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.

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From 1 July 2024, the Temporary Skilled Migration Income Threshold (TSMIT) will increase from $70,000 to $73,150. New nomination applications from this date will need to meet the new TSMIT of $73,150 or the annual market salary rate, whichever is higher.

This change will not affect existing visa holders and nominations lodged before 1 July 2024. However existing TSS visa holders will need to be reviewed and earnings increased to meet the market rate.

Labour Market Testing
Labour Market Testing for nominations to be submitted after 1 July will need to be for at least this new TSMIT amount.

Increase of visa application lodgement fees
A reminder that Immigration fees are likely to increase on 1 July 2024 as they generally do each year. Fees generally increase by CPI but we will not know the exact amount until closer to 1 July.
Upcoming lodgements for permanent residence and temporary visas should be made pre-1 July to reduce cost increases.

Increase of FWHIT
The Fair Work High Income Threshold (FWHIT) is currently $167,500 but this figure will also be adjusted on 1 July.

Jobs & Skills Australia Consultation on the Core Skills Occupations List
A reminder the Jobs and Skills Australia Core Skills Occupations List (CSOL) Consultation is still open. Submissions can be lodged until 5:00pm AEST on Friday, 31 May 2024.

For further information please contact your Ajuria advisor.

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As we get close to the first anniversary of the Australia-United Kingdom Free Trade Agreement (A-UKFTA) the Australian government is piloting a new Australian visa program for UK nationals. The Innovation and Early Careers Skills Exchange Pilot (IECSEP) provides new opportunities for UK citizens to come to Australia for 1 to 3 years. This pilot is currently open and will run until 30 June 2025 with 2000 spots being available from 1 July.

There are two streams under IECSEP:

• the Early Careers Skills stream, which will allow participants to undertake a short-term placement, secondment, or intra-corporate transfer for up to one year in Australia.
• the Innovation stream, which will allow highly skilled and experienced participants, with a demonstrated contribution to innovation, to undertake opportunities for up to three years in Australia.

All IECSEP applicants must be able to demonstrate UK citizenship, and that they have adequate financial means to support themselves for the duration of their stay in Australia ($5000 plus the fare to where the applicant is going to after Australia).

Early Careers Skills Stream
To be eligible for the Early Careers stream applicants must:

• be aged between 21 and 45 (inclusive) at the time of application
• hold tertiary qualifications
• have worked for at least 3 months in their current role, and the prospective employment in Australia must be relevant to the applicant’s field of work in their current role
• have prospective employment in Australia in an occupation defined at the ANZSCO Skill Levels 1, 2 or 3

The government has already announced that from 23 November 2024, it will reduce the work experience requirement for the Temporary Skill Shortage (subclass 482) visa from two years to one year for all applicants. This stream of the program will be attractive for those under 45 looking to get 1 year of experience in Australia before potentially moving to a TSS visa.

Innovation Stream
To be eligible for the Innovation stream applicants must:

• have a demonstrated contribution to innovation
• be highly skilled
• be highly experienced
• have prospective employment in Australia in an occupation defined at the ANZSCO Skill Level 1

For IECSEP, innovation is broadly defined as the development or implementation of a new or improved product, process, or organisational method, or combination thereof. IECSEP recognises that innovation drives efficiency and productivity growth in all industries, and that innovators are working across a broad and diverse range of occupations. Innovation Stream applications are welcome from applicants working across all sectors, including service-based industries, and academia.

Process
The process is 2 steps:

1. An endorsement letter is obtained from, the Department of Foreign Affairs & Trade – this will take 7 days under the Early Careers Stream.
2. An application is then lodged with theDepartment of Home Affairs for a Temporary Work (International Relations) subclass 403 visa Government Agreement stream.

Business requirements
There is no sponsorship on the part of the business and no evidence of Labour Market Testing is required. Unlike the TSS work visa, there is also no minimum TSMIT requirement although the National Employment Standards must be complied with.  With no Training Levy payable, the visa lodgement fee is also a lot lower at $355.

For further information on this visa, please contact your Ajuria Lawyers advisor.

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A few months after the government announced its intention to reduce migration numbers, we have observed noticeable delays across various visa categories due to shifts in government policies. Here’s a summary of the current landscape:

TSS Work Visas: Officially the Government has updated its processing times to:

• 50% are processed in 23 days
• 90% are processed in 3 months

In practice, we are seeing variations from a few days to a month and even longer (even for accredited sponsors). The Department is very clear that no escalation requests even in urgent matters are to be considered if within the above published processing times.  Any escalation requests are seen as clogging the system.

Permanent Residence: Very limited permanent residence visa grants. Whilst business nominations are being approved, visa grants are being delayed until post 1 July because of the Department’s annual quotas which will reset in the new financial year.

400 Visas: These are processed by the offshore Embassy/High Commission and processing is inconsistent depending on the location of the processing office. We are not seeing a change in processing times which continue to vary from a few days to weeks.

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.
It is more important than ever to lodge applications as soon as possible to manage business expectations noting the 1 July likely increase of fees and changes to the TSMIT as per our previous update.

As we lead up to the Australian Federal Budget next week we will keep our clients updated with further developments.

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As the new financial year fast approaches businesses must factor in changes that affect TSS application lodgements:

Increase of TSMIT
As flagged by the Migration Strategy, the Temporary Skilled Migration Income Threshold (TSMIT), currently set at $70,000 per annum, will increase every 1 July going forward indexed to the Wage Price Index. This is estimated to fall between 4.2% and 4.5%. Calculations would land the new TSMIT post 1 July 2024 at between $73,010 and $73,150.

• This will mean the guaranteed earnings (not including superannuation) for 38 hours for any new TSS nomination lodged under the standard TSS program after 1 July 2024, will need to be more than this amount and at least market rate.
• Existing TSS visa holders will need to be reviewed and earnings increased to meet the market rate.
• Labour Market Testing for nominations to be submitted after 1 July will need to be for at least this amount.

Increase of visa application lodgement fees
Immigration fees will increase on 1 July 2024 as they generally do each year. Fees generally increase by CPI but we will not know the exact amount until closer to 1 July.

Upcoming lodgments for permanent residence and temporary visas should be made pre-1 July to reduce cost increases.

Increase of FWHIT
The Fair Work High Income Threshold (FWHIT) is currently $167,500 but this figure will also adjusted on 1 July.

Jobs & Skills Australia Consultation on the Core Skills Occupations List
A reminder the Jobs and Skills Australia Core Skills Occupations List (CSOL) Consultation is now open. The survey is open until Friday, 10 May 2024, and submissions can be lodged until 5:00pm AEST on Friday, 31 May 2024. Business may opt to do either or both.

Update on current processing times
We are now seeing:

• Limited permanent residence visa grants. Whilst business nominations are being approved, visa grants are being delayed until post 1 July because of the Department’s annual quotas
• Delay on TSS visa processing with greater inconsistency – varying from a few days to months (even for accredited sponsors)
• Ongoing delays in obtaining bookings for medical examinations in Australia leading to delays with grants.

Upcoming Federal Budget
The Treasurer will deliver the 2024–25 Federal Budget on Tuesday, 14 May 2024. The Federal Budget normally has significant announcements affecting the immigration portfolio we will send an update shortly after the announcements are made.

Our office held a webinar yesterday and a recording can be found here.

For more information or to discuss these upcoming changes please contact your Ajuria Lawyers advisor.

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Most temporary visas in Australia are granted subject to employment limitations. When it comes to the Subclass 482 – Temporary Skill Shortage (TSS), condition 8607 is mandatory:

The holder must work only in the occupation (the nominated occupation) nominated by the nomination identified in the application for the most recent Subclass 482 (Temporary Skill Shortage) visa granted to the holder.

This condition is only attached to the primary visa holder and family members are granted visas with full work rights. Given the many inquiries we receive, we address some frequently asked questions to provide helpful insights:

Secondary employment whilst on a TSS
A TSS visa holder must have a genuine intention to perform the nominated occupation in Australia and this includes not undertaking additional work or activity that is inconsistent with the nominated occupation. As a result, unless exempted, a primary TSS visa holder may not undertake secondary employment unless this work is:

1. undertaken for the sponsor;
2. in the nominated occupation;
3. consistent with the position they were approved to fill; and
4. incidental to their principal employment.

Some examples where a person will be in breach of their TSS visa:

1. A software developer working with another company who is not their sponsor in the evenings and weekends developing an app
2. A chef driving with Uber
3. A person sponsored as a Restaurant Manager doing secondary employment with a modeling agency

Unpaid work
Under policy, voluntary unpaid work is not considered to be a breach of the visa provided it does not affect the ability of the TSS visa holder to work in the nominated position on a full-time basis. In view of the sponsorship obligations that apply to the sponsor, however, the visa holder is expected to get the agreement of their sponsor.

Changing occupations within the same organisation & remaining with the same sponsor
If a primary TSS visa holder wishes to engage in work in a different occupation, their sponsor must first lodge a new nomination and have this approved, and the visa holder must lodge a new visa application identifying this nomination and have it granted.

As a reminder sponsors are to contact us when the duties of a  sponsored worker change through our MobilityDesk or by email. If the occupation remains the same, we will simply do a notification to Home Affairs. However if the occupation changes, the process above will need to be followed and we will advise accordingly.

A change of occupation may also effect permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Working for an associated entity of an Australian business sponsor allowed
A primary TSS visa holder sponsored by an Australian business sponsor is able to work for an associated entity of their sponsor without breaching  the employment condition.

A primary TSS visa holders cannot work for an unassociated entity as this is considered by the Department to be ‘on-hire’. If a TSS visa holder needs to work for an unassociated entity then the sponsor will need to negotiate an On-hire Labour Agreement to permit this.

Must not cease employment for more than 60 consecutive days
The period during which a TSS visa holder ceases employment must not exceed 60 consecutive days. The purpose of this is to give a TSS visa holder, who ceases employment with their current sponsor time in which to find a new approved sponsor, without concern that their visa may be cancelled. Under the Migration Strategy, this is proposed to increase to 180 days.

Part time work
The TSS visa program is designed to fill genuine skill shortages in the Australian labour market where appropriately skilled Australians cannot be sourced.

As a result, it is a TSS nomination requirement that the visa holder is employed in a full-time position and under policy, such full-time employment arrangements would generally be expected to continue for the entire period of the TSS visa.

If a TSS visa holder commences part-time work arrangements, under policy, they may not be considered to be in breach of their visa on this basis alone. However sponsors must ensure that they are able to continue to meet their sponsorship obligations where part-time arrangements are put in place for an individual primary visa holder.

This period of part time employment may also affect eligibility for permanent residency under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Sponsorship obligations also require that TSS visa holders continue to receive their approved annual earnings and employment conditions no less favourable than what is or would be provided to an equivalent Australian worker in the same occupation at the same location. Under policy, this is considered satisfied where periods of part-time work occur in connection with graduated return from maternity leave, sick leave or a work-based injury, or significant personal reasons, and the following criteria are met:

1. the visa holder’s pro-rata hourly rate, commensurate with the approved salary does not decrease.
2. the visa holder’s role and duties remain consistent with the approved position.
3. the visa holder is not sponsored under a Work (Labour) Agreement which was approved with a full-time work condition only.
4. if the visa holder’s is sponsored under a labour agreement, the agreement is limited to full time work.
5. the arrangement is mutually agreed between the sponsor and primary sponsored person.

Should you have a sponsored worker moving to part time work, please contact our office for further advice.

Leave Without Pay
TSS visa holders on unpaid leave (LWOP) (e.g. recreational or holiday leave without pay; sick leave without pay; maternity and/or paternity leave and/or parental/carer/personal leave), are not considered to be in breach of their visa condition solely on the basis of this unpaid leave. This is because these visa holders may be considered to continue to be in the employ of the sponsor (although not working or receiving a salary).

Under policy, this period should not, however, generally exceed 3 months unless:

1. the sponsor is obliged to provide the leave under Australian workplace laws (e.g. paternity or maternity leave); or
2. exceptional circumstances apply.

This is because extended LWOP would not be consistent with:

1. full-time position requirements at nomination stage and ongoing market salary rate requirements;
2. requirements that TSS primary visa holders cannot cease work for their approved employer for more than 60 consecutive days; and
3. how LWOP provisions operate in the context of sponsorship obligations, see: Sponsorship compliance framework: Sponsorship obligations.

For any LWOP it is expected that:

1. the arrangement is mutually agreed upon by the sponsor and sponsored person; and
2. there is a formal application for leave without pay that has been formally approved by the employer (including leave applications that are processed and approved electronically).

It is also important to note LWOP will affect eligibility for permanent residence under the Employer Nomination Scheme Subclass 186 visa when seeking to apply under the 2 year transitional pathway.

Unauthorised absences from work
A TSS visa holder who is absent without leave (AWOL) from, or who abandons, their employment, may be regarded as having ceased employment if the employer has attempted to give notice that employment will cease, or has ceased, on a particular date, and that date has passed.

Periods spent outside of Australia
As TSS visas enable multiple entries to Australia, visa holders who spend periods outside Australia are not considered to have ceased employment solely because they are or have been absent from Australia. If a visa holder spends significant periods outside Australia, it may be an issue as there may be no continued need for the TSS visa.

Provided the visa holder has not ceased employment and there are reasonable grounds for the visa holder to be regularly absent from Australia, the visa holder will not be considered to be in breach. Under policy, legitimate circumstances in which a TSS visa holder is regularly absent from Australia include:

1. fly in/fly out arrangements are common in some industries and can be a legitimate reason why a visa holder is regularly absent from Australia; or
2. the TSS visa holder may be responsible for managing work on a project outside Australia and, although the position is based in Australia with an Australian company, performing the duties of the position may involve being regularly absent from Australia.

‘Exempt occupations’
There are a very limited number of occupations where the visa holder’s position is not required to be in the business of the sponsor or an associated entity of the sponsor. This enables the TSS visa holder to be engaged as an independent contractor by the sponsor or an associated entity of the sponsor and may work for multiple employers, either simultaneously or consecutively.

These can include Chief Executive or Managing Director, Corporate General Manager and medical practitioners. This is primarily to accommodate the flexible employment arrangements typically associated with medical practitioners, and general managers of companies who might sit on more than one corporate board.

As you navigate the complexities of TSS Visa and the employment restriction, remember that we are here to support you every step of the way. If ever in doubt or if you need further clarification, don’t hesitate to reach out. Our team is ready to assist you and ensure a smooth journey for both you and your employees.

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