Skilled visa newsletters – September 2020

COVID-19 concessions are available to eligible Business Innovation and Investment Program (BIIP) applicants.

These concessions apply to applicants who were granted a Business Innovation and Investment (Provisional) visa (subclass 188) before 1 July 2019, and who wish to apply for a Business Innovation and Investment (Permanent) visa (subclass 888).

These concessions relate to:

• application requirements
• visa criteria requiring specified periods of residence
• specified levels of business and investment activity

These concessions reduce disadvantages faced by subclass 188 visa holders and former visa holders, and subclass 888 visa applicants, who are negatively impacted by the COVID-19 pandemic. These concessions ensure that Australia remains competitive in the international market when attracting and retaining business and migrants of high economic value.

Applicants granted a subclass 188 visa on or after 1 July 2019 are not eligible for these concessions. This is to ensure the concessions focus on those who have already established their commitment to Australia and applicants who have been granted on or after 1 July 2019 have a longer time available on their pathway to permanent residence to recover from the impact of the COVID-19 pandemic.

Employer Sponsor Program

The Employer Sponsored processing network is taking all available steps to minimise delays and finalise applications as soon as possible.

Due to COVID-19 and the associated economic impacts, some additional business verification checks may be conducted to confirm that the business is operating, the nominated position remains available, and that the information provided, such as salary, are current.

Permanent Employer Sponsored Entry Program

We remind registered migration agents that processing of visa applications in critical skills and sectors is in line with the Acting Immigration Minister’s announcement.

Temporary Skill Shortage (TSS)

Skilling Australians Fund (SAF) levy refund requests

The TSS Program continues to receive a high number of Skilling Australians Fund (SAF) levy refund requests where the employer is ineligible for a refund. Please be reminded that the specific requirements set out in Regulation 2.73AA would need to be met for refund eligibility where the nomination has been approved or withdrawn, and that there are no circumstances in which a refused nomination is eligible for a refund.

We continue to prefer complete, decision-ready applications. We are not required to send a request for further information.

Babies and the Temporary Skill Shortage visa

We see an increasing number of enquiries in relation to subsequent entrant applications for babies born in Australia, either before, or after, the parents have lodged new TSS visa applications. In order to satisfy schedule 1, requirements for lodging a valid TSS visa application, the applicant must hold a substantive visa, or a Bridging visa A, B or C. This requirement applies to all primary and secondary applicants, including newborn babies.

Notify us as soon as practicable when a baby is born onshore to a TSS visa applicant or a TSS visa holder. This will avoid complications regarding the baby’s immigration status. This is to ensure that any visa/s the child holds by operation of s78 are recorded, and to facilitate a determination whether the child can be added to any pending application that the parents may have made.

In order to notify us of the birth of a baby in Australia, complete a Form 1022 – notification of changes in circumstances and lodge in ImmiAccount or by post. Include a colour scan or copy of the baby’s Australian Birth Certificate and passport page if they have one.

If you lodge the parents application without including the child, when the parents no longer hold substantive visas, this could result in the baby becoming unlawful and unable to lodge a visa application onshore.

Temporary employment changes – 457, TSS & SESR visa holders

From late September  sponsors will be able to advise us of temporary changes to employment arrangements for 457, TSS & SESR visa holders resulting from the COVID-19 pandemic through the ‘Notification of sponsor changes form’ in ImmiAccount.

Sponsors will be able to notify changes for up to ten visa holders on the one form. One form should be completed to notify commencement of the temporary change, and another form should be completed to notify the completion of the temporary change.

Only one type of change is able to be entered for each visa holder per form. Sponsors should enter the primary reason (for example, ’Reduced working hours’ if the visa holder is temporarily working part-time) for the notification. If a visa holder’s salary has also been reduced as a result of the part-time working arrangements, this can be mentioned in the ‘brief description’ box.

Sponsors should attach a detailed outline of the temporary work change, and may include details of temporary business closure, changes to work practices (for example, a restaurant moving to a takeaway or delivery model rather than eat in) and information about whether Australian employees have had similar changes made to their employment arrangements.

We encourage sponsors to use this new facility to advise us of all temporary employment changes that have occurred since the start of the COVID-19 pandemic, even if these changes have since ceased. 

Arrangements for skilled workers from Hong Kong

The Prime Minister and Acting Immigration Minister’s announcement of new visa arrangements  provide further opportunities for Hong Kong passport holders to remain in Australia, with pathways to permanent residency.

The Migration Amendment (Hong Kong Passport Holders) Regulations 2020 have now commenced and we are making associated changes to IT systems and procedural instructions.

As defined in regulation 1.03, a Hong Kong passport means a Hong Kong Special Administrative Region of the People’s Republic of China passport. No other type of passport, travel document, or ‘Document of Identity for Visa Purposes’, is considered to be a Hong Kong passport for the purpose of the new visa arrangements.

Subclass 457, 482 and 485 visas that were identified to be in effect on 9 July 2020, and where the primary visa holder held a Hong Kong SAR passport at the time the visa was originally granted, have been updated in our systems with an expiry date of 8 July 2025. 

New labour market testing requirements

Under new arrangements announced by the Acting Immigration Minister on 2 September 2020, current labour market testing (LMT) requirements have been enhanced to ensure that Australian workers are prioritised for job opportunities in Australia.

As a result of the amendment, sponsors who are considering employing overseas skilled workers on a Subclass 457 (Temporary Work (Skilled)) visa, Subclass 482 (Temporary Skill Shortage) visa, or Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa, will be required to advertise their vacancies on Jobactive, in addition to at least two other national reaching advertisements.

The enhanced LMT requirements apply to nominations lodged on or after 1 October 2020, to ensure that appropriately skilled Australian citizens and permanent residents are given work opportunities before overseas workers when a business nominates a vacancy.

Sponsors are reminded that applications for positions advertised on Jobactivemust be able to be accepted for at least four weeks as per existing LMT requirements, so consideration should be given to placing advertisements for upcoming positions on Jobactive as soon as possible.

The amendment will not affect nominations lodged before 1 October 2020, or nominations for a select occupation or a select position to which alternative evidence arrangements apply.

Nominations lodged on or after 1 October 2020, without evidence of a Jobactive advertisement that satisfies all existing LMT requirements, such as those in relation to position details and duration, cannot be approved. There are no provisions in regulation 2.73AA or 2.73C that allow for refunds of the nomination fee or SAF levy where a nomination is refused or withdrawn due to failure to satisfy the LMT requirement.