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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The post Visa Options & Immigration Issues for the Hospitality & Accommodation Industries first appeared on Ajuria Lawyers – Leaders in Immigration.

From 6 December 2023, there are new rules that apply to fixed-term employment contracts in Australia. You can find more detail about this on the Fair Work Ombudsman website

Importantly, the new rules:

1. Limit the maximum length of a fixed-term employment contract to two years.
2. Limit the maximum number of consecutive fixed-term employments to two (four years).

There are some exceptions to this.

As we are not employment lawyers, we cannot advise clients about the changes or how they might impact your employment arrangements, however, the changes would create a potential immigration issue if your business is seeking to sponsor an employee on a TSS visa for more than two years and intends to use a fixed-term contract.

If you use fixed-term employment contracts for TSS visa holders please contact us.

If you would like more information about the impact of the changes on your business, you should contact your employment lawyer or we can provide you a referral.

As always please contact us if you require more information.

The post Changes To Fixed-term Employment Contracts first appeared on Ajuria Lawyers – Leaders in Immigration.

In a complete reversal of previous advice, the Department of Immigration yesterday confirmed to us that Working Holiday Makers would again be able to assume permission to work for the same employer for more than 6 months if their work will be:

• in different locations and work in any one location does not exceed 6 months
• in plant and animal cultivation anywhere in Australia
• in certain industries, including aged care and disability services, fishing and pearling, tree farming and felling, construction and mining, in northern Australia only (see website for a definition of Northern  Australia)
• in natural disaster recovery
• in critical sectors, including agriculture, food processing, health, aged and disability care and childcare, anywhere in Australia
• in the critical sector of tourism and hospitality anywhere in Australia

This remarkable turn-around comes after the immigration industry and employers raised serious concerns about the impacts of the previous policy shift which stated that written permission would need be sought in all cases after 1 January 2024 (see our Alert of 8 December 2023)

Individuals who have lodged requests for permission can continue in their employment until they receive a response. Individuals who have not yet made such a request will not need to do so provided they fall within the circumstances listed above.

This is great news for Christmas for many industries and shows that Government will listen when policies do not make sense for employers, employees and the economy. However as this will be all reviewed in 2024 as part of the Government’s  Migration Strategy we expect the government is looking to tighten up the program and this policy relaxation may be short lived.

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

The post Reversal of Policy for Working Holiday Makers in Australia first appeared on Ajuria Lawyers – Leaders in Immigration.

The post Australia’s Migration Strategy – What Are The Proposed Changes? first appeared on Ajuria Lawyers – Leaders in Immigration.

There is a lot of discussion on the greatly anticipated Government’s release of its ‘Migration Strategy’. The Hon Clare O’Neil MP, Minister for Home Affairs and the Hon Andrew Giles MP, Minister for Immigration, Citizenship and Multicultural Affairs today released the report with most of the changes have been foreshadowed throughout the year and will not be implemented before the end of 2024.

Most of the announcements are preliminary with little detail and subject to ongoing consultation and consideration. However the direction of the Government is now somewhat clearer:

1. Create different rules for different types of employees sponsored by employers on temporary visas.
2. Increase the ability of employees to move between employers and to determine their own permanent residence pathways.
3. Sanction employers who are found to be doing the wrong thing.
4. Restrict the use of Working Holiday Visas, Student visas and Graduate Visas to become de facto work visas and so control the impact of temporary visa holders on the workforce.
5. Strengthen the geo-political ties in the Indo-Pacific region.

The following table summarises the main announcements made today:

We will provide more updates as the strategy outcomes are developed and released by government.  The strategy is complex involving many layers and no doubt further information will be provided  when the Federal Treasurer releases its Mid-Year Economic and Fiscal Outlook on Wednesday. In the meantime join our webinar for a comprehensive analysis and Q & A session.

The post Australia’s Migration Strategy released today first appeared on Ajuria Lawyers – Leaders in Immigration.

Some welcomed news today, with a change announced to the Labour Market Testing (LMT) requirements for Temporary Skill Shortage subclass 482 (TSS) visa and Skilled Employer Sponsored Regional subclass 494 visa.

From 8 December 2023, there is no longer a requirement for employers to advertise on the government website Workforce Australia to meet the LMT requirements.

Where an exemption/alternative evidence does not apply to meet the LMT requirements, employers are required to:

1. Advertise the nominated position on two platforms:

• on a prominent or professional recruitment website with national reach that publishes advertisements for positions throughout Australia
• if the sponsor is an accredited sponsor, on the business’ website.
• in national print media (that is, newspapers or magazines with national reach that are published at least monthly and marketed throughout Australia) or on national radio with national reach

2. Advertise the nominated position for at least four weeks in the four months immediately prior to lodgement of a TSS nomination application.

The Department have also clarified they will not accept evidence of non-consecutive advertising. A job advertisement must run over a continuing period of time, rather than separate non-consecutive periods. Overlapping job advertisements will be accepted, but not back-to-back advertisements.

For example, an advertisement is posted on a recruitment platform from 1 November 2023 to 20 November 2023 (20 days). A duplicate advertisement is run on the same platform from 19 November to 4 December 2023 (14 days). This example would comply with LMT requirements as the overlapping advertisements have been posted for a continuing period of at least four weeks. The day which overlaps may only be counted once. If the second advertisement was posted on 21 November, the department would not accept that the ad has run continuously for 28 days.

The Migration Strategy will be announced today which is expected to reveal a number of other changes to the TSS program.

As always please check with your Ajuria advisor if you have any questions.

The post Changes to Labour Market Testing Requirement first appeared on Ajuria Lawyers – Leaders in Immigration.

As a reminder, the current concessions for Working Holiday Makers (WHM) that allow them to work for one employer (with the same end user or Australian Business Number) for more than six months will end on 1 January 2024. See our alert of 14 June 2023.

This means that from that 1 January 2024, WHMs will only be able to work for one employer for up to six months unless they receive written permission from the Department to extend this time. Significantly, this will end the previous flexibility in policy to automatically extend this period where the WHM remains with the same employer but at a different location.  This is a major departure from previous policy that has been in place since September 2016. Businesses need to be vigilant they do not continue the practice of moving locations in order to extend work rights beyond the 6 months.

Examples:

• The WHM started with the employer on 1 March 2023, but has continued to remain with the employer under the COVID concessions.  The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM started with the employer on 1 August 2023. The employee will need to cease work on 1 February 2024 unless they have received permission in writing to extend the employment with the employer.
• The WHM arrived in Australia in June 2023 and started with the employer on 1 July 2023 and is currently awaiting the outcome of a TSS visa. The employee will need to cease work on 1 January 2024 unless they have received permission in writing to extend the employment with the employer.

The changes mean that all employers must review their current WHM population and either seek written extensions before 1 January 2024 or apply for another visa such as a TSS visa (in which case the current WHM visa validity period will determine if a written extension is required).

Under the Department’s current policy, an extension of time may be granted if:

• The employee has made an application for a work visa that will allow them to work for the same employer.
• There are exceptional circumstances such as:
  • the visa holder’s work is critical to a project that takes longer than expected (for example, a lawyer working on an extended trial); or
  • the visa holder is doing disaster recovery work after a major disaster (for example, helping to rebuild after a flood); or
  • the workplace has been affected by a major disaster and the visa holder was physically unable to go to work (for example, returning to a farm to help with the harvest following flooding).

However, the Department has advised us that this policy is being redrafted and may not remain the same. We will therefore need to await the new policy before being able to say with any certainty whether or not a particular application for extension will succeed.

The Department has also advised us that the Government is expected to release its Migration Strategy this year which may include the following reforms to the WHM program:

• restoring cultural exchange as the primary focus;
• not tying access to subsequent visas to the performance of work; and
• limiting the WHM program to a single 12-month visa.

We are not able to say with any certainty what these changes will be, however it does seem that the WHM will become less flexible as a tool for employers to manage temporary, seasonal or transient positions.

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

The post Significant Changes for Working Holiday Makers in Australia first appeared on Ajuria Lawyers – Leaders in Immigration.

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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