Forget all the bluster and confusion surrounding the scrapping of 457 visas – a registered migration lawyer busts 11 of the most common misconceptions and reveals exactly where you and your employees stand.
Australia’s Prime Minister shocked almost everyone on 18 April 2017 abolishing the Temporary Work 457 visa, replacing it with the new Temporary Skills Shortage (TSS) visa due March 2018, with changes already made and more phasing in before then.
The endless dramatic chatter about the 457 for the last few weeks is a classic example of the many misconceptions that swirl around migration and which must be addressed with correct and timely advice.
Myth #1: everything being publicly said about the changes is correct
For over 25 years, I have been advising migration clients and for almost all that time, the media and general public have been confused and upset about migration. This is because the mixture of high-stake political agendas and complex legal matters are almost impossible to report or discuss accurately.
National elections have even been decided on migration threats or outcomes and almost nothing stirs the media and the populace like it.
The dreadful rise in global terrorism and mass migration, either fleeing from or taking advantage of it, only exacerbates the situation.
In such an atmosphere, complex law changes have little to no hope of being properly explained or understood.
Don’t listen to, or worse still, rely on rumors, gossip, or even the well-meaning advice of friends and family about visas: no two cases are exactly the same. A licensed migration agent and/or experienced migration lawyer is best to give you migration assistance in Australia, especially with the 457 visa changes.
Myth #2: these changes are completely necessary
The 457 visas apparently peaked at 126,000 in 2012 and dropped to just 95,000 in 2016. So, why are these changes being made?
According to Mr Turnbull: “These measures will sharpen the focus of Australia’s employer-sponsored skilled migration programs to ensure they better meet Australia’s skills needs, increase the quality and economic contribution of skilled migrants, and address public concerns about the displacement of Australian workers.”
Of course, that’s a politician speaking. The fact that these changes come hot on the heels of Trump’s Muslim countries visa ban, and not long after immigration problem driven Brexit, is no political coincidence.
Myth #3: the 457 visa is already gone
Existing 457 visas will continue to remain in effect. However, the main change is that 457 visa covered 651 work occupations, and 216 occupations are now no longer eligible for any kind of skilled migration visa (see list below). In addition, legislative caveats have been added to 59 other occupations.
For example, customer service managers must work for an employer with an annual turnover in excess of $1 million, have a base salary over $65,000 and can not be based in a front-line retail setting. This vague, wide-ranging occupational title is often abused by applicants.
Existing 457 visas will continue to remain in effect, including primary visa applications, lodged, which are still pending a decision on 19 April 2017.
The 457 visa applicants and nominating businesses who have lodged on or before 18 April 2017 and have not yet been decided, within one of the 216 now removed occupations, may be eligible for a refund of their visa application fee.
Myth #4: All 457 visas will be limited to two years rather than four, as previously has been the case
The 457 visas were generally granted for four years. With 457 visas granted on or after 19 April 2017, the maximum four-year visa period will, however, only be available where the primary applicant’s occupation is on the new Medium and Long-term Strategic Skills List or MLTSSL (the new occupation list name for the old Skilled Occupation List/SOL).
For all other applicants on the STSOL (the new occupation list name for the old Consolidated Sponsored Occupation List/CSOL) where their occupation is not on the MLTSSL, a maximum visa period of two years will be available.
This visa will be renewable once.
Myth #5: 457 visa holders no longer have a pathway to permanent residency (PR)
Contrary to the many rumours flying around, there are numerous PR options still available, including moving up to an employer nomination sponsored (ENS) PR or a Regional Sponsored Migration Sponsorship (RSMS) visa from a TSS visa, in the future, after three years on a TSS visa.
Further occupational list changes are occurring here, however, and the age limit will drop from 49 to 44 for direct entry ENS applicants from 1 July 2017, and for all ENS applicants from March 2018.
The RSMS requires a job offer in a regional area out of the main capital cities, but has 56 per cent more occupations available to it than the ENS.
Look carefully for other PR visas available in the skills, business, partner/spouse/de-facto, distinguished talent streams depending on eligibility.
Myth #6: 457s won’t be replaced by anything similar
The new TSS visas will actually be very similar to the 457 visa, although the criteria will be more restrictive. It has smaller occupation lists, a requirement of at least two years’ work experience in the visa applicant’s skilled occupation, and mandatory labour market testing for the position, among other changes.
Myth #7: existing 457 visa holders have to leave Australia
This is not true at all, and would only be the case if a visa holder have had their visa cancelled or ran out of migration eligibility for another visa, which could have happened under the old rules anyway.
Employers in some industries will be impacted more than others. Employers should look at preparing and lodging 457 applications well before March 2018, and ENS applications immediately.
Myth #8: existing business sponsors won’t accept the new short and medium-term visas
It is a myth to ever think that migration laws are fixed in stone and unchangeable. The opposite is always the case, and even if prior planning by employers and employees now has to change, this is just the reality of dealing with the volatile migration marketplace.
Myth #9: new occupation lists are final and won’t be changed
The removal of 216 occupations from the lists overnight on 18 April 2017 proved massive changes can and will occur without notice.
More changes are coming and regular reviewing of the occupational lists will continue.
However, concessions for regional areas, such as waiving nomination fees and providing age exemptions for certain occupations, along with far larger occupational lists, will continue to occur.
Myth #10: businesses can no longer hire foreigners
This is clearly wrong, as the 457 still exists and the new TSS visa from March 2018 will still allow hundreds of occupations entry to work in Australia.
Myth #11: skilled employees are rejecting Australian job offers after the 457 changes
I would advise any prospective 457 employee or employer to think very carefully before believing this. Not only are there still positions available, but with proper planning and professional advice, the time to make moves is now, especially if you are in the 45 to 49 age group and looking for PR.
However for the right applicants, there are always numerous visa options if you know where and how to look for them. So, stay positive!
Justin Rickard is a lawyer and registered migration agent at Australian Immigration Lawyers. He also has put together a list of the occupations no longer considered eligible for skilled worker visas.
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