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.

The post Visa Processing Update – Dealing with delays first appeared on Ajuria Lawyers – Leaders in Immigration.

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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As part of its Migration Strategy, the Federal Government is proposing to replace the current TSS visa with a new ‘Skills in Demand’ visa with three targeted pathways:

1. A new Specialist Skills Pathway for any occupation except trades workers, machinery operators and drivers, and labourers earning at least $135,000 (the Specialist Skills Threshold) and no less than Australian workers in the same occupation.

 

2. A Core Skills Pathway whereby occupations will need to be on the ‘Core Skills Occupation List’ (CSOL) which relates to occupations identified by Jobs and Skills Australia as being in shortage or where Australia has committed to providing access to our labour market in relation to that occupation through international trade agreements. Under this pathway, the salary will need to be above the Temporary Skilled Migration Income Threshold (TSMIT) currently set at $70,000 but due to increase on 1 July 2024.

 

3. An Essential Skills Pathway which will become a more regulated pathway for lower paid workers with essential skills—in consultation with state and territory governments, unions.

There is no start date for the proposed changes.

As part of the consultation process, Jobs and Skills Australia (JSA) has now released a draft Core Skills Occupations List (CSOL (second pathway listed above) for discussion. The CSOL will determine which skills are given priority for visas under the temporary skilled migration program.  JSA has divided skills into three categories:

1. Confident On List: Skilled occupations the JSA Migration Model is confident should be on the CSOL.
2. Targeted for consultation: Skilled occupations the JSA Migration Model suggests should be targeted for stakeholder feedback.
3. Confident Off List: Skilled occupations the JSA Migration Model suggests should not be on the CSOL.

A copy of the Draft Core Skills Occupations List (CSOL) for Consultation | Jobs and Skills Australia is available for review and the JSA is inviting stakeholders to provide feedback on these occupations by Friday, 10 May 2024 5.00pm AEST. This can be provided through their online Survey with the ability to upload a separate submission.

There are a number of occupations in the IT, hospitality, financial services and entertainment industry that are on the Confident Off List that could adversely impact clients where salaries are below $135,000 pa.

We will be contacting all potentially impacted clients to discuss the implications and we can also assist with submissions for clients wanting to provide feedback to JSA.

We will continue to monitor this closely and will send further alerts as more information becomes available.

As always you should contact your Ajuria team for more information and assistance.

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