Coronavirus - Impact on Temporary Visa Holders and Employers

The Australian Government have been providing a number of announcements including the latest social restrictions and travel ban on Australians wanting to leave the country. The purpose? To prevent further spread of the COVID-19 virus (Coronavirus) and give assistance to the Australian businesses and employees experiencing financial difficulty from its impact.

In some respects, the expanding and mandatory social distancing requirements are giving many a positive opportunity to reconnect and re-establish meaningful relationships beyond the virtual screen.

So far, however, the announcements provided to the public are yet address immigration-related matters and his lack of information is leaving a large number of sponsoring employers and temporary visa holders, both inside and outside Australia, in uncharted territory.

Here, we highlight some of the relevant issues that are on the minds of businesses and temporary visa holders and which are also being discussed with the Australian Government and the Department of Home Affairs: visa conditions, sponsor obligations and financial support for temporary visa holders.

Unemployment in Australia

The Australian Government has estimated that at least one million people, including temporary visa holders, could become unemployed as the COVID-19 virus continues to force countries to expand their travel bans and push people into lock down.

Lucky for many, there are companies who are able and willing to continue providing services remotely, allowing for staff to remain employed and work from home.

However, a lot of other companies are already feeling the hit from the lock downs with industries including tourism, hospitality and retail, closing their doors and services to the public. The flow on affect from this is seeing businesses review their employment arrangements with staff, consider the reduction of staff hours and wages to prevent redundancy or termination and also get their head around their responsibilities under Fair Work and relevant industry agreements.

Businesses employing temporary sponsored visa holders such as the 457 and TSS 482 visas, will have additional complexities to navigate their way through in accordance with their sponsorship obligations and their employee's work visa conditions, prescribed by the Migration Act 1958 and Migration Regulations 1994.

In a similar manner, many temporary visa holders will join the growing number of recently unemployed Australians and with global travel bans being introduced, people are starting to worry about their immigration status and financial position.

Temporary Visa Holders in Australia

Temporary visa holders in Australia are required to comply with conditions attached to their visas and depending on the visa, a condition may require the holder to remain in full-time employment with their sponsoring employer. Non-compliance may result in visa cancellation and issues on subsequent visa applications.

With the closure of business operations forcing temporary visa holders to stop work long with potential issues regarding travel bans, compliance with their visa condition is at the forefront of their minds.

Amongst many of the topics raised, we have sought advice about the level of flexibility the Department of Home Affairs will provide visa holders and businesses in situations outside their control.

What is Being Done to Help?

Many immigration specialists and professionals, including Astra Australia Immigration, are in discussions with the peak industry body, the Migration Institute of Australia (MIA), to provide alternative measures for the Australian Government and the Department of Home Affairs to consider.

Suggestions put forward have been designed to protect and preserve the entitlements of temporary visa holders, visa applicants and sponsoring businesses and include recommendations to:

have temporary visas that are due to expire, extended until some time later in the year
introduce a visa that is specifically designed for those impacted by COVID-19 with temporary access to Medicare and no application fee
waive condition 8503 for visa holders already in Australia. Condition 8503 prevents visa holders from lodging another visa application whilst in Australia so, removing this condition would help many to avoid becoming unlawful or needing to transition to a Bridging Visa E
remove the Labour Market Testing (LMT) and Skilling Australians Fund (SAF) requirements for businesses
offer alternative arrangements for international students who have been unable to return to Australia and apply for their Graduate 485 visas (a requirement for this visa)

We will be keeping our clients and subscribers updated on developments as soon as they come to hand.

Compliance with Work Visa Conditions and Employer Sponsorship Obligations

Amongst many of the topics raised, we have also sought advice about the level of flexibility the Department of Home Affairs will provide visa holders and businesses in situations outside their control. These include:

Reduced hours for 457 and TSS 482 visa holders: Sponsored 457 and TSS 482 visa holders must comply with condition 8107 and 8607 respectively. These conditions do provide some but, limited room for temporary lay-off and leave without pay, the timeframes of which can vary from visa to visa.

Some flexibility that would allow businesses to reduce working hours and salaries to a level that still allowed them to comply with their obligations would provide the visa holder with some form of income and relief in the current climate as well as skilled talent to the employer when business picks up again.

Sponsoring businesses and 457/TSS 482 visa holders should seek advice from a trusted immigration advisor that is specific to their circumstances. A reduction in working hours and salary can have an unintentional adverse consequences on the employee's visa conditions as well as the employer's sponsorship obligations.

Cease of employment between 457/TSS 482 visa holders and sponsoring employers: The Australian Government has estimated at least one million people, including temporary visa holders could become unemployed.

If a business is forced to consider terminating an employment agreement with the TSS 482/457 visa holder, the employee is given a certain timeframe in which to either:

transfer their visa to a new sponsoring employer, or
lodge a different type of visa, or
depart Australia

In the event that neither of the above occurs within the relevant timeframe, the sponsored visa is to be cancelled. Despite a common belief amongst many migrant communities, the current legislation does not provide for an individual to remain in Australia for 28 days following the expiration or cancellation of their visa.

To maintain compliance with Australian workplace requirements, employers should also contact their employment law specialist and/or Fair Work.

Cease of employment between 186 permanent residence employees and their nominating employer: Sponsorship obligations cease once the employee transitions to Australian permanent residence however, employer obligations under Fair Work will continue. Permanent residence employees should refer to Centrelink to understand what options might be available to them for welfare assistance.

Cease of Employment for 457/TSS 482 Visa Holders - Obligation to Pay Return Travel Costs

If the 457 or 482 visa holder needs to depart Australia because their sponsorship is ending, they can ask the business sponsor to pay reasonable travel costs to return to their country of passport.

Providing the request is made in writing and in accordance with certain requirements, the sponsoring business must comply.

Financial Assistance for the Unemployed

It has been widely reported through media outlets that temporary visa holders in Australia, including New Zealand citizens who are not already considered to have the same rights as Australian permanent residents or citizens, may be granted some type of temporary financial assistance as a result of the COVID-19 virus and loss in earnings.

So far, the Australian Government have confirmed stimulus packages will become available to certain Australian permanent residents, Australian citizens, New Zealand citizens who have been living in Australia on and prior to 26 February 2001 and some Australian businesses. They are yet to confirm whether any assistance would be provided to other temporary visa holders, including New Zealand citizens who moved to Australia after 26 February 2001.

Conclusion

The Department of Home Affairs does not want individuals to become unlawful non-citizens. In response to the 2007-2008 Global Financial Crisis, the Department of Immigration made concessions to certain employer sponsorship obligations and we are hopeful that they will be implementing similar policies to meet the current challenges.

Please contact us or your trusted immigration advisor for more information regarding your visa status or business sponsorship obligations.

We will continue to provide information and updates as they are made known.

Immigration is one of the most complex pieces of Australian law. There are a number of different Australian visas with their own visa conditions and sometimes additional caveats that depend on a particular situation. Anyone providing immigration advice in Australia must be registered with the Office of the Migration Agents Registration Authority (OMARA) - their register of professionals found here.

References:

Support outlets for mental wellbeing

Travel ban announced 24 March 2020

Employer sponsorship obligations

Financial assistance announced 22 March 2020

The Australian: Coronavirus: Stranded visa holders thrown welfare lifeline and extended stay

Josie MarrMarch 25, 2020