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Immigration Roundup : Economic Migration - The 457 Visa

Written By Lauren Slack
Fri, Jan 16, 2015
Lauren Slack

Over the last 18 months there have been a series of reforms to the immigration landscape within Australia commencing with a rebranding from the Department of Immigration & Citizenship to the Department of Immigration and Border Control. Unlike previous changes which were highly publicised and often had far reaching and immediate implications on businesses and employees alike, the measures that have been implemented by the Abbott Government over the last 18 months would more accurately be described as refinements to the system rather than a fundamental shake-up.

Arguably the biggest reform for businesses during this period was the introduction of Labour Market Testing (LMT) on the Temporary Work (Skilled Visa) or “the 457 Visa” which commenced 23 November 2013. Put in place by the previous Federal government, this measure has placed a positive onus on businesses to demonstrate that they have “tested the market” for locally available talent before turning their searches to candidates from abroad.

There are various exemptions to this requirement with the most dynamic being where the candidate is a citizen of a country with whom Australia has a Trade Agreement such as the recently signed Free Trade Agreement between Australia and the Peoples Republic of China. Companies who want to employ nationals of these countries in specific, defined occupations are exempt from demonstrating that they have tested the market due to the inconsistency between LMT requirements and the notions of free trade/Australia’s international obligations.

2014 also saw the limit on the number of 457 visa places available to standard business sponsors lifted. The imposition of a nomination ceiling (as it is known) has seesawed back and forth over the last few years. This most recent amendment ensures that businesses who become a Standard Business Sponsor after 14th February 2014 will not have a limit on the number of 457 visas that they can support. It is important to note these changes do not apply to businesses who were approved sponsors at that time. Those businesses will still have the ceilings that were in place initially and once they have reached that limit the business will be required to apply to renew their approval even if the sponsorship has not in fact expired.

Similarly, businesses are no longer able to make a nomination application if the validity period of their sponsorship agreement is within 3 months of expiring. Instead, those businesses will be required to apply to renew their sponsorship before lodging the nomination application. The process for renewals must include evidence that the business has met the training requirements imposed on Standard Business Sponsors throughout the years the business was approved.

While the abolition of the nomination ceiling may signal a general “relaxation” to the numbers of 457 visa holders a business is able to have, there are other safe guards in place during the processing of nomination applications ensure that the integrity of the system is being maintained. This includes aspects such as, Labour Market Testing and demonstrating that the business has a genuine need for the role. The “genuine-ness” aspect would necessarily include evidence of the overall makeup, staffing structure and nature of the business. Coupled together, these factors allow the assessing officer to consider whether it is appropriate for a 457 visa to be granted for that role, for that business.

Two significant publications were also released this year. The highly anticipated review of the 457 visa program, “Robust New Foundations” in September 2014 as well as the “Industry Innovation and Competitiveness Agenda” just over a month later. While not directly related to immigration, the Industry Innovation and Competitiveness Agenda gives a useful insight into the broad economic agenda that the Federal Government intends on pursuing. This will naturally have implications for the immigration regime particularly around the 457 and 400 visas.

The reforms put in place throughout this Government’s tenure appear to refine an existing system rather than attempting to start from scratch. The publications released in the second half of the year demonstrate that going forward reforms of this type should continue. As always, the favourability of the 457 visa is dependent on adequate economic conditions within Australia and, subject to any changes in this regard, we do not expect any fundamental changes in the near future.

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