Abolition of 457 and Introduction of Temporary Skills Shortage (TSS) Subclass 482 Visa - Frequently Asked Questions
By Josie Marr
Monday, 19 March 2018 |
When do the Changes Come Into Effect?
The changes are effective 18 March 2018. After this date:- It is no longer possible to apply for a 457 visa;
- The TSS subclass visa replaces the 457 visa
What Happens if I Have an Outstanding 457 Application as of 18 March 2018?
457 visa applications lodged before 18 March 2018 will continue to be processed. They will be assessed as per the Migration Regulations which applied prior to this date. If a 457 nomination is lodged prior to 18 March, but there is no linked 457 lodged by this date, then the nomination will no longer be processed and a refund may be paid. How are the Requirements for a TSS Visa Different to a 457 Visa? Changes have been made to the following requirements- The TSS has 3 different streams - the Short Term, Medium Term and Labour Agreement streams
- Work Experience
- English Language Ability
- Health Requirement
- Occupations List
- Work Conditions for the Visa
- Visa Validity Period for Adult Children
- Higher Visa Application Fees
- Training requirement for sponsorship approval
- Employer Sponsorship validity and renewal process
- Market Rate Salary
- Labour Market Testing is required in most cases
- Various Nomination Requirements
What Are the TSS Streams?
Employers must nominate one of the three TSS application streams. These are as follows:1. Short Term Stream
For the short term stream:- The nominated occupation must be on the STSOL (Short Term Skilled Occupations List)
- Applicants must show that they are Genuine Temporary Entrants
- The visa is valid for either 1 or 2 years (unless an International Trade Obligation applies)
- The visa can only be renewed onshore once
2. Medium Term Stream
For the Medium Term Stream:- The occupation must be on the MLTSSL (Medium and Long Term Strategic Skills List)
- A higher English language requirement applies compared to the Short Term Stream
- The visa can be valid for 1, 2, 3 or 4 years
- The visa can be renewed without limitation and applicants may be eligible for permanent employer sponsored options
3. Labour Agreement Stream
This stream is for employers who have negotiated a labour agreement with the Australian Government.What is the Work Experience Requirement for the TSS Visa?
To be eligible for a TSS visa, the applicant must have at least 2 years of work experience. This would need to be in the nominated occupation or "related field". It was possible to apply for a 457 visa with no work experience, providing you hold a relevant qualification. This would mean that people without work experience would not be eligible for a TSS visa - for example international students. There does seem to be some flexibility in considering work experience which is not necessarily in the nominated occupation, but in a related field. If sponsored under a Labour Agreement, a waiver of the 2-year work experience requirement is possible.What are the English Requirements for the TSS Visa?
For the Short Term Stream, the English requirements are the same as for the 457 visa - that is an average of 5 in the IELTS, with no scores under 4.5 in any of the 4 bands. A range of alternative English tests are also accepted as per the 457 visa. For the Long Term Stream, the English Requirement is higher. A minimum of 5 in each band of IELTS is equivalent, and an average of 5 is not sufficient. Similar to the 457 visa, exemptions from English language testing are available for:- Passport holders from the UK, Ireland, USA, Canada and New Zealand
- People who have completed at least 5 years of study in English medium
- Intra-company transfers where the base salary is at least $96,400
- Diplomatic/consular appointments
What is the Health Requirement for the TSS Visa?
To qualify for a 457 or TSS visa, applicants must in general to show they do not have any medical conditions which are:- of public health concern; or
- would result in a significant cost to the Australian community; or
- would result in use of scarce medical or community services
- pre-existing health insurance
- financial capacity
- ability of relatives to provide the necessary care
Have there Been Any Changes to the Skilled Occupations Lists?
The structure of the list for the TSS visa has changed - we now have the following classifications:- MLTSSL: the short list of most in demand occupations. Eligible for 4 year visas, and for permanent residence options
- STSOL: longer list of occupations which are eligible for a TSS visa valid for up to 2 years
- Regional Occupations: list of occupations which are eligible for a TSS only if the position is in a regional postcode. Also eligible for the permanent RSMS visa
What is the Work Restriction on a TSS visa?
TSS Visas are subject to condition 8607. This is similar to the condition which applied to the 457 visa and broadly speaking is as follows:- The employee can only work for the nominating employer, in the occupation in which they were sponsored
- If registration, licensing or professional membership is required to work in the position, the applicant holds this
- The holder must commence work within 90 days of grant or arrival in Australia; and
- The holder is subject to cancellation if they cease work for more than 60 days
I Have an Adult Child - How Long will the TSS Visa be Valid for?
If you are including a child in your TSS application, the visa will only be valid until the child's 23rd birthday. For a 457 visa, the visa could in some case be valid after the child's 23rd birthday.What are the Fees for a TSS Visa?
The application fee depends on which stream is being applied for:- Short Term Stream: $1,150
- Medium Term Stream: $2,400
- Labour Agreement Stream: $2,400
- Large organisation (over $10 million turnover): $1,800 per year of visa validity
- Smaller organisations: $1,200 per year
Can I Use a 457 Sponsorship Approval for the TSS Program?
Yes - you can use an existing Standard Business Sponsorship to apply for TSS Nominations and Visa Applications.What is the Training Requirement for Approval as a Business Sponsor?
Sponsors no longer require to provide evidence of training of Australians in the business to be approved as a sponsor. This is because of the expected introduction of the Training Levy in the near future to replace the training obligation. However, the sponsorship obligation to provide training will continue for sponsors who have already been approved. Training will also be relevant when applying for permanent Employer Nomination Scheme visasHow Long is a TSS Sponsorship Approval Valid for?
When a Standard Business Sponsorship is granted after 18 March 2018, it will be valid for a period of 5 years in most cases. Previously, it would be valid for a lesser amount of time if the business was a start-up.How is the Sponsorship Renewal Process Changing?
For sponsors operating in Australia, a simpler streamlined process of renewing the sponsorship is available after 18 March. For overseas business sponsors, a new sponsorship application must be made each time, and the streamlined process is not available.What are the Labour Market Testing Requirements for the TSS Visa?
Labour Market Testing requires the employer to show that it has not been possible to source an employee from the Australian labour market before sponsoring for a visa. Generally, this requires providing evidence that the position has been advertised and that no suitable candidates were available. For the 457 visa, most management, professional and associate professional occupations were exempt from Labour Market Testing. For the TSS Visa, Labour Market Testing is required in most cases. The main exception is where an International Trade Obligation applies. Labour Market Testing must be conducted in the occupation within the last 12 months to meet TSS requirements - similar to the 457 requirement. From 18 June 2018, this must have been conducted within the last 6 months before application.How is Market Rate Salary Assessed for the TSS Visa?
Compared to the 457 market rate salary requirement, there are detail changes and differences in terminology but the overall effect will be similar for most employers. It is expected that minimum salary will continue to be specified for some occupations by caveats on the Skilled Occupations List instruments. The method of assessing market rate salary has been revised for the TSS Visa as follows:- If the applicant's earnings are at least $250,000, the requirement is met
- The Annual Market Salary Rate (AMSR) for the position must be at least TSMIT (Temporary Skilled Migration Income Threshold). The TSMIT is unchanged at $53,900
- The nominee's earnings must be at least AMSR
- The nominee's earnings must be at least TSMIT
- Non-monetary benefits are excluded from the above considerations, unless the Minister considers it reasonable to include them (eg where an accommodation allowance is provided and this is necessary due to a remote location for the position)
- If the Minister has information that the employment conditions for the TSS applicant are less favourable that would apply to an Australian, then the application can be refused
- If an industrial instrument applies to the Australian, the earnings as specified in the instrument
- Otherwise, payslips or an employment contract for the Australian
- If an industrial instrument would apply, the earnings as specified by the instrument
- Information from Job Outlook, remuneration surveys, advice from employer associations or unions, job advertisements.
- From a national recruitment website or from national print media
- In English
- Specify the salary arrangements for the position
What are the Changes to Nomination Requirements?
A large number of detail changes have been made to the nomination process. Some of the more important ones include:- For the 457 visa, whether the occupation was on the approved list was a time of decision requirement for the nomination and visa. As a result, if the list changed during processing, an applicant could be disadvantaged. For the TSS visa, this is a time of application requirement
- The TSS will only be available for full time positions. For the 457, part-time positions were possible, providing the base earnings were at least TSMIT
- The period of nomination must be specified and be exactly 1, 2, 3 or 4 years. We believe this is to facilitate payment of the training levy, which is based on how many years the TSS holder will be working in Australia
- Previously, the legislation did not make it clear whether an employee can pay nomination costs for a 457 visa. The new legislation specifically mentions that the sponsor must pay the nomination fees. This will be particularly significant when the Training Levy is introduced.