In the last six months, there have been significant changes in obtaining short term visas for applicants seeking to work in Australia. It is a common misconception that the Subclass 457 is the only option for applicants working in Australia on a temporary basis. Due to recent changes in Australian immigration law, the Subclass 400 visa may now be more appropriate for an applicant in certain circumstances.
Longer visa terms for the Subclass 400 Visa
The Temporary Work (Short Stay) visa (Subclass 400) is a short term work visa for highly specialized assignments of a fixed term. The Subclass 400 visa does not require employer sponsorship and has far less onerous requirements than the longer term Subclass 457 Temporary Work (Skilled) visa. As of 23 November 2014, it is now possible to apply for a Subclass 400 visa with a six month period of stay. Previous regulations only allowed a maximum six-week stay, with up to three months in special circumstances.
In order to obtain a Subclass 400 visa that is valid for six months, a strong business case must be put forward. Applicants requesting a stay period of more than three months will be required to provide evidence that their activities will not adversely impact Australian workers, including being remunerated in accordance with Australian wages and conditions. The Department of Immigration and Border Protection (‘DIBP’) will consider the following evidence:
- Evidence about the nature, size, duration, and importance of a project to the local community and any potential impacts to the business/community should the project not be able to proceed, including employment opportunities for Australian workers;
- Evidence that specialist advice/expertise from overseas is required, which may include evidence from an employment agency of a shortage of similarly qualified persons in Australia;
- Whether there are contractual obligations relating to the installation/servicing of a piece of equipment;
- Evidence that the applicant’s proposed employer has tried unsuccessfully to hire an Australian to do the proposed work (for example, evidence of job search, training programs, letter of support from the relevant union);
- The number of Australians being employed on the project and/or by the business;
- Whether there is enough time available for an Australian to be trained to do the proposed work over a longer period; and
- The employment conditions of the applicant, including their salary arrangements and whether they are in accordance with local labour market requirements.
If it is likely that the assignment will extend beyond six months, a Subclass 457 visa should be requested at the outset. In practice, six month visa terms are only granted in exceptional circumstances. Furthermore, a second Subclass 400 visa for the same tasks and duties can be difficult to obtain out of concern that the assignment is in fact ongoing. It will be looked on favourably if it is evident that the extension is required due to factors beyond the employer’s control. However, a subsequent application will be more closely scrutinized, and the applicant’s previous travel to Australia will be examined. Policy states that a total stay in Australia of more than six months in any twelve-month period may be considered to be “non-ongoing.”
Key Subclass 457 visa changes
The Temporary Work (Skilled) visa (Subclass 457) is the visa of choice when the Subclass 400 visa is not suitable for Australian work assignments. On 18 March 2015, the Australian Government announced that it will support a majority of recommendations made by the Review Committee responsible for assessing the Integrity of the 457 Visa Programme, and implemented the following recommendations:
- The English requirement has been amended from a minimum score in each band to an average score. For example, in relation to the International English Language Testing System (“IELTS”), the 457 applicant now requires an average of 5 across the four competencies (or the equivalent for an alternative English language testing provider).
- The English exemption which required five years continuous study is now amended to five years cumulative study in an English speaking institution.
- The approval terms of Standard Business Sponsors has now increased from three years to five years for established business sponsors and one year to eighteen months for start up business sponsors.
- The timeframe for the sponsor to notify the Department of Immigration of notifiable events is now extended from 10 business days to 28 days after the event has occurred.
- The salary to obtain an exemption from demonstrating “market rate” has been reduced and is now aligned with the income level above which the top marginal tax rate is paid (currently at AUD 180,000).
Recommendations that require consultation with stakeholders may not come into force until 2016. A key recommendation that is expected to be implemented is the replacement of the current training benchmark required of business sponsors with an annual training fund contribution based on each 457 visa holder sponsored, with the contributions scaled according to size of business.
Overall, these are positive changes that are intended to maintain the integrity of the 457 program and streamline the processes for trusted and low risk business sponsors. By extending Subclass 400 visa terms and implementing changes that ease the administrative burden on both employers and applicants, there is certainly a trend towards providing more flexibility to all parties involved.
