 494 and TSS visa that your business has not nominated to ensure that they are not employed for more than 180 days (this would be an offence) and not employed outside of their occupation for more than 365 days. Unfortunately, the Department will not provide us with data of when that employee ceased employment and VEVO at this stage does not have this data. Merely checking VEVO is not sufficient at this stage.
4. If employing a visa holder before lodging a nomination (transfer) application, seek employment law advice regarding the type of contract to be issued (ie fixed or permanent).
5. Continue to do nomination transfers as before to attract talent, for critical employees, and to avoid disruption and complications with permanent eligibility. Nomination requirements still remain the same.

As always we are here to assist and you should contact your Ajuria advisor for more information.

The post Changes to TSS and Regional 494 visa – 1 July 2024 first appeared on Ajuria Lawyers – Leaders in Immigration.

From 1 July 2024, TSS subclass 482 and Regional subclass 494 visa holders who cease employment with their sponsoring employer will be able to work for up to 180 days for any employer in any occupation while they seek a new sponsor. If they have not found a new sponsor after 180 days, they will need to depart Australia or face possible cancellation of their visa. Sponsored employees will be able to work in between sponsorships for a total of no more than 365 days in the period of their visa.

Sponsoring employers will still be required to notify of changes in circumstances (including changes in occupation) and cessations of employment within 28 days.

The changes will apply to existing visa holders, as well as those granted a visa on or after 1 July 2024. Any periods a visa holder stopped working for their sponsor before 1 July 2024 will not count towards the new time periods outlined above and those employees will have 180 days from 1 July to find a new sponsor.

The changes will make it easier for employees to move between sponsors. It will also open opportunities for employers to hire sponsored workers in any occupations for up to six months without the need to sponsor them.

Employers who employ a TSS or regional visa holder will need to carefully track the 180 days and the expiry date of the existing visa carefully to ensure that the employee is not employed beyond 180 days unless:

• A new nomination has been approved.
• A new nomination and a new visa has been lodged and a bridging visa granted if the current visa is due to expire within the 180 days (or before the new application is approved).

These changes are part of a package of expected reforms to reduce the reliance of sponsored employees on a particular sponsor and so lessen the chance of worker exploitation. Other changes expected to be announced shortly include allowing sponsored workers to count periods of work for multiple sponsors when calculating the two years of sponsored employment before they can transition to permanent residence and allow sponsors to spread the payment of the SAF levy over the life of the employment

As these changes take effect, employers may need to consider their current policies in relation to the payment and recovery of visa costs and the period of agreed sponsorship for new employees as these changes could mean that sponsored employees become more mobile and less likely to work for the same employer for the full period of their sponsorship.

As always we are here to assist and you should contact your Ajuria advisor for more information.

The post Changes to work visa conditions for TSS and Regional 494 employees first appeared on Ajuria Lawyers – Leaders in Immigration.