The subclass 400 visa is for skilled workers (such as professionals, managers, technicians and tradespeople) needing to come to Australia for no more than 6 months to carry highly specialised work of a non-ongoing nature.

This can be a valuable tool for businesses and projects who require skilled workers which cannot readily be found in the Australian labour market. But it is critical that the 400 visa be used only as intended and not as a shortcut to speed up the process (or even avoid it) of sponsoring workers under the TSS visa program as this will bring unnecessary and unwanted attention on the business and may even jeopardise the company’s ability to sponsor the workers it needs.

A bit more about the 400 visa

• 400 visas can be processed in as little as a week but on average take between 2 and 3 weeks to process
• The application for a 400 visa is made by an individual and it does not require the applicant to be sponsored or nominated by a company – although it usually requires some letter of support
• The visa is for a maximum stay of 6 months in a year, however, under policy it is expected the normal period of stay would be 3 months or less. The visa can be granted with either a single entry facility or multiple entry
• The visa applicant must be outside of Australia when applying for the visa and when the visa application is decided. The applicant cannot apply for another 400 visa whilst in Australia
• There must be a demonstrated need for the applicant to be in Australia to participate in the event, or engage in the activity or work
• That work must be highly specialised and not ongoing. It is not appropriate to rotate workers through a position using 400 visas
• The proposed work to be undertaken by the visa applicant must not have adverse consequences for the employment, or training opportunities, of Australian citizens or permanent residents

The numbers we are talking about
This visa class has been hugely popular since it was introduced in March 2013.  Statistics from 2022 indicate that in a period of 8 months the government granted over 21,000 subclass 400 visas with the most popular sector being in engineering and trades for the infrastructure/construction industry. More recently, we have heard of the visa being used to sponsor cooks and chefs, particularly in regional Australia and that some employers see it as a way to quickly bring in skilled workers with the intention to sponsor them under TSS visas and that this is being monitored by the Department of Home Affairs and possibly the Australian Border Force.

Not ongoing work
The most critical point to remember is that the 400 visa is meant only for work that is ‘not ongoing’. This is defined in the law as work that is likely to be completed within a continuous period of 6 months or less and where the person:

• has not been given an expectation of staying in Australia, for a purpose relating to the work, after the end of that period; and
• has not made arrangements to stay in Australia, for a purpose relating to the work, after the end of that period.

In other words, the government recognises that the work might end up longer than six months (particularly in a project context) – in fact, there is no prohibition on the company then sponsoring the worker under the TSS program if they need to stay in Australia longer – but there can be no plan with the applicant to do this before the applicant comes to Australia.

Adverse consequences for employment and training opportunities of Australians
There is also a requirement that the applicant must not intend to engage in activities that will have adverse consequences for employment or training opportunities, or conditions of employment, for Australian citizens or Australian permanent residents. The Department can look at the salary to be paid to the person while they are in Australia (although in practice they rarely do so), and may even require evidence of labour market testing in some cases if they have a concern that the 400 is being used as cheap labour in roles that should be able to be filled by Australians.

Applications that are subjected to more scrutiny
The Department’s policy identifies the following circumstances as generally requiring closer scrutiny and investigation:

• where work of more than 3 months is being applied for
• when then overseas employer may be seeking to fulfil multiple separate contracts in Australia
• where there are large group applications for a single project
• when workers are being rotated through a position
• when the decision maker is otherwise concerned that the applicant or applicant’s employer is trying to bypass the Australian labour market and/or scrutiny of the TSS 482 visa programme

400 visa users be warned!
Individuals who are found to be applying for a 400 visa in circumstances other than intended may face investigation and even possible visa refusal or cancellation.

Employers who are found to be using the 400 visa to circumvent the TSS process or to use overseas labour where it harms the Australian labour market, could face refusal or cancellation of their sponsorship status. If individuals or employers are found to have pre-planned for the employee to remain in Australia, this could constitute fraud or misleading information and can result even more serious consequences including criminal investigation.

Please always check with your Ajuria team before supporting or employing a 400 visa applicant/holder and never offer any promises to that person in relation to any work or sponsorship beyond the period applied for in the 400 visa.

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

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The post Webinar – Changes to Employer Nominated Permanent Residence first appeared on Ajuria Lawyers – Leaders in Immigration.

Ajuria Lawyers Webinar
Australia’s NEW Permanent Residence Pathways
Monday, 6 November 2023
3pm AEDT

REGISTER HERE NOW

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There is a lot of discussion on the greatly anticipated changes to the Australian employer sponsored program coming into effect on Saturday, 25 November 2023.

The Minister for Immigration mentioned the date in a speech, but no formal announcement has been made and no draft legislation/policy has been released. We are expecting all occupations on the 482 list (even those on the Short-Term list) will have a permanent residence pathway after 2 years in Australia on a TSS visa.

In anticipation of the changes coming into effect, Ajuria Lawyers will hold a webinar on 27 November 2023 noting that if details are released earlier the session date will be changed.

The post Update And Webinar Date – Upcoming Changes To Permanent Residence Pathways For TSS Visa Holders first appeared on Ajuria Lawyers – Leaders in Immigration.

In October 2022, the Department of Home Affairs introduced temporary measures aimed at exempting specific temporary visa applicants in Australia from undertaking mandatory health examinations. This initiative, which was rolled out in the aftermath of the COVID-19 pandemic, was implemented to address the backlog of visa applications.

This exemption for health examinations is due to end on 31 October 2023.

For visa applicants submitting their applications on or after 1 November 2023, the requirement for health examinations will depend on various factors, including:

• The visa subclass;
• Indented duration of stay in Australia;
• Planned activities in Australia;
• Applicant’s country of passport and/or previous residences;
• Any significant medical conditions.

Your Ajuria contact will advise applicants directly if their circumstances warrant health examinations.

Applications submitted but not yet decided before 1 November 2023, will continue to be eligible for the health examination exemption (if it aligns with their specific circumstances).

If you have any specific questions about your case, please contact your Ajuria advisor.

The post Australian Immigration Health Requirements Update first appeared on Ajuria Lawyers – Leaders in Immigration.

Yesterday, the Australian government announced its response to the Rapid Review into the Exploitation of Australia’s Visa System undertaken by Christine Nixon, AO, APM earlier this year. That review identified significant gaps and weaknesses in Australia’s visa system and made 34 recommendations.

A large number of the recommendations of the Review related to the strengthening the regulation of migration agents to stop unscrupulous conduct. In Australia, migration agents who are not lawyers can be registered to provide immigration advice and visa services, and the government accepted many of the recommendations to increase regulation of this industry. Lawyers, like those employed by Ajuria Lawyers, are separately regulated by the various legal practitioner boards of each State or Territory and were not the subject of the Review or any of these recommendations.

Other recommendations that have been accepted by the government include: increasing data matching between government agencies including the ATO, increased use of biometrics as a means of identification of visa applicants, reviewing work rights and visas of those in Australia to study or train and barring employers from hiring visa holders where they have been found to have been breaching immigration laws or exploiting overseas workers.

As a law firm, Ajuria Lawyers welcomes any change that creates or increases confidence in our legal system and supports the vast majority of employers and individuals that do the right thing.  We do not have all of the information available to government or the author of the Review, but we have no doubt that the system has been rorted and abused by some. We have turned away clients, companies and individuals that wanted to do that very thing. That needs to be cleaned up and stopped.  However, the vast majority of companies and individuals want to do the right thing and they need meaningful changes to the visa system that will support their business needs.  Hopefully, those announcements are imminent. “Crackdowns” need to  take into account those who are compliant with the law, not increase the complications in the system for them.
So, what should employers do about all this?

Use a trusted professional legal adviser
Australia’s immigration rules are some of the most complex and litigated areas of law.

Founded in the Constitution, and overseen by the Federal and High Courts of Australia, the Migration Act and Regulations and the thousands of pages of policy that support it, attempt to codify some of the most difficult problems of our society: who comes and who does not, population control, economic growth and the need for infrastructure, populating regional Australia and movement of migrants between and amongst the States and Territories.

The preparation and lodgement of a visa application is not an administrative task but a legal one. It involves: ethical decisions requiring a deep understanding of the importance of the rule of law, the duty to act in the best interest of the client while not breaching the law, analysis of the Act, Regulations and policy, the ability to frame legal arguments and ensuring complete compliance with all regulatory requirements.

Those skills are the bread and butter of the lawyers trained as legal professionals. Using a lawyer for your immigration matters will ensure that your interests and reputation remain protected.

Accept legal advice even when it does not meet the business requirements
Saying no is our hardest job. When we assess whether a person is eligible for a visa, or whether a company should act in a particular way, we apply all of our legal training and look out to protect the best interests of the company and its officers to ensure that all applications and actions fully comply with the law. Getting that wrong is a very serious thing, and can result in potentially damaging outcomes – sponsorship bars, visa cancellation, fines and, in the worst cases, even imprisonment. If we say no to a client we are not doing so for our interest, but theirs. If we say no to you, this is to ensure that you do not become one of the companies or individuals now being investigated.

Develop and implement strong compliant policies within the business
Whether it is training to remind your managers about the importance of immigration compliance, ensuring proper work rights checking processes, or just saying no to an employee who wants a reference that is not completely truthful or is misleading – having strong sponsorship policies in the business to avoid immigration breaches is critical to maintaining your company’s standing with the Department.  It will ensure bad practices do not end up as negligent or criminal conduct.

Ajuria Lawyers will keep a close eye on the outcomes of the Review and will advise our clients of anything that might impact you. Until then do not hesitate to reach out to any of our lawyers if you have questions or concerns or would like to review any of your company’s practices or policies.

Disclaimer: This information is current as of 5 October 2023 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.

The post Impact of Rapid Review into the Exploitation of Australia’s Visa System first appeared on Ajuria Lawyers – Leaders in Immigration.

The Importance of Work Rights Checks & Potential Criminal Liability

More than ever businesses need to ensure they are immigration compliant and not facilitating wrongdoing when it comes to the employment of foreign workers.

The government recently introduced proposed legislation with the the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)  which creates additional offences to cover conduct by a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa. It will also exclude employers from employing temporary visa holders if the employer has been found to have previously underpaid visa holders. The Bill will also make it easier for visa holders to report instances of worker related exploitation.

This Bill along with recent announcements by the Australian Border Force, that it will increasing its activities and site visits, make it very important that clients review their immigration compliance readiness.

Checking Work Rights of Employees
Employers need to ensure that they are taking reasonable steps at reasonable times to verify the work rights of all employees. This includes verifying that all employees have permission to work and, if they are a visa holder, are only working within any work conditions/limitations imposed on that visa.

Reasonable steps at reasonable times include:

1. Sighting an Australian passport of any new hire and noting that this has been done. There is no requirement to keep a copy of the passport.
2. Conducting a VEVO check of any new hire who does not have an Australian passport and, if the person is on a temporary visa, conducting further VEVO checks at regular intervals during the person’s employment. The Department of Home Affairs recommends that this be done every three months, but this will depend on the visa that the person holds. For example, a student visa will require a check every three months as this visa could be cancelled without the employer knowing, but a TSS will not as the employer will be aware of the work rights of the employee.
3. Having a contract with a third party to conduct these checks.

Failure to conduct these checks could result in an employee working without work permission or in breach of their visa. These are criminal offences and can result in serious consequences including:

1. Fines of up to $93,900 per offence against the company ($469,500 if the employee has been exploited)
2. Imprisonment of up to 2 years per offence against any office holder of the company or other individual knowingly or recklessly involved in allowing the employee to work (up to 5 years if the worker has been exploited).
3. Cancellation of the company’s ability to sponsor workers and publishing in public database (Home Affairs) of sanctioned employers.
4. Cancellation of the employee’s visa.

Work Rights of other people
Companies and individuals also need to be aware of risks of penalties arising from other arrangements that may result in allowing a person to work without a visa or in breach of a visa condition. Failure to check work rights in these circumstances may result in the company, its office holders and any employees involved being liable for criminal prosecution. Such arrangements could include:

Contractors
Companies should also undertake the above work rights checks in relation to contractors who are engaged directly to provide services other than through an employment contract.

Workers supplied under labour-hire arrangements
Companies using workers supplied under a labour-hire arrangement should, at a minimum, seek assurances in the contract for labour that the supplier of the labour has ensured and warrants that each worker has the appropriate permission to work and that the work rights of any visa holder is being regularly checked. If any workers supplied hold TSS visas then the supplier should be asked to provide evidence of an approved Labour Agreement with the Department of Home Affairs allowing those workers to be ‘on-hired’.

Employees of other service providers
There is no requirement to check the work rights of employees of third-party suppliers. However, if the company becomes aware that the employees of the supplier are working without or in breach of their visas or do not have visas, then the company receiving the service could be found to be involved in an arrangement to allow that to occur, unless steps are taken to ensure that such breaches are not occurring.

The seriousness of any offence would be exacerbated if it was found that the workers are being exploited, for example through debt bondage by creating liabilities for having been sponsored.  In such cases, much higher penalties apply. The risk of this is increased when dealing with unknown labour suppliers or contractors and so companies should be additionally vigilant with this.

Extended liability of executive officers and employees
Executive officers (Directors, CEOs, CFOs, etc.) of companies can be found personally guilty of these offences if the company is found to have allowed a person to work without a visa or in contravention of a visa condition and:

the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur;

the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and

the officer failed to take all reasonable steps to prevent the work-related contravention.

It is therefore critical that company officers be involved in the planning and decision making around the processes and steps that a company will take in relation to work rights checks.

In certain circumstances other individuals such as managers or mobility professionals could also be guilty of offence if they were knowingly involved in them.

Next steps
All companies should check their work rights verification processes to ensure that they comply with all requirements and would provide defences against any allegation of wrongdoing.

Should you need assistance in reviewing what your company is currently doing in relation to work rights verification, you should contact your Ajuria account manager or usual contact.

Further compliance updates will follow.

DISCLAIMER This information is current as of 5 September 2023 and is subject to change with little notice. This publication is of a general nature only and 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 post Australian Immigration Compliance Update first appeared on Ajuria Lawyers – Leaders in Immigration.

DISCLAIMER This information is current as of 31 August 2023 and is subject to change with little notice. This publication is of a general nature only and 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 post The End Is Coming For The 408 Pandemic Visa first appeared on Ajuria Lawyers – Leaders in Immigration.

The 2023-2024 financial year is well and truly underway, and the demand for skilled immigration is as high and many reports refer to an Australian labour recession.

This week, our Federal Treasurer confirmed the Minister for Home Affairs, the Hon Clare O’Neil ‘will release the Migration Review before long as well, and we’ll do that in conjunction with the Employment White Paper – is to try and make sure that we are creating a workforce which is big enough to support an ageing population, and well trained enough to adapt and adopt technology. That’s a big part of the task before us. Migration has a role to play’

As we wait for this announcement, we have prepared the below summary to help keep you across all the recent, upcoming and proposed immigration changes and updates:

1. Reminder of increase to TSMIT, FWHIT and visa application charges
2. Permanent residence pathways
3. Applying for a third short-term TSS visa onshore
4. Australia & UK Free Trade Agreement
5. 400 visa scrutiny
6. Work limitations – Students and Working Holiday Makers 
7. ‘Covid’ visa
8. Extension of 485 Graduate visa validity period
9. Australian citizenship for New Zealanders 
10. English tests for Australian visa purposes
11. Department website updated with employer resources
12. New case officers – processing issues

1. Reminder of increase to TSMIT, FWHIT and visa application charges
From 1 July 2023:

• The Temporary Skilled Migration Income Threshold (TSMIT) was increased to $70,000.  The guaranteed annual earnings (excluding super) for all positions nominated under the TSS program must meet the TSMIT and almost all must also meet the market rate (unless over $250,000).
• The Fair Work High Income Threshold (FWHIT) was increased to $167,500.
• Visa application charges (VAC) have increased by approximately 6% to 40% depending on the visa subclass. For employer sponsored visas, the increase is about 9.5% (e.g. the VAC for a 4 year subclass 482 TSS visa increased from $2,770 to $3,035). Nomination fees and the training levy amounts have not changed.

2. Permanent residence pathways
On 27 April 2023, the government made a significant announcement regarding access to employer-sponsored permanent residence for subclass 482 Temporary Skill Shortage (TSS) visa holders.

No further updates have been made, including the date these changes will be introduced, or if there will be any other concessions made (e.g. changes to the age requirement).

A recap of what we know so far:

• The Temporary Residence Transition (TRT) stream of the subclass 186 Employer Nomination Scheme (ENS) visa will be available to TSS visa holders in all occupations, including those on the short-term “2 year” list, whose employers wish to sponsor them.
• Eligibility for the TRT stream of the ENS visa will be reduced from 3 years to 2 years of employment with the sponsoring employer as a TSS visa holder.
• Applicants will still need to meet all other nomination and visa requirements for the TRT stream such as age, English, health and character requirements.

Employers will need to take into account a number of considerations when deciding whether to support permanent residence applications – a summary from our 22 May 2023, newsletter is available for review here.

3. Applying for a third short-term TSS visa onshore
The concession allowing applicants to apply for a third short-term TSS visa onshore, if they spent at least 12 months in Australia between Feb 2020 – Dec 2021, ended on 30 June 2023.

To facilitate the new PR pathway mentioned above, the Government stated that it would be removing limits on the number of short-term stream TSS visa applications that visa holders can make in Australia. However, as this change hasn’t been formally implemented yet, the validity of lodging a third short-term TSS visa onshore is still unclear.

4. Australia & UK Free Trade Agreement
As of 1 July 2023, the age limit for UK passport holders to apply for a Working Holiday visa was increased to 35 (i.e. applicants can apply up until their 36th birthday).

Despite some initial confusion, it has also been confirmed TSS nominations for UK citizens are exempt from the Labour Market Testing (job advertising) requirement.

Finally, applications for the opening round of the Innovation and Early Careers Skills Exchange Pilot (IECSEP) can be submitted online from Monday 25 September 2023. A summary of the IECSEP can be found in our update from 19 June 2023, available for review here.

5. 400 visa scrutiny
Over the last few months we have noticed increased scrutiny on 400 visa processing as well as processing delays.  This scrutiny is likely due to the Department’s concerns that the 400 visa is being used in cases where the TSS visa is more appropriate.  Our team is taking extra care with these applications and adjusting (on a case-by-case basis) what we request from employers and applicants to submit the applications.

6. Work limitations – Students and Working Holiday Makers
The temporary relaxation of the work limitations for Student and Working Holiday visa holders ended on 30 June 2023.

Since 1 July 2023:

• Student visa holders are again subject to a work limitation, which is capped at 48 hours per fortnight while their course is in session (excluding students working in the aged care sector – their work rights remain uncapped until 31 December 2023).  Students who are studying a Masters of Research or PhD will continue to be able to work full time.
• Working Holiday visa holders are again restricted to only working for one employer for 6 months (with limited exceptions)
• Any work that is carried out before 1 July 2023, will not be counted towards the 6 month limitation period. This means that from 1 July 2023, onwards, Working Holiday visa holders may work for any employer for up to an additional 6 months even if they worked for that same employer before 1 July 2023.

7. ‘COVID’ visa
The ‘Australian Government endorsed events (COVID-19 Pandemic event)’ stream of the subclass 408 visa remains available to eligible applicants working in all sectors. Whilst this visa has been a practical solution for employers and individuals, the Government has advised that this visa stream will be abolished and that this change is ‘imminent’, however no update has been provided on when this might happen. Those considering applying for this visa should be aware that it could be closed at any time.

Also worth noting is that any time worked under the COVID visa will not count towards the 3 year (proposed 2 year) employment requirement with the sponsor for permanent residence applications under the Employer Nomination Scheme (TRT stream). Time worked on the COVID visa maybe ‘wasted’ time.

8. Extension of 485 Graduate visa validity period
As of 1 July 2023, some subclass 485 Temporary Graduate visa holders/applicants in the Post-Study Work stream can/will have their visa duration increased by two years. This extends post study work rights from:

• Two years to four years for select Bachelor degrees
• Three years to five years for select Masters degrees
• Four years to six years for all Doctoral degrees.

The full list of courses that allow extended post-study working rights can be found here and targets the skills Australia needs most, including health, teaching, engineering and agricultural fields.

9. Australian citizenship for New Zealanders
As of 1 July 2023, New Zealand citizens holding a Special Category (subclass 444) visa (SCV) who arrived in Australia after 26 February 2001, will be eligible to apply directly for Australian citizenship if/when they have been living in Australia for four years or more. They will no longer need to first obtain a permanent residence visa.

The Department released further information about the impact to family members of New Zealand citizens on 1 July 2023, here, including confirmation that any child born in Australia on or after 1 July 2022, to an SCV holder may automatically acquire Australian citizenship at birth. This update also includes information about withdrawal options for New Zealand citizen SCV holders with a pending Partner, Parent, Child or Other Family type visa application.

10. English tests for Australian visa purposes
From 26 July 2023, TOEFL iBT will no longer be offering English language tests for Australian visa purposes until further notice. This is because of revisions being made to the test that are currently being reviewed by the Government.

TOEFL tests taken for Australian visa purposes before 25 July 2023, will remain valid (provided the test was taken within the required timeframe for the relevant visa – in most cases, 3 years before the visa application date).
Employers and visa applicants should also be reminded that:

• The Department does not accept test results from TOEFL iBT – Special Home Edition, OET@Home, IELTS Indicator, and IELTS Online or any other ‘at-home’ or ‘online’ tests.
• The Department will accept IELTS test results that include One Skill Retake (OSR) (which allows test takers to retake one of the four test components in either reading, writing, speaking or listening) for all visa applications except for 476 (Engineering Graduate), 482 (TSS) and 485 (Graduate) visa applications. Applicants who need to meet the English requirement for a 476, 482 or 485 visa and wish to rely on the IELTS test need to meet the minimum scores in a single sitting/attempt.

11. Department website updated with employer resources
The Department has updated their website information for employers wanting to employ a visa holder already in Australia, or looking to sponsor an overseas worker. This includes advise on how to check work rights and step-by-step guide to ongoing responsibilities. The updated information can be found here.

12. New case officers – processing issues
The Department of Home Affairs has appointed a lot of new case officers who are inexperienced and currently undergoing training. We have noticed increased inconsistencies and unusual requests including requesting information already provided at time of lodgement or not usually required under their policy (but that they have the discretion to request).  Ajuria Lawyers will continue to work with employers on providing as much evidence as possible to avoid delays in processing and provide feedback to and/or request clarity from the Department.

DISCLAIMER This information is current as of 29 August 2023 and is subject to change with little notice. This publication is of a general nature only and 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 post Australian Immigration Recap first appeared on Ajuria Lawyers – Leaders in Immigration.