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October 2016 – 457 visa policy updates


Written By Shannon Dutt
Thu, Oct 13, 2016
Shannon Dutt

In its 4th newsletter to migration agents, the immigration department has given advance notification of forthcoming changes to immigration law and policy.  These include:
    •  changes due to take effect on 19 November that will affect 457 visa holders when they leave employment; and
    •  policy changes to accredited sponsorship due to take effect on 14 October.

Key points of interest are covered below.

Upcoming Change: period of stay after cessation to be reduced from 90 days to 60 days

One condition attaching to a 457 visa is Condition 8107. Currently, if a visa holder ceases employment, the period (of unemployment) cannot exceed 90 days.  The effect of Condition 8017 is often expressed as giving the 457 visa holder 90 days to remain in Australia once they cease work.  However, in reality it also provides a 90-day period during which the person might be nominated by a new employer or the person might apply for a different sort of visa.

Condition 8107 was introduced to prevent 457 visa holders from leaving employment with their sponsor and staying in Australia and perhaps then working without permission.  Importantly, it also means that the person’s 457 visa is liable for cancellation after 90 days. 

Two changes are being introduced that affect this.  First, visa cancellation will not be considered if a new nomination application has been lodged within 90 days.  This is an important concession because it helps in situations where a new employer has lodged a nomination for a 457 visa holder, but the length of time the immigration department takes to process of the nomination puts the visa holder in breach of the 90-day rule. 

Further, and perhaps of greater general significance, from 19 November 2016 the period that a primary subclass 457 visa holder can remain in Australia after their employment ceases will be reduced from 90 days to 60 days. Please note - This change will only apply to subclass 457 visas granted on or after 19 November 2016.

Update on Priority processing allocations

Lengthy processing times are currently a feature of the 457 visa programme, with applications taking approximately 50 days to be assigned to a case officer and between 2 to 3 months to be processed.  Given the issues this creates, the Department introduced a system for allocating cases for priority processing in some circumstances.  This involves e-mailing the Department with a short explanation why priority allocation should be considered and the timeframes relevant to the request.

In its recent newsletter, the Department has provided insight into how requests of this type are handled.

First, that if a request is accepted, the Department will respond within 48 hours.  This also signals that a request has been unsuccessful if the Department does not respond.

Second, the Department has provided a set of questions to help sponsors understand the circumstances which might give a case priority status:

    -  is your application subject to time constraints which will have a significant negative impact on an Australian business, citizen or permanent resident?
    -  will a delay in processing the application seriously and substantially negatively impact on a person’s physical and/or mental well-being?
    -  will a delay in processing the application negatively impact a high-profile project that will contribute significant economic or reputational benefit to Australia?
    -  are you applying for a nomination to change employers for an existing subclass 457 visa holder and is there a specific reason for urgency – e.g. client has been unable to work for significant periods and are they in financial difficulty?

Ideally, the supporting statement accompanying the priority request should address these criteria and be accompanied by supporting evidence where available.  Consideration will not be given where a priority request is made for reasons of efficiency or other unexceptional circumstances.

Change: New sponsorship accreditation arrangements

Most 457 visa sponsors have a Standard Business Sponsorship (SBS).  The Department introduced Accredited Sponsor status for high-volume low-risk users of the programme.  Advantages of being an Accredited Sponsor include faster processing times.

On 1 July the rules for obtaining accredited sponsorship were changed making it available to a larger number of companies.  The principal change was that a company could be considered for accredited sponsor status if it had sponsored at least 10 x 457 visas in the past two years (24 months).  This was a reduction from the 30 x 457 visas previously required. 

This change was originally interpreted as requiring sponsors to have had at least 10 x primary 457 visas granted during the two-year period.  Going forward, however, the Department will take a more flexible approach under which the requirement will be at least 10 x nominations approved.  This change allows the inclusion of cases where a company has nominated someone who already holds a 457 visa.  For companies seeking to qualify as Accredited sponsors, this more generous approach is welcome.

To become an Accredited sponsor, companies also need:
    • to specify salary rates for Australian employees with an Enterprise Agreement or Internal Salary table; and
    • provide a description of how the salary was determined by the business and reflect current market salary rates. 

Salary tables should detail salaries against the ANZSCO occupations and not against internal structures, and should include any previous occupations used for 457 applications.  Accredited sponsorship applications must also include a copy of the sponsor’s template contract or assignment letter.

Processing times and changes to caseload allocation

The Department is undertaking a number of steps in an effort to reduce processing times.  Under one such initiative, 457 processing will move to a “global allocation model” across the Department’s five processing centres. Associated nominations and visa applications will be allocated to one case officer at the same time.  This is a move designed to improve consistency of decision-making as well as improving efficiency.

 

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