REPLACEMENT OF THE TEMPORARY WORK (SKILLED) VISA (SUBCLASS 457) VISA WITH THE TEMPORARY SKILL SHORTAGE VISA

The Temporary Work (Skilled) Visa (Subclass 457) (457 Visa) is the visa that has been most utilised by Australian employers to fill vacancies in their businesses which could not be filled through the Australian labour market.

From March 2018, the 457 Visa will be abolished and replaced with a new employer sponsored work visa called the Temporary Skill Shortage Visa (TSS Visa).

Below we outline the main changes, both presently and in the future, that apply to the 457 Visa and the main areas of difference between the 457 Visa and the TSS Visa.

Eligible Occupations

From 19 April 2017, a shorter list of eligible occupations applied to the 457 Visa than was previously the case. A similar redacted list will likely apply for the TSS Visa.

The list of occupations that are presently eligible for the 457 Visa can be accessed at the following address: https://www.legislation.gov.au/Details/F2017C00352

Work Experience

It is presently the case that an applicant for a 457 Visa can satisfy the “skill level” for the visa by having a relevant educational qualification of a specified standard or by having a specified amount of relevant work experience.

For the TSS Visa, all applicants will be required to have at least 2 years of relevant work experience to be eligible for the visa.

This is substantial issue for international students who wish to apply for a TSS Visa after studying a course in Australia. They will need to gain 2 years of relevant work experience before they can apply for the visa. Given the current validity period for a Temporary Graduate Visa (Subclass 485) (which allows international students to live and work in Australia for a specified amount of time after completing their studies) is 2 years, timeframes will be very tight for such people who wish to apply for the TSS Visa unless changes are made to the Subclass 485 Visa.

Labour Market Testing

Labour Market Testing (LMT) requires Australian employers to submit evidence that they have advertised the open position in their businesses and a suitable candidate could not be found in the Australian labour market.

Presently, LMT is only required for some occupations eligible under the Subclass 457 Visa Programme.

For the TSS Visa, the government has indicated that LMT will be required in almost all circumstances (some limited exemptions will exist).

This will be an issue for some given the tight timeframes for international students wishing to apply for the new visa after gaining the required work experience, as evidence of LMT needs to be provided at the time an employer nominates a potential visa applicant to fill an open position in their business.

Validity Period

It was previously the case that an applicant could be sponsored for a wide variety of occupations contained on the former “Consolidated Skilled Occupation List”. In addition, all successful visa applicants potentially had a pathway to permanent residency through their nominating Australian employer.

However, the 457 Visa has been changed to allow applicants applying for the visa under an occupation contained on the:

  1. Medium and Long-Term Strategic Skills List (MLTSSL), a maximum stay of 4 years in Australia (with the opportunity to be sponsored for permanent residence by their employer after a specified time); and
  2. Short-Term Skilled Occupation List (STSOL), a maximum stay of 2 years in Australia (with no opportunity to be sponsored for permanent residence by their employer).

The distinction resulting from the breaking up of the former Consolidated Skilled Occupation List into the two lists above is likely to be maintained for the TSS Visa.

It will always be an option for 457 Visa holders who applied on the basis of an occupation contained on the STSOL to perpetually re-apply for a new 2-year visa, though this will not be wholly satisfactory for such applicants who usually want to have a pathway to permanent residency.

Conclusion

The TSS Visa will be more restrictive than the current 457 visa. Businesses seeking to sponsor foreign workers should look at lodging their applications well before March 2018 if possible.

If you need any further information about the changes being made to employer sponsored migration, please contact us.

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