What happened?

The Department has recently provided a number of important updates on issues relating to Employer Nominated Visas (Temporary Skills Shortage (TSS) visas, and Subclass 186/187 visas):

• Further implementation details - Skilling Australians Fund (SAF) levy
• Updates on Labour Marketing Testing, including using LinkedIn for recruitment purposes
• Obtaining permanent residency for 457/TSS visa holders who have been working for an associated entity of the Sponsoring company

If you attended our recent briefings on the Employer Nomination Visa changes, these were all issues that we highlighted as potential problems.

Skilling Australia Fund

The Department has advised that it expects the SAF levy will be implemented during the first quarter of 2018-2019.

From the implementation date, the SAF levy will be payable on all TSS and subclass 186 and 187 nomination applications.

The amount that will be payable is listed below:

Labour Market Testing

The Labour Market Testing policy has been updated (with immediate effect):

• LinkedIn’s online recruitment platform and industry specific recruitment websites are now acceptable mediums for advertising the nominated positions (Note that job vacancies must not be restricted to LinkedIn profile members)
• Other social media platforms (including Twitter and Instagram) are still not accepted methods of advertising
• If the position is an ‘intra-corporate transfer’ from an existing branch or an associated entity of the company, no advertising needs to be done. Evidence of the intra-corporate transfer arrangement (such as a formal letter of transfer) is sufficient.

In addition to these changes, from implementation (expected in the first quarter of 2018-2019), all advertising must meet the following:

1. The advertising must occur within four months of the date of lodgement of the nomination (it was previously 12 months)
2. Advertising must be in place for a total of at least four weeks instead of the current 21 days
3. The advertisement must set out any skill or experience requirements that apply to the position

PR for 457/TSS visa holders who have been working for an associated entity

Under the direct control requirement for 186/187 nomination applications, the visa applicant must be working in a position that is under the direct control of the nominating company.

The Department has previously applied a broad interpretation to this requirement for 457 visa applicants who had been working for an associated entity of the Sponsor, rather than for the sponsor itself. This meant that a person who had been working for an associated entity as a 457 visa holder for the minimum period would be able to access permanent residency through the subclass 186/187 Temporary Residence Transition stream.

The policy instruction providing for this wider interpretation was amended with the 18 March 2018 changes, eliminating this advice to visa decision-makers, and raising the concern that 457/TSS visa holders working for associated entities would not have access to permanent residency through the Temporary Residence Transition Stream.

The Department has now reverted to the previous broad interpretation of the direct control requirement for subclass 186 and 187 permanent residency nomination applications – preserving the PR options for 457/TSS visa holders working for associated entities of a Sponsoring company.

How do these changes impact me?

• If you are planning to lodge a TSS or 186/187 visa in the next few months, consider whether it is more cost effective for your company to lodge prior to the implementation of the SAF levy.
• As always, we strongly recommend that you incorporate the labour market testing requirements into your recruitment processes, to ensure that you maintain the flexibility to hire the right person for the job.

More information?

If you have any questions or are interested in more information about these changes and how they impact your organisation, please contact a member of our Migration Team below.