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457 Visa Update – Policy Advice Direct from the Department of Immigration and Border Protection (DIBP)


Written By Michael Walker | Mon, Mar 27, 2017 Michael Walker

Over the last week, we have received written advice from the Department of Immigration and Border Protection (DIBP), relating to several minor changes in DIBP policy and a tweaking of instructions, which are issued to DIBP decision makers, who are engaged in assessing 457 sponsor nomination applications and attendant visa applications.

The issues highlighted are as follows:

Store Manager Positions

DIBP advise that sponsors should not seek to fill, what is ostensibly Store Manager positions, which is a position not contained on the Consolidated Sponsored Occupation List (CSOL), by attempting to substitute the designation with alternate occupations such as Customer Service Manager, Sales and Marketing Manager or Specialist Manager.

However, in limited circumstances, DIBP may consider being more flexible in this area,  where a business is seeking to set up a series of new stores/outlets in Australia for the first time and that the business makes out a case that an overseas person is required to have oversight of the new business venture/s.  Note, a substantive business case needs to made out to support such a request.  Flexibility, under the occupation of Specialist Manager; not elsewhere classified (nec), may be considered.  DIBP will only accept one-off requests in this regard.

Subsequent requests for Store Managers will only be considered under a Company Specific Labour Agreement, should the business consider it still has a genuine need for such positions.  In such cases, the business will need to clearly demonstrate that there is a skill shortage in this area, that reliance on overseas workers will diminish over time and that exceptional circumstances apply to the business concerned.

Skill Assessments

Exemptions may apply to the previously mandatory skill assessment requirement for the nominated occupations of Program or Project Administrators or Specialists Managers (nec).

The exemption may apply under the following circumstances:

• In the case of a repeat 457 visa application, where the applicant provided a skill assessment for the first application, for the same nominated occupation.
• Where the applicant is nominated as an intra-company transfer and has been employed in the same or similar occupation for the overseas business entity.
• Where the visa applicant is being paid at a salary level set at $180,000 or above.
• The sponsor has sponsorship accredited status.


Changes to Salary and hours of work for 457 visa holders

The intent of the 457 visa programme is fill genuine skill shortages within the Australian Labour Market.  Accordingly, DIBP have an expectation that the work to be provided to the 457 visa holder will be full time. 

However, in limited circumstances, part-time work may be permissible, providing that the nominated person is still being paid at market salary rates and that the rate of pay is no less favourable than the terms and conditions of employment, for which the nomination was originally approved.

Also, during the life of the 457 visa , the visa holders’ salary should not decrease. Increases in salary are permissible, but again should be in line with market salary rates

For more information on this matter, please contact one of TSS Registered Migration Agents, for a no obligation discussion

Labour Agreements

On 2 March 2017,  the Minister for Immigration and Border Protection; the Hon. Mr Peter Dutton, made the decision to cease all Fast Food Industry Labour Agreements (FFILA).

However, where a substantive business case can be made out, which demonstrates exceptional circumstances, it may be possible to negotiate a Company-specific Labour Agreement.  The negotiation, in relation to such agreements, is developed directly between the employer and the DIBP and will be examined on a case by case basis. 

Such agreements will only be approved on the basis of a very strong business case being made out, with supporting evidence being required to support the following:

• Clear evidence is provided, in relation to a particular venue or location, that there is a significant skills shortage and that there is clear evidence of the business’ recruitment activities in this regard and why such recruitment activities have failed for the particular location or venue.  (Note, generic requests to fill nationwide positions will not be approved).
• Over time, the business has demonstrated that it has reduced its reliance on overseas workers.

For more information on this matter, please contact one of TSS Registered Migration Agents, for a no obligation discussion

DIBP 457 Processing Standards

We have received an update on DIBP’s current 457 processing standards and processing times, following implementation of DIBP’s new Global Processing model.  These are as follows:

• Allocation for initial assessment – reduced from 50 days to 30 days.
• In cases where requests for further information are issued, it is likely that these will not be looked at for up to 60 days.
• As at 31 December 2016, median processing times for sponsorship applications were at 57 days
• Median processing times for nomination applications were at 46 days.
• Median processing times for nomination applications were at 49 days.

Sponsorship Obligations

DIBP is seeking to remind approved Australian Employer Sponsors, of their legally enforceable obligations, as prescribed under Australia’s Migration Act and Regulations.

Sponsors who are found to be in breach of their obligations face possible sanctions and civil penalties,  Further, 457 visa holders who breach the conditions of their visas, risk cancellation and may be required to leave Australia.

A full list of obligations made be found at the following link:

http://tssimmigration.com.au/downloads/Employer_Sponsorship_Obligations.pdf

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One of our migration agents will be in contact as soon as possible.