COVID-19 and Australian Immigration
@gabrielvdz
Throughout the last 6 months, the Australian Government introduced a number of changes to its immigration policy, addressing the fallout from novel coronavirus (COVID-19) felt by business sponsors and temporary visa holders trapped both inside and outside Australia.
We recap those changes as they currently still stand as of the date of this publication.
Priority Processing of Visa Applications
As part of Australia’s recovery efforts, the Department of Home Affairs (the Department) identified a range of occupations within the health care, IT and construction industries to create a Priority Migration Skilled Occupation List (PMSOL).
Australian employers nominating employees in a PMSOL occupation will be given priority processing and their nominated overseas visa applicants will be eligible for a travel exemption. It’s also important to note that the 14-day quarantine requirements upon arrival will still apply at the visa holder’s expense.
The visa categories these provisions apply to are:
Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa
Subclass 187 - Regional Sponsored Migration Scheme (RSMS)
Labour Market Testing Requirements Strengthened
TSS 482 and Skilled Employer Sponsored Regional 494 Nominations
In September 2020, the Department introduced an additional step to be addressed as part of the labour market testing requirement. Unless exempt, employers must advertise the nominated position on the Jobactive website, in addition to two other forums with a national reach. This is a slight but, fundamental change from the employer having to advertise on only two national forums of their choosing.
Sponsoring employers should be aware that once a job advert has been posted to Jobactive, it may take some time to go live. This is important to understand when a critical deadline is approaching becaue the adverts must be live for a minimum period of 28 days before the nomination application can be lodged. Once the advert has been posted, sponsoring employers are urged to check and ensure it is live to accurately determine when the minimum advertising period ends.
The new labour market testing requirement applies to all TSS 482 and Skilled Employer Sponsored Regional 494 nomination applications lodged on or after 1 October 2020 so, it is important that sponsoring employers check their applications before lodgement. Labour market testing is quite an intricate process to manage and it must be met at the time the application is submitted. Any accidental step or misunderstanding of the format and criteria will result in instant refusal of the nomination application with no option to remedy the situation and without a refund of the application fee or Skilling Australians Fund contribution.
*UPDATE 9 OCT 2020: This requirement has (once again) changed in Legislative Instrument. The requirements, as initially intended, require a minimum of three adverts to be running for no less 28 days, before the Nomination is lodged. At least one of these adverts must be on Jobactive.
*UPDATE 1 OCT 2020: The relevant Legislative Instrument has been amended and reverted back to at least two forms of advertising, with a national reach, being required. One of those forums must still be on the Jobactive website.
For these reasons, we strongly recommend contacting us to discuss before lodging the application.
ENS 186 and RSMS 187 Nominations
Labour Market Testing has not been a legislative requirement for these permanent residence applications however, there are times when employers are recommended to complete this process as a way of demonstrating that their nominated position is genuine. Unlike the above, there is no specific criteria for the labour market testing activities to meet.
However, in a recent email to Registered Migration Agents the Department stated that they “expect” the labour market testing requirements, including the latest addition, to be demonstrated in ENS and RSMS nomination applications lodged from 1 October 2020 onwards.
Our industry body, the Migration Institute of Australia, has sought further clarification on how this is expected to work without a legislative basis in place and within both the Temporary Residence Transition and Direct Entry streams.
482 and 457 Temporary Visa Holders – Reduced Hours
Since March 2020, COVID-19 has forced many Australian businesses to close or reduce the scale of their operations. In turn, this has affected job security for a wide range of Australian and non-Australian employees particularly, employer-sponsored TSS 482 and Temporary Work (Skilled) 457 visa holders.
In an announcement made on 4 April 2020, the Australian Government stated that 482 and 457 visa holders will not be in breach of their usual visa conditions if their working hours had to be reduced to meet the needs of the sponsoring employer responding to COVID-19. While this provides some with minor relief, sponsoring employers must still make sure:
They do not reduce the 482 or 457 visa holder’s pro-rata hourly rate as approved in the original nomination application
The tasks and duties of the 482 or 457 visa holder remain consistent with the nominated occupation
These provisions are not applied to those sponsored under a Labour Agreement
There is a written agreement in place between them and their sponsored 482 and 457 visa holders
Some important key points to remember when considering a business, position or terms and conditions restructure:
482 and 457 visa holders cannot change their fundamental role and responsibilities for more than 60 days without being approved by the Department (by way of formal application)
482 and 457 visa holders cannot work for another business, unless that business is deemed an ‘associated entity’ under Section 50AAA of the Corporations Act, without first being approved by the Department (by way of formal application)
482 and 457 visa holders may take periods of Leave Without Pay but, everyone is urged to seek guidance from both your industrial relations advisor and Registered Migration Agent to ensure compliance with both workplace and immigration laws
482 and 457 visa holders may be stood down temporarily but, not laid off with a view to re-employ unless the potential consequences (involving visa cancellation) are fully understood
Restructuring a business, a nominated position, or the terms and conditions can be complicated when it comes to sponsored 482 and 457 visa holders where employer sponsorship obligations and visa conditions must be maintained.
Before making your next step in this regard, please contact us to discuss further.
485 Graduate (Post-Study) Temporary Visa
On 20 July 2020, the Australian Government responded to concerns that many international students were at a disadvantage when looking to apply for the 485 Graduate visa, by providing some relief to those stuck overseas for indefinite periods. In summary:
Student visa holders caught offshore as a result of COVID-19 restrictions, and who continued their studies online, may count that study period toward the 485 Australian Study Requirement
Student visa holders who completed their studies but were unable to return to Australia to lodge their 485 Graduate visa, due to COVID-19 restrictions, will now be eligible to apply from outside Australia
International students who were caught offshore and unable to return to complete their studies before their visa expired, due to COVID-19 restrictions, were able to lodge another student visa free of charge – to be eligible, students must have held their visas on or after 1 February 2020
Subsequently, on 19 September 2020, the Migration Amendment was introduced allowing 485 applicants to be inside or outside Australia for the grant of their 485 visa. This is extended to those who were able to lodge their 485 visa before departing Australia but, later found themselves locked out due to the COVID-19 travel restrictions. If successful, the 485 visa will be valid from the date of entry to Australia instead of date of grant.
The recent Amendment also provides fundamental changes that permits 485 applicants, who were outside Australia during all or part of 1 February 2020 to 19 September 2020, to have up to 12 months from the date they complete their course to then lodge their 485 application. Furthermore, these applicants will not need to have held a student visa within the 6 months prior to lodgement.
The underpinning legislative framework does not take into consideration the impact of an unforeseen global pandemic and without the Migration Amendment would have seen many students forfeit their eligibility to apply for the 485 Graduate visa. These concessions will be welcomed by the international student community who, as part of the student visa program, invest over $3.6bil into Australia’s economy.
These concessions are in place as of 1 February 2020 with no end date yet in effect.
General Skilled Migration
Over the years, many migrants and temporary visa holders have kept a close eye on the Department’s SkillSelect data which has been posted to their website, generally, each month. The information has been useful in understanding the number of invitations issued to certain occupations and visa types however, this information has become less transparent and less so since the beginning of 2020.
Tracking these trends have become much trickier for those wanting to understand if they have a reasonable chance of securing an invitation to apply for a General Skilled Migration visa before their current visa expires. This has been compounded by a combination of international border closures and the Government’s delay in releasing the 2020 Budget (set for Oct), and may mean that there will be no substantial increase to the number of invitations issued over the next 9 months.
189 Skilled Independent (NZ stream) Visa
In July, the Australian Government announced that the income eligibility requirement for the 189 (NZ stream) visa would change from having a taxable income no less than $53,900 for at least 4 of the last 5 financial years prior to application. Instead, that taxable income would need to be met for at least 3 of the last 5 financial years.
The details provided in the July 2020 Economic and Fiscal Update are not quite clear. Our industry body, the Migration Institute of Australia, have sought clarification from the Department.
408 Visa – Australian Government Endorsed Events – COVID-19
In April this year, the Australian Government announced that the COVID-19 pandemic would be classified as an Australian Government Endorsed Event (AGEE) for the purpose of a 408 visa.
It was introduced to help those in Australia on expiring visas, unable to depart the country due to COVID-19 travel restrictions, and either don’t have other visa options or work in a critical sector.
The application is free of charge.
To first qualify for this visa applicants must:
Have a visa that is due to expire in less than 28 days, or held a visa that expired less than 28 days prior to application
Demonstrate they have no other visa options for them, or work in a critical sector that can’t be filled by an Australian citizen or Australian permanent resident
887 Skilled Regional (Permanent) visa
Skilled Regional Provisional 489, Skilled Regional Sponsored 475 and 487, Skilled Designated Area Sponsored 496 and Skilled Independent Regional 495 visa holders (including those whose 489, 475, 487, 496 and 495 visas expired within the concession period) may now transition to the 887 Skilled Regional permanent residence visa by lodging a visa application while they are inside or outside Australia. Furthermore, they may:
Count 6 months of time spent overseas toward the 2-year residence requirement, and
Meet the work requirement if they’ve worked only 9 months in a regional area of Australia. The 887 application must be lodged no more than 3 months following the end of the concession period
The concession period started on 1 February 2020 with no end date yet in effect.
188 Business Innovation and Investment (Provisional) visa
188 Business Innovation and Investment visas granted prior to 1 July 2019, which have since expired, may apply for a 188 Business Innovation Extension stream providing it is lodged no more than 3 months following the end of the concession period.
Similarly, Extension stream visas granted prior to 1 July 2019 may also apply for a second Extension stream visa providing it is lodged no more than 3 months following the end of the concession period.
The concession period started on 1 February 2020 with no end date yet in effect.
888 Business Innovation and Investment (Permanent) visa
888 visa holders whose visa expired during the concession period will now be able to apply for the 888 visa providing it is lodged no more than 3 months following the end of the concession period.
The concession period started on 1 February 2020 with no end date yet in effect.
Conclusion
As the Australian Government continues to respond to this dynamic environment they are also quick to advise that these provisions will remain under regular review and could be subject to further changes made with little or no warning.
We are aware of many lay forums on social media where migrants are sharing their experiences to help others. While this can be useful it is important to understand that immigration is already one of the most complex pieces of Australian law so, in light of this pandemic and ever-changing environment, we strongly recommend you seek expert advice and guidance from an experienced Registered Migration Agent before taking any steps regarding your immigration status.
Contact us today to find out how the COVID-19 restrictions and the Government’s decisions will impact you.