“New policy changes to sponsoring 457 workers”

(c) Lisa Qiu Coleman Greig Lawyers

New policy changes under the current Coalition government in relation to sponsoring skilled workers, took effect on 1 July 2016. The uncertainty over the outcome of the recent election leaves us with little comfort of what’s to come in the area of employment and migration, and whether there will be further changes.

In recent times, the focus on immigrants has shifted (slightly) away from Australia’s treatment of its asylum seekers, to exposing the vast numbers of immigrants employed in Australia on subclass 457 visas and other skilled working visas. A recent ABC headline phrased the issue as “corruption and widespread rorting ‘undermining Australia’s immigration programs’.”

The article states that while the government has been focused on asylum seekers and “stopping the boats,” many immigrants have taken advantage of this and have been able to obtain skilled 457 visas on the basis of fraudulent and misleading information supplied to the Department of Immigration and Border Protection, and that this has been made possible as a result of unethical and dishonest practices by the migrating employee, sponsoring employer and migration agents.

The Labor Party has promised if elected, to crack down on the exploitation of the skilled workers migration program and on the exploitation of migrant workers themselves, by, amongst other things, establishing an enhanced Advisory Council on Skilled Migration as an independent statutory body tasked to monitor skilled visa programmes and compliance with the program by migrants and sponsoring employers. A Shorten Labor Government will also introduce more rigorous evidentiary requirements for labour market testing, a requirement aimed at ensuring that employers have tested the Australian market for suitable employees, before making the decision to employ a skilled worker from overseas.

Under the current government, the Coalition has also taken steps to strengthen the skilled migrant program by the Department releasing new policies that apply to the 457 program on 1 July, 2016.

The 1 July changes

The changes come in the form of more stringent requirements that apply to employers wishing to sponsor and nominate skilled migrants. The new policies have an increased focus on the “genuineness” requirement. The genuineness requirement requires employers to be able to demonstrate to the Department that there is a position that exists within the business, that requires the skills of the migrating employee, and that the Australian labour market has been adequately tested to ensure that there are no suitably qualified Australian employees. The increased focus on the genuineness requirement aims to tackle situations whereby a nominated position may have been created to secure a migration outcome, in circumstances where the need for a skilled migrant is not genuine.

The new guidelines also assist Department officials in being able to pick out which nomination applications might not be genuine by providing certain “flags” that may suggest a fraudulent nomination. These flags include:

There is information to suggest the nominated position was created in order to assist a family member to come to Australia
There is information to suggest the tasks of the position don’t align with the tasks of the nominated position described in the Australian and New Zealand Standard Classification of Occupations (which describes all occupations in the Australian and NZ work forces)
The nominated position is inconsistent with the nature or size of the business.
Alongside new measures to prevent exploitation of the 457 program, there were also new measures introduced on 1 July to speed up the process for employers who have a history of good dealings with the Department. Such employers are classified as “Accredited Sponsors.”

Accredited Sponsors have satisfied certain requirements, such as having at least $4 million annual turnover for the last three years, having been an active 457 sponsor for at least three years and having at least 75% of their workforce in Australia comprising of Australian workers. Once a sponsor becomes an Accredited Sponsor, the sponsorship is valid for six years (as opposed to five years for a standard business sponsor) and they receive priority processing for visa and nomination applications.


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