While the employer-sponsored visa is still an option for Australian businesses seeking to sponsor workers for either a temporary or permanent position, changes to requirements and policy guidelines implemented in a post-COVID economic climate mean that the Australian Government will carefully assess that a genuine need exists for an overseas employee to fill the position. This has resulted in some important changes to applications for Temporary and Permanent Employer-Sponsored Visas.
1. Changes to Labour Market Testing requirements for the TSS 482 visa
A higher standard of Labour Market Testing is now in force with employers required to place 3 national job advertisements for the position they intend to sponsor, including one specifically being placed on the Australian Government website Job Active. The advertising must be completed before an offer of employment is made or an application to nominate an overseas worker and meet all the prescribed advertising requirements.
Where an employer lodges a Subclass 482 Nomination Application without having completed the requisite advertising, the 482 Nomination Application will be refused and the Skilling Australians Fund levy forfeited. If a business is sponsoring a person for 4 years this could be a cost to the business between $4,800.00 to $7,200.00. There are strict refund provisions in the migration law and failure to complete Labour Market Testing in the manner required is not one of the reasons for a refund. The refusal of a 482 Nomination can also have adverse consequences for the 482 Visa Applicant who may have a pending visa application.
2. Transition from 457/482 to ENS Australian Permanent Residence – New policy on advertising the position
Unlike temporary employer-sponsored visas such as the 482 TSS visa, there are no Labour Market Testing provisions in the Migration legislation specific to the Subclass 186 Employer Nomination Scheme visa applicable to Permanent Residence Employer Sponsorship. However, the business must demonstrate that the need to employ an overseas worker in the position is ‘genuine’ and under this guise, new policy guidelines include an assessment as to whether the employer has sought to find an Australian worker for the position, such as through advertising the vacancy on the Government’s Jobactive website or through other national advertisements.
3. COVID-19 concession for unpaid leave or reduced hours when applying from 457/482 TSS to PR
In response to many temporary skilled workers on 457 or 482 TSS visas being stood down due to COVID-19, arrangements have been implemented to ensure that these temporary changes to employment arrangements do not impact a 457/TSS visa holders pathway to Employer-Sponsored Permanent Residence under the Temporary Transition Pathway.
A COVID-19 reduced work period or period of unpaid leave that occurred during the period from 1 February 2020, can be counted towards the requirement to have worked 3 years in the past 4 years (or 2 years in the past 3 years if subject to transitional arrangements) under the Temporary Transition Stream for the Subclass 186 Employer Nomination Scheme visa program. Employment arrangements must meet certain requirements to be eligible for the COVID-19 concession such as the temporary visa holder having remained employed by the nominator during the specified time. The COVID-19 concession for the 186 Employer Nomination Scheme visa will assist visa applicants who were on unpaid leave or on reduced hours due to the impact of COVID-19. This was initially the subject of a Ministerial announcement at the beginning of the pandemic but has since been included in a legislative instrument on 24 November 2020 giving much-needed certainty to temporary visa holders transitioning from the 457 or 482 TSS visa to PR.
