TSS Visa is finally here!
Temporary Skill Shortage Visa
On Sunday 18 March 2018, the government has implemented the long-awaited Subclass 482 Temporary Skill Shortage Visa (TSS). As of this date, it is no longer possible to make an application for a subclass 457 visa. Whilst the TSS visa has retained some elements of its predecessor, there are some key differences which are summarised below:
Standard Business Sponsorship:
The standard business sponsorship facility will be valid for five years unless otherwise determined by the Minister
The business needs to be a lawfully operating business
There should be no relevant adverse information against the business
Training benchmarks A and B have been abolished therefore a business wishing to become a Standard Business Sponsor will no longer be required to evidence training as part of their application.
Existing businesses can use their existing sponsorship to sponsor TSS visa holders or gain accreditation. The benefits of accreditation include priority processing of applications as well as a less stringent requirement on the visa applicant to evidence character requirements.
There are three streams available:
Short Term Stream
Medium Term Stream
Labour Agreement Stream
To sponsor a foreign national, the standard business sponsor must demonstrate the position nominated is genuine and consistent with the activities of the business. The position must be full-time, which can be evidenced by providing a contract of employment for a full-time role. Further, the application must be accompanied by mandatory Labour Market Testing, unless international trade obligations apply.
The approved sponsor must have undertaken LMT:
within 6 months before lodging the application as specified in a legislative instrument (or 12 months if application is lodged prior to 18 June 2018); or
since any redundancies or retrenchments have occurred - if any Australian workers have been made redundant or retrenched from the same or similar occupations in the business of the sponsor (or an associated entity) in the four months prior to lodgement of the application. If the sponsor or an associated entity has made any Australian citizen or permanent resident workers redundant or retrenched from positions in the nominated occupation in a business in the previous 4 months, information about these redundancies or retrenchments must be provided.
Case Officers must be satisfied that a suitably qualified and experienced Australian worker is not available to fill the nominated position. Under policy the evidence of LMT provided should have had sufficient coverage and duration to test the local labour market in order to demonstrate this. Evidence which meets all of the following criteria will generally be considered sufficient:
the nominated position has been advertised in Australia.
the advertisement was in English and included the following information:
the title, or a description, of the position;
the name of the approved sponsor or the name of the recruitment agency being used by the sponsor; and
the annual earnings for the position (unless the annual earnings will be greater than the Fair Work Income Threshold ( currently AUD 142,000).
at least two advertisements were published:
on a national recruitment website that is, a prominent or professional recruitment website that publishes advertisements for positions throughout Australia. A general classifieds website or an advertisement solely through a social media notification, such as Twitter or Instagram is not an acceptable method;
in national print media – that is, national newspapers or magazines that are published at least monthly and marketed throughout Australia;
on national radio – that is, radio programmes that are broadcast or syndicated nationally; or
if the sponsor is accredited – on the businesses' website.
If the advertisement is published on a website it is expected that the advertisement would have ‘remained live’ for at least 21 consecutive calendar days.
If the advertisement is published in print media or on radio, it is expected that applications or expressions of interest for the advertised position were accepted for at least 21 consecutive calendar days.
Advertising may have been undertaken by a third party if authorised to do so by the sponsor (for example, an associated entity or a contracted party, such as a recruitment agency) - there is no requirement that the sponsor placed the advertisement themselves.
Another significant change to nominations is the introduction of Annual Market Salary Rate (AMSR). Where the overseas worker will be paid less than AUD250,000, employers will need to demonstrate the following:
that they have determined the AMSR using the specified method, which includes providing a copy of an Enterprise Agreement or Contract of Employment for Australian worker as well as their payslips;
that the overseas worker will not be paid less than this amount (i.e. less than what an Australian worker would be paid);
that both the AMSR and the proposed salary of the overseas worker, excluding any non-monetary benefits in both cases, will be no less than the Temporary Skilled Migration Income Threshold (TSMIT).
There is now greater scope of scrutiny of AMSR evidence, including automatic refusal of nominations where the case officer is not satisfied the overseas worker is being paid AMSR and at least the TSMIT. Generic salary surveys will no longer be accepted. Where there is not an enterprise agreement, award or equivalent worker, two types of acceptable evidence will be required to evidence ASMR.
The duration of the TSS visa will be governed by the stream the sponsor chooses at the time of nomination. The sponsor will be able to choose the stream based on whether an occupation is on the Short Term Skilled Occupation List (STSOL) or Medium Term Strategic Skilled Occupation List (MTSSOL). Additional occupations are available for regional areas, these are listed on the Regional Occupation List (ROL).
As part of the visa application process, an applicant will be required to evidence at least two years of relevant work experience in addition to any tertiary qualification they may hold. The Policy appears to indicate that there is some flexibility in terms of evidencing closely related work.
The English language requirement has been amended to include a different set of requirements for the Short-Term Stream in comparison to the Medium-Term Stream. The Short-Term Stream carries a slightly lesser requirement of scoring, with an average of 5.0 in the IELTS with at least 4.5 in each band, compared to the Medium Term Stream, which requires a score of a minimum of 5.0 in each band, or equivalent results in other acceptable English tests.
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
Applicants who are sponsored in occupations which are subject to a mandatory skills assessment will be required to provide evidence of having applied for a skills assessment at the time of making a TSS visa application. Failure to provide this information will render a 482 visa application invalid.
TSS visa holders will be subject to Condition 8607 which will allow TSS visa holders to work only for their nominating employer in the occupation they were sponsored. This condition also compels TSS visa holders to commence work within 90 days of arriving to Australia. The TSS visa holder is subject to visa cancellation if they cease work for more than 60 days.
Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.