By Linda Geronimo Santos
Solicitor and Migration Agent, NSW and WA
1. 457 visas – rationale
The demand for overseas workers particularly by the mining and similar industry paved the way for the issue of 457 visas. Statistically, the programme has been considered a resounding success, meeting the immediate needs for labour and other professions by the employers. Boom time in mining and quarry industries made it necessary for employers to employ overseas workers where positions were not being filled by local workers. Labour testing, ability of employers to employ overseas workers WHEN AND IF the local work needs could not be met by local workers, training benchmarks, and other regulations for employer and employee that must be met before 457 visa is granted.
Overall, the Filipino workers constitute one of the top 4 sources of employment under the 457 visa programme. Most of these visa holders come from nursing, welding, mechanics profession/trades. A significant number of Filipino tradesmen who are 457 visa holders have had work experience in other parts of the world, e.g. Dubai, Qatar, Lebanon, Africa, etc.
As of l July 2013, changes to the 457 programme have become operative.
2. Changes to the 457 visa programme
Among the changes being considered by the government is labour testing, i.e. the employer should advertise the position locally for six (6) months prior to nominating an overseas employee.
As of date of writing, this has not been passed into law – but is still being strongly considered by the government.
However, the following changes have been passed as law, and will take effect as of lst July 2013. The problem facing employers, employees and migration agents, is that although the changes were to take effect from l July 2013, there seems to be a tendency for the Department to implement the new regulations even for pre-l July 2013 filed applications.
Some of these changes include the following:-
2.1 Demonstrating a genuine need:
The employer should convince the Department that the need is genuine, and the application may be refused if (a) the tasks of nominated occupation do not correspond to the eligible occupation, or (b) the position associated with nominated occupation is not genuine.
2.2 Indicating how many workers an employer will sponsor
The employer are now required to sponsor a number of 457 workers that were approved in their sponsorship application until the expiry date of their sponsorship or until the employer has reached the number of nominations approved for sponsorship.
2.3 Minimum salary threshold increased to $53,900.00 base salary per annum.
2.4 English proficiency requirement amended
English requirement based on English Language Salary
Exemption Threshold (ELSET) was lifted to $96,400.00 per annum, unless the visa applicant is otherwise exempt from English requirements, other than ELSET.
2.5 Employment to be direct employer-employee relationship
Pre-l July 2013, employers were able to outsource their 457 visa holders to work for other companies. This is now amended so that the employer shall employ directly 457 visa worker.
2.6 Definition of English language now aligned with the Employer Nomination Scheme
If 457 visa applicant is not eligible for the exemptions under ELSET (‘2.4” above refers),
the visa requirement for 457 is now aligned with Employer Nomination Scheme, i.e. “B” for all four components of OET English test.
Occupation –based exemptions to the English language is now removed.
2.7 Ongoing requirement to train Australian citizens and permanent resident workers on an ongoing basis.
Employer must provide evidence of ongoing training. The record must show that this requirement is made by the employer on an ongoing basis., for the duration of the business sponsorship approval.
2.8 Skills assessment for generalist occupations
The assessment of generalist occupations (not elsewhere classified), and not required for skills assessment prior to l July 2013, e.g. Program and Project Administrator, and Specialist Manager not elsewhere classified is now required.
The confusion takes place when Department officers apply this new regulation for pre-l July 2013 applications.
2.9 457 visa holder must commence employment within 90 days from arrival in Australia.
2.10 Extend the period of seeking alternative sponsor to 90 days. Prior to l July 2013, the
- period was limited to 28 days.
2.11 Fair Work Inspectors can now act as Inspectors under the Migration Act and
exercise powers for Migration Act purposes.
2.12 Sponsors are required to pay certain costs and these must not be passed on to
2.13 Mandatory registration, licensing or membership
Where an occupation requires registration, membership or licensing, this is now mandatory, and must be obtained within 28 days.
While the list is not exhaustive, the above constitute the major changes to the 457 visas.
As changes take effect for 457 visa requirements, the threshold will be higher and assessment will be harder. If you are a 457 visa holder, and you have worked for the same employer for at least two years; your employer is prepared to sponsor you for permanent residence, and you think you may be eligible for Employer Nominated Scheme (186 transitional stream) visa, you should see a migration professional before changes may be effected regarding transition from 457 to l86 transitional visa.