TSS (previously the 457) visa

As a news flash, the previous Skilled Occupation List ( SOL) has been replaced by the new Medium to Long Term Strategic Skills List ( MLTSSL) and the previous secondary Consolidated Sponsored Occupation List ( CSOL) has been replaced by the Short Term Skilled Occupation List ( STSOL).

Some occupations have been removed from the MLTSSL but the greatest impact is in relation to TSS visas . The TSS visa program been split into 2 streams , viz occupations on the MLTSSL – up to 4 years + a pathway to permanent residence and occupations on the STSOL only, which are restricted to 2 year visas + 2 years extension only with no PR pathway.

New SC 482 (TSS) occupation list setting out 4 year visas with PR pathway and 2 years + 2 year ext only

The sub class SC482 – to be referred as the Temporary Skill Shortage (TSS) visa – temporary work visa program (TSS visa program) enables Australian businesses (and in some cases overseas companies with local offices,) the opportunity as a Standard Business Sponsor to source and engage overseas skilled staff (from outside Australia or at times inside Australia if on a qualifying visa), on a sponsored visa to work in their businesses where there are existing and increasing skill shortages in occupations.

This page is currently being revised for ongoing  changes. The 457 temporary visa program underwent dramatic change in March 2018 when the SC 457  visa was re-named the 482 Temporary Skill Shortage (TSS) visa. Sponsorship aspects will continue largely the same until March 2018 (or a date to be advised) when a series of additional levies will be imposed upon employees wishing to sponsor overseas workers. More on this will be advised when the nature of the changes become clearer.

STOP PRESS: CURRENT PROCESSING TIME-LINE

Pre-existing 457 visa applicants are experiencing longer-than-usual processing times.

Employers without accredited sponsorship status are experiencing an increase in average processing times for 457 visa applications. According to DIBP figures, the department is finalising its assessment of 75 per cent of Subclass 457 applications within five months from the date an application is lodged. Some 90 per cent are being finalised within 10 months. It is currently not uncommon for Subclass 457 applicants to wait at least three months before their application is assigned to a case officer for assessment.

Employers may need to adjust start dates and timelines based on current processing times and are encouraged to take the processing times into consideration, especially for positions that need to be filled before March 2018.

The TSS visa program is a 3 stage procedure for new employer sponsors;

First stage: the employer must be approved as a Standard Business Sponsor (SBS) by showing that it is

  • Lawfully operating;
  • Has the capacity to sponsor;
  • Has met mandatory Labour market testing requirement  – unless an international trade obligation
    applies. Employers will need to demonstrate their efforts to find a suitably qualified Australian citizen before
    they can seek to employ an overseas worker on a temporary basis; and
  • That it meets critical criteria including an obligation to train local staff including meeting 1% (Training Benchmark B -with local employees) or 2% (Training Benchmark A- if they have no local workers) of their payroll spend, (including super)  per year from the anniversary of the sponsorship grant (see training benchmarks below).

This training benchmark system will be replaced with the new Skilling Australians Fund (SAF) involving payment of training levies in advance at nomination time based upon

  • size of the sponsoring entity (under S10M -$1200 per applicant & over $10M – $1800 per applicant); and
  • number of years a nominated worker is nominated for and payable for the whole period in advance.

Second stage: the employer must nominate the ANZSCO position from either the MLTSSL or the STSOL , they must pay the nominee ‘market’ salary (which can be no less than the TSMIT -see below), and must identify skills and responsibilities of the position and pay the relevant SAF levies ( see above); and

Third (final) stage: the TSS visa applicant’s skills must be matched with the nominated ANZSCO occupation.The job title is often different from the nominated occupation.

This stage also includes meeting health and character requrements as part of the new changes.

Application fees have also increased.

After SBS approval

Once a an employer has been approved to sponsor, it must now confirm the number of new TSS temporary nomination for the life of its sponsorship depending on the approval given:

  • 6 years (for accredited sponsors) and stream-lined renewals and processing of nominations; or,
  • 5 years for an SBS.

The ability to sponsor will last the length of the sponsorship approval or until the number of nominated positions runs out – whichever comes first.

After approval of the sponsorship, the usual procedure is; nomination of position and visa approval for visa periods up to 4 years, unless the nominee already has a 457 visa. If so, only a nomination will be required for the balance of the existing 457 visa.

‘Self Sponsorship’ for a TSS visa

We often receive queries from persons wishing to know about ‘self sponsorship’ for a TSS visa. There is however no such thing as ‘self sponsorship’. The sponsorship regulations require an employer- employee relationship, so a sole trader cannot sponsor himself as there will be no separate legal relationship between them. What is required is that a separate legal relationship must be established between themselves and the sponsor. A company and a partnership can be a sponsor as they are both a separate legal entity and a sole trader can sponsor other workers if the employer- employee relationship exists.

ALERT: Recent change of policy

The Department of Home Affairs (DHA) has made changes to its previous 457 (Temporary Work) visa policy (457 policy) that effectively means that self-sponsorship applications under the 457 temporary work visa program are likely to be refused on “genuineness” grounds by the Department.

The DHA’s previous 457 policy states that “The [457] program is not intended to be used for non-citizens to establish a business in Australia and self-sponsor themselves; there are other visa pathways available for such purposes.”

Additionally, as part of the nomination application for a TSS visa, the nominating business is now required to submit information to the DHA such as information about the identity of the shareholders and directors of the business.

Accordingly, it is likely that if a TSS visa applicant (or a related party e.g. spouse) owns or controls an Australian business (e.g. is a shareholder or director) that is the nominating business for that TSS visa applicant, their TSS nomination application and/or TSS visa application will come under much closer examination and may well be refused.

However,it is important to note that this change concerns policy, not law and the DIBP does not explicitly prohibit self-sponsorship, but questions whether the position is genuinely required, or whether it was created for the purpose of securing a visa for the applicant. If applicants and sponsors can provide substantial and compelling evidence, as well as comprehensive written submissions to show why the business needs the particular role within the company, this may prove the position is indeed genuine.

In the past self-sponsorship cases have been approved on appeal at Tribunal level.These cases may still succeed at Administrative Appeals Tribunal (AAT) and in the courts  subsequent to this policy change, however a case would have to be very strong and well prepared to do so.

Post March 2018  changes

Signet has assisted self sponsored applicants to a successful outcome largely prior to this policy shift and up-coming changes, but since labour market testing (LMT) will be required for all TSS  visas,  it appears there will be little room for this technique given the clear personal connection evident in self-sponsorship..

For more information on Employer sponsors, Temporary visa applicants or Labour agreements please click on the text to take you to the appropriate page.