IMMIGRATION SNAKES & LADDERS Employer Sponsored VISAS EXPLAINED B rian Kelleher R egistered Migration Agent m arn:

The role of the Migration Agent 1.Part 3 of the Migration Act Migration Agents and Immigration Assistance, Section 275 – 332H 2.A person who uses their knowledge or experience of Migration Procedure to assist an applicant for a visa, sponsor or a nominator, or a visa cancellation review applicant are required to be registered as a migration agent.

The role of the Migration agent EXEMPTIONS Lawyers providing advice about court proceedings (Immigration legal assistance) Parliamentarians and their staff Employers who intend to sponsor or advise a prospective employee on certain visa sub classes Sponsors or nominators of visa applicants or close family members The following people who provide immigration assistance in the course of their employment: (a)Diplomats or members of a consular post (b)Members of the office of an international organisation (c)Public Servants

Occupational Trainee Visas –Sub Class 442 This visa allows work based training for additional or enhanced skills in nominated occupations to be completed by eligible applicants. There are three streams of proposed occupational training that the applicant may be eligible for: (a)Practical experience or training required for registration in their occupation for employment in Australia or overseas (b)Structured workplace training to enhance the person’s existing skills in an eligible occupation

Occupational Trainee Visas –Sub Class 442 (c) Structured Workplace Training to enhance the person’s skills and promote capacity building overseas Important Criteria to Remember: The nominated occupation must appear on the Skilled Occupation List that is currently available known as the SC457 and sc442 Skilled Occupation List The Training or practical experience must be for a specified period, usually determined by apprenticeship Board or registration body. This will be evidenced by a formal letter from that body

Occupational Trainee Visas – Sub class 442 There are three applications 1. The Employer or Organisation applies to be a sponsor (a) Form 1377 (b) Fee: $ (c) Evidence to show that the sponsor is a legitimate and viable business able to take on new trainees. 1. The Sponsor nominates a position (a) Form 1378 (b) Fee: $ (c) Evidence to show that the applicant has the required experience or qualifications or permission to undertake further training 1. The Applicant applies for a visa (a) Form 147 (b) Fees: $ (c) Personal attributed of applicant must meet legislative criteria

Temporary Business Sponsorship – subclass 457  Bridge the skills gap  Work ethic – practices may be better as they have committed for a period to an employer with the potential goal of PR (Permanent Residency)  Local labour may well quit their jobs and move south for better opportunities – migrants will stay  Cost effective – already getting someone skilled = less training costs involved  Employers will be able to choose the best on offer before committing – overseas experience

Where do they Come From? How Do We Meet Them? a.Offshore recruitment – Trades, IT, Nurses, Hospitality Industry b.Working Holiday makers – Trades, IT, Nurses, Hospitality (chefs, cooks) c.Existing 457 workers looking for better opportunities

Subclass 457 – Temporary Business Sponsorship Working Holiday Eligible Passports a. Belgium b. Canada c. Republic of Cyprus d. Denmark e. Estonia f. Finland g. Germany h. Hong Kong Special Administrative Region of the proper Republic of China a. Republic of Ireland b. Italy c. Japan d. Republic of Korea e. Malta f. Netherlands g. Norway h. Sweden i. Taiwan j. The United Kingdom

Subclass 457 Employers can sponsor approved skilled workers on a temporary visa Employers can be after Australian Business Overseas Business Employers can nominate a number of positions for different occupations under the same sponsorship application

The 457 visa can employ overseas workers for a period of between one day and four years. Once they enter they can travel in and out of Australia any number of times They can also bring dependant family members who can work and study

Employer needs to be approved as an eligible sponsor a. If you operate in Australia, you must consider bench marks relating to the training of citizens and PR b. Must attest that they have a strong record or a demonstrated commitment to I. Employing local labour II. Non discriminatory employment practices c. No adverse information known about the business within the previous 3 years Training Bench marks Training Bench marks – Must demonstrate their contribution and commitment to the training of Australians by providing evidence of meeting the training bench marks

Obligations of the Employee Obligations of the Employee a. Be sponsored by an employer to fill a nominated position b. Have skills, qualifications, experience and an employment background which matches those required for the position – eg. trade may require a skills assessment c. Demonstrated English Language proficiency – IELTS at least 5 in each of the 4 test components of speaking, reading, writing and listening. Exception is when the occupation itself requires a higher level of English d. Meet character requirements e. Health requirements – health insurance

Nomination a. Position must be in your business or related business b. Be in relation to an approved occupation – Special list called Occupations for Nominations in Relation to subclass 457 c. Special dictionary supplied by the Australian Bureau of Statistics called the Australian New Zealand Standard Classification of Occupations (ANZSCO) which helps define and occupations and its tasks and duties d. English Language Requirements

Nomination Monitoring of Businesses Employers will be monitored for compliance with their sponsorship obligations a. Obligation to cooperate with inspectors b. Obligation to ensure equivalent terms and conditions of employment c. Obligation to pay travel costs to enable sponsored persons to leave Australia d. Obligation to pay costs incurred by the Commonwealth to locate and remove an unlawful non- citizen e. obligation to keep records Obligation to provide records and information to the Minister Obligation to provide information to Immigration when a certain event occurs Obligation to ensure the primary sponsored person does not work in an occupation other than an approved occupation Obligation not to recover certain costs from a primary sponsored person or secondary sponsored person

Sanctions Sanctions a. Sanctions for failing to satisfy sponsorship obligations b. Other circumstances in which the Minister may take administrative action

Market Salary Rates Must comply i. Minimum to be paid is $49, ii. This has no bearing on what the actual applicant should be paid iii. Where there is an equivalent Australian in the workplace, the market salary rate will be determined by the industrial arrangement that applies to this worker Examples of industrial arrangements include enterprise agreements, industrial awards, award conditions with over award salary rates and common law contract.

Where there is no Australian performing the work, or no applicable modern award or enterprise agreement, the employer must provide other evidence to substantiate the market salary rate Example: relevant remuneration surveys or published earnings data or evidence of what employees performing equivalent work are paid in similar workplaces.

Applying for the Visa Applying for the Visa Step 1– Employer applies to be a sponsor Step 2 – Employer nominates a position Step 3 – Employee applies for a visa

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) This visa is for employers in regional and low population areas who wish to sponsor migrants for a permanent visa to work in Australia. They are aimed at: a) Skilled workers from overseas b) Skilled temporary residents currently in Australia. They must hold a qualifying visa beforehand There is also the offshore RSMS visa, sub class 119 which can be applied from overseas.

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) The RSMS visa requires: 1. An Australian Employer 2. A skilled Employee 3. An eligible position The RSMS Process involves the Employer doing the following: 1. Nominating the position they wish to fill 2. Arranges certification by the Regional Certifying Body 3. Seeks approval of the nomination from the Department 4. Recruits the overseas worker to fill the nominated position

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Regional Certifying bodies Assist employers to fill vacancies in regional Australia Assist employers to fill vacancies in regional Australia Assesses whether the position is genuinely vacant and unable to be filled by an Australian employee Assesses whether the position is genuinely vacant and unable to be filled by an Australian employee If these requirements are met, they will certify the position provided the documentary evidence to prove certain criteria are satisfactory. If these requirements are met, they will certify the position provided the documentary evidence to prove certain criteria are satisfactory. For the Employee, they must: Accept the offer of employment and apply for the visa Accept the offer of employment and apply for the visa Meet the conditions on their visa once it has been approved Meet the conditions on their visa once it has been approved

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) The nomination must be approved before the visa is granted All areas of Australia are eligible regional areas except for: Brisbane Brisbane The Gold Coast The Gold Coast Sydney Sydney Newcastle Newcastle Wollongong Wollongong Melbourne Melbourne

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Regional Certifying Bodies have: Knowledge of the Skills shortages in their local area Knowledge of the Skills shortages in their local area Know whether a business is actively operating in their local area Know whether a business is actively operating in their local area Able to assess positions under the legislative requirements of the Scheme Able to assess positions under the legislative requirements of the Scheme

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) An Eligible Position is: 1. Located in a regional area 2. Cannot be filled by an Australian employee 3. Genuine full time vacancy 4. Available for at least 2 consecutive years 5. Requires a person with qualifications equivalent to at least an Australian Diploma level Eligibility of an Employer 1. The business must be actively and lawfully operating in regional Australia 2. The position,ust be full time and available for 2 years 3. The business requires a person with a diploma level or higher

Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Permanent Visa – Regional Sponsored Migration Scheme Visa – Subclass 857 (RSMS) Eligibility for the Nomination of the Position 1. The nomination has been approved by the relevant regional certifying body 2. The business follows all relevant Australian laws and has a satisfactory record of meeting immigration laws (if applicable) 3. The nominated position is in a business operated by the Employer 4. The position is being renumerated in accordance with relevant workplace legislation and awards

Permanent Visa and Temporary Visas – Labour Agreements Purpose of the Labour Agreements Formal Agreements to recruit overseas workers Formal Agreements to recruit overseas workers Agreements are effective for two to three years Agreements are effective for two to three years Temporary and Permanent Visas can be granted under the agreement Temporary and Permanent Visas can be granted under the agreement

Permanent Visa and Temporary Visas – Labour Agreements An employer would consider a Labour Agreement if the following exists: Occupations are genuinely in demand but are not on the approved occupations list for the sub class 457 visas, RSM sc 857/119 and are not covered under the Australian and New Zealand Standard Classification of Occupations Occupations are genuinely in demand but are not on the approved occupations list for the sub class 457 visas, RSM sc 857/119 and are not covered under the Australian and New Zealand Standard Classification of Occupations 2. Where a business recruits labour for the supply to an unrelated business and /or the hiring of labour to an unrelated businesses 3. They are a meat company

Permanent Visa and Temporary Visas – Labour Agreements An employer meeds to do the following: Request access to a Labour Agreement Request access to a Labour Agreement Negotiate and sign the Labour Agreement Negotiate and sign the Labour Agreement Nominate the positions that need to be filled Nominate the positions that need to be filled Recruit overseas skilled workers to fill the positions Recruit overseas skilled workers to fill the positions Provide information to the Australian government as part of the monitoring activities of the Labour Agreement Provide information to the Australian government as part of the monitoring activities of the Labour Agreement

Permanent Visa and Temporary Visas – Labour Agreements A Labour Agreement is most appropriate where: The organisation has demonstrated a commitment to employment and training Australians The organisation has demonstrated a commitment to employment and training Australians Evidence of a direct employer – employee relationship Evidence of a direct employer – employee relationship Evidence of ability to meet salary and training requirements Evidence of ability to meet salary and training requirements Evidence of a need to fill skilled occupations with skilled employees Evidence of a need to fill skilled occupations with skilled employees

Permanent Visa and Temporary Visas – Labour Agreements Employer eligibility: Employers need an ongoing requirement to recruit overseas skilled workers for a number of years Employers need an ongoing requirement to recruit overseas skilled workers for a number of years Evidence of efforts made to recruit from the local labour market Evidence of efforts made to recruit from the local labour market A Willingness to work with the government to improve the training and recruitment prospects of Australian workers A Willingness to work with the government to improve the training and recruitment prospects of Australian workers A record of commitment top training Australian workers A record of commitment top training Australian workers Evidence that they are lawfully operating businesses. Evidence that they are lawfully operating businesses.

Permanent Visa and Temporary Visas – Labour Agreements Employer eligibility continued: 6. A good business record showing compliance with relevant laws 6. If applicable, evidence of previous compliance with relevant laws and regulations 6. To be the direct employer of the recruited employee.

Permanent Visa and Temporary Visas – Labour Agreements Applying for a Labour Agreement: Step One: Employer requests Access to a Labour Agreement Step Two Employer Nominates the position Step Three Employee applies for the visa

1 july 2012 – Reforms to the RSMS visa 1. Labour Agreements will be absorbed into new streams within the RSMS visa 2. Age limit will be increased to Onshore and offshore distinctions will be eliminated. Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme (subclass Three new streams will comprise the RSMS subclass 187) (a) The Temporary Residence Stream: for subclass 457 visa holders who have worked for their employer for at least the last two years and the employer wants to offer them a permanent position in the same occupation (b) The Direct Entry stream is for applicants who are untested in the Australian Labour Market and have not held a subclass 457 for at least the last two years or are applying directly outside Australia (c) The Labour Agreement Stream is for applicants who are being sponsored by an employer through a highly scrutinised and negotiated labour agreement or regional migration agreement.