It’s Here! The March TSS Visa Implementation

Introduction of the new Temporary Skill Shortage (Subclass 482) visa and associated changes to the Employer Nomination Scheme 186 and Regional Skilled Migration Scheme 187 Permanent Residency visas come into effect 18 March 2018.

So what took so long? The Department of Home Affairs (formerly Immigration & Border Protection) have announced that the new Regulations have now been signed into effect by the Governor General and will come into effect from Sunday 18 March 2018.

While 48 hours’ notice would widely be considered scandalous in most areas of Australian law this is a surprisingly long period in immigration practice. In the past the Department have made major changes with less than 24 hours’ notice, or with no notice at all!

Information provided earlier in March suggested that there were a number of factors which had delayed implementation – the Department of Home Affairs was liaising heavily with external Departments on a range of new issues related to the TSS visa, including occupations for regional exemptions for the 457 list, the Department had to align timing with Vice Regal availability, and (potentially) the passage of the Migration Amendment (Skilling Australia Fund Bill) 2018 (the ‘SAF Bill’).

The SAF Bill did not pass through Parliament, meaning that the new visa system will effectively operate without a training system until it does or an alternative system is introduced.

Below is a list of headline changes which will come into effect from March 18th. Further information will be provided in coming days as we have time to digest the information in detail and Instructions and Instruments are released.

Regulatory changes from 18 March

Business Sponsorship changes include:

  • Sponsors will have the obligation to comply with Training Benchmark A and B removed. As the SAF Bill has not passed this means that employers will not need to comply with any training requirements for 457 and TSS applications. Obligations will remain in some cases for 186 TRT applications (see below).
  • Additional prohibitions on recovering costs from employees for costs related to visa applications is specifically prohibited.
  • Refunds will be available for Business Sponsorship applications where there is an error on the part of the Department of Home Affairs.

Changes to the Nomination include:

  • The 482 stream will be determined by the occupation list at the time of lodgement – subsequent changes will not affect the list.
  • A new concept, the ‘Australia Market Salary Rate’ (‘AMSR’) will be introduced. The AMSR is to be calculated in accordance with instructions in a Legislative Instrument which is yet to be released. The Department will have the right to dispute the AMSR for a role based on labour market conditions.
  • Assessment of terms and conditions will be expanded from remuneration only to separate comparisons for annual earnings, earnings and employment conditions.
  • Nominations must specify the period of appointment as expressed in years. A maximum of 2 years will be available for STSOL occupations unless International Trade Obligations apply.
  • TSS visa may be cancelled if the visa holder ceases to have a genuine intention to work in the position, or the position ceases to be genuine.
  • Employers must certify that contracts of employment comply with all Federal, State and Territory employment legislation.
  • Only full time positions will be available.

New rules relating to the TSS 482 visa include

  • New requirement for 2 years work experience in the nominated occupation.
  • Schedule 3 will no longer apply – meaning that individuals will be able to apply from a Bridging Visa A, B or C.
  • PIC 4007 will enable health waivers rather than the previous system of employer certified waivers.
  • New Condition 8607 replaces 8107 which will limit visa holder employment to the sponsoring employer.

Stream based (MLTSSL & STSOL) regulations will include:

  • Applications in the STSOL stream will not be possible if the person has held more than 1 TSS visa onshore.
  • Short Term stream will have additional Genuine Temporary Entrant (‘GTE’) requirement whereby applicants must demonstrate they intend to remain in Australia temporarily.

Changes to the 186 and 187 visas

  • 186 and 187 TRT only available for holders of MLTSSL TSS visa. Exemption applies to existing 457 visa holders and where they are listed in an instrument (to be released).
  • 186 and 187 TRT requirement extended to require work 3 years work in the last 4 years in the nominated position while the holder of a 457 or TSS visa (for 187 visa there is capacity to exempt classes of persons).
  • 186 and 187 TRT age limit reduced to 45 (though transitional arrangements will apply for 457 visa holders).
  • New criteria strengthen delegate’s ability to consider if employer has capacity to employer applicant for 2 years under proposed terms and conditions.
  • 186 and 187 TRT must match first four digits of ANZSCO code in most recent TSS or 457 visa – this will give some flexibility to use work in a previous closely related role, for example, experience as a pastry chef may be counted towards time as a baker.
  • Must be no information available to delegate that non-remuneration based terms and conditions are less favourable than equivalent Australians.
  • New rules will enable the delegate to request a Skills Assessment for applicants for the 186 and 187 TRT pathways.
  • For 187 Direct Entry applications the delegate and the Regional Certifying Body can consider whether anyone ‘would move’ to the area to perform the role.
  • Caveats can now be imposed on RSMS occupations.

More to follow shortly.

If you have any questions or concerns about how these changes will effect your employer visa compliance, don’t hesitate to contact us.

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