What are the new measures being introduced to the subclass 457 visa?
by The FindLaw Team
The Department of Immigration and Citizenship
(the Department) has recently introduced new measures relating to the subclass 457 visa program
(the visa program), which will be introduced on 1 July 2013. The primary purpose of the visa program is to fill short to medium term skill shortages that cannot be adequately covered by Australians.
While most employers are using the visa program appropriately, the Department has recognised that some of the criteria attached to the visa are not being met by some businesses, with the visa program expanding above the national employment growth rate. Data from 2011-12 pointed to significant growth in applications from people who held working holiday maker or student visas, with many holding vocational qualifications, and in some industries, over half of the total grants related to the subclass 457 visa. From the data, the Department has concluded that some temporary visa holders are using the subclass 457 visa as a means to remain in the country, rather than supplementing the labour force in Australia.
The new measures
- genuineness criterion: the Department may refuse a nomination under the ‘genuineness criterion’ if the position does not fit within the scope of activities of the business;
- increase in the market salary exemption: the threshold has been increased from $180,000 to $250,000, with the aim of ensuring that higher paid workers are not able to undercut through the employment of overseas labour at a cheaper rate;
- removal of English language exemptions for certain positions: a number of visa holders go on to apply for permanent residency, and with the removal of the English language exemptions for certain positions, will bring the subclass 457 visa in line with other permanent Employer Sponsored programs that require a vocational English ability. However, nominated applicants with salaries greater than $92,000 will continue to be exempt from the English language requirements;
- greater regulatory powers for the Department: enhanced regulatory powers bestowed to the Department via the new measures will ensure that the working conditions of visa holders conform to Australian standards, and holders of the visa cannot be exploited, nor can they be used to undercut Australian workers;
- amendments to the existing training benchmark provisions: the amendments will bring clarification to the obligations of an employer to train Australians is ongoing and binding for the duration of their approved sponsorship, with the amendments also applicable to new businesses as well;
- holders of a subclass 457 visa cannot be on-hired to an unrelated entity: this measure will prevent a visa holder to be on-hired to an unrelated entity – unless they are sponsored under a labour agreement;
- amendments allowing the Department to refund visa application fees: in instances where an employer nomination has been withdrawn, the Department is able to refund the visa application fee under the new measures.
How will the changes affect businesses and current visa holders?
The new measures should not have a great effect on businesses and current subclass 457 visa holders if they are upholding the purpose of the visa. Additionally, the new measures also shouldn’t greatly affect future visa applicants provided they are genuine. However, after 1 July 2013, some applications may be required to provide further evidence in support of their claims.