Employer sponsorshipi Ministerial Advisory Council
'The Ministerial Advisory Council on Skilled Migration (MACSM) is a tripartite body, compromising of Industry, unions, State and Territory government representatives and other members nominated by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. MACSM provides advice to the Minister on Australia's temporary and permanent skilled migration programs and associated matters.'27 With regard to the Council's terms of reference, MACSM advises the Minister on the following:
ii Temporary skill shortage (subclass 482) visa programme
- Policy settings to optimise the contribution of skilled migration to Australia's economy, including in regional Australia, and in attracting the best and the brightest
- The size and composition of Australia's temporary and permanent skilled migration programs
- Skill shortages in the labour market which cannot be met from the domestic labour force and domestic training and education programs
- Opportunities to reduce regulatory burdens and costs on Australian business seeking to access visa programs to fill genuine skilled vacancies
- Policies to ensure that Australian workers are afforded priority in the labour market
- The role of State and Territory governments in skilled and business migration
- The adequacy of regulatory powers of the Department of Home Affairs to ensure integration and detect and prevent practices which are inconsistent with the intent of the programs
- Strategies to ensure Australia's migration programs contribute to Australia's security, prosperity and economic recovery post COVID-19.28
The temporary skill shortage (TSS) visa allows Australian companies to nominate foreign workers in skilled occupations for up to two or four years, depending on whether the nominated occupation falls on the short-term skilled occupation list (STSOL) or the medium and long-term strategic skills list (MLTSSL). The nominated occupation must be on the STSOL or the MLTSSL with the occupation lists reviewed and updated on a six to 12-monthly basis. Nevertheless, the STSOL and the MTLSSL can be changed at any given time by the issuance of a new legislative instrument.
The introduction of the TSS programme has reduced the available pathways to employer-sponsored permanent residence. Visa holders under the short-term stream are able to renew the TSS visa once onshore for a further two years but cannot access employer-sponsored permanent residence.
The Department of Home Affairs has implemented arrangements for visa holders whose applications were lodged or approved prior to 18 April 2017. These grandfathered 457 visa holders will be able to access existing permanent visa provisions under the temporary residence transition (TRT) stream of the subclass 186 visa, applying the 'old' law, including:
- all 457 visa holders have access to 186 temporary residence transition (186 TRT) regardless of whether the occupation is on MLTSSL;
- the visa holder needs to work for the sponsor on the 457 visa for at least two years out of the previous three years before applying; and
- the visa holder must be under the age of 50 rather than the current 45 age limit (unless exempt).
Eligible overseas workers will need to lodge an application for permanent residence by 18 March 2022 (repeal date of the grandfathering instrument) to access these transitional arrangements. Visa holders of the grandfathered subclass 457 are not able to pursue subclass 186 TRT (permanent residence) if they changed employer on or after 18 March 2020 to serve their two years' qualifying period for 186 TRT.iii Occupation lists
The occupation lists, formerly known as the consolidated sponsored occupation list (CSOL) and the skilled occupation list (SOL), underpin a range of visas, including the subclass 482 visa. As of 19 April 2017, the CSOL and SOL were updated and renamed as the STSOL and the MLTSSL, and the regional occupation list, respectively.29 The current skilled occupation lists were updated on 5 October 2021. These changes included standardising the MLTSSL by making 30 occupations available to all visa subclasses. An occupation ceiling may be applied to invitations issued for selected occupation groups.
Since the pandemic, the government initially had introduced the priority migration skilled occupation list (PMSOL), which had a mere 18 occupations focusing on critical skills needed for Australia's economic recovery.30 However as of 27 July 2021, this list has grown to 44 occupations. The PMSOL is based on expert advice from the National Skills Commission and consultation with Commonwealth departments.iv Labour market testing
Labour market testing (LMT) requires that sponsors first attempt to recruit suitably qualified and experienced Australian citizens or Australian permanent residents for the position they wish to nominate under the TSS visa programme. Under the regulations, LMT is mandatory for all sponsors unless the occupation is exempt, or an international trade obligation applies. LMT must be conducted for at least 28 days and within the four months immediately before lodgement of the nomination component of the application. The evidence to support this must be provided at the time of lodgement.
A new instrument effective from 1 October 2020 makes it mandatory for the employer to advertise on Job Outlook, a government-owned recruiting website, in addition to two advertisements on other advertising platforms, for the nominated position, including the position title, required skills, name of the employer or the recruiter and salary range if annual earnings are lower than A$96,400.31
Australia uses the TSS programme to serve its international trade obligations.
However, there is no such LMT exemption based on conflicting with Australia's international trade obligations for skilled employer sponsored regional visa (SESR) subclass 494, as Australia has fulfilled its obligations under the TSS.
From 1 September 2021, there are Designated Area Migration Agreement (DAMA) labour market testing requirements. Employers seeking overseas workers under a DAMA must provide evidence of LMT when applying for a Designated Area Representative endorsement, requesting a DAMA labour agreement and at the nomination stage. This evidence must demonstrate at least two genuine advertising attempts to recruit qualified and experienced Australians.32 The department will also accept more flexible evidence of LMT from business in regional centres and other regional areas (Category 3 of the designated regional areas).33v Skilling Australians Fund (SAF) Levy
As an employer you must pay the Skilling Australians Fund (SAF) Levy, which is managed by the Department of Education, Skills and Employment. You must not pass the levy on to the visa applicant as the purpose of the levy is for employers to contribute to the broader skills development of Australians.34vi Employer nomination scheme visa (subclass 186)
The permanent employer sponsored programme is a residence visa scheme for skilled workers who are sponsored by an Australian business and can be applied for either onshore or offshore. The subclass 186 visa allows skilled applicants to work under one of three streams: the TRT stream, the direct entry stream and the labour agreement stream.TRT stream
The TRT stream is geared towards applicants who have been on a subclass 482 or subclass 457 visa and who intend to be sponsored by the same employer under the subclass 186 visa. To be eligible, applicants must have worked full time on a subclass 482 visa for at least three of the four years prior to the subclass 186 nomination application.Direct entry stream
The direct entry stream is designed for applicants who do not meet the requirements of the TRT stream or who are not yet in Australia, provided they satisfy the skill and work experience requirements.vii Subclass 491 and 494 visa applications
As stated above, the subclass 491 and 494 visas are temporary visas granted for five years introduced on 16 November 2019. The applicant is required to live and work in regional Australia for three years before transitioning to permanent residency under subclass 191. The Australian government will extend these visas by three years for visa holders impacted by the covid-19 international travel restrictions that were in place.Skilled employer sponsored regional (provisional) visa (subclass 494): employer-sponsored stream
This visa enables regional employers to address identified gaps within their region by sponsoring skilled workers when they are unable to source an appropriately skilled Australian worker. This visa allows the holder to live, work and study in a designated regional area and to apply for permanent residency after three years of regional employment.
There are three stages in obtaining this visa: standard business sponsorship, a 494-nomination application and a 494-visa application.Skilled work regional (provisional) visa (subclass 491)
This is a points-tested visa for applicants sponsored by a designated regional area of an Australian state or territory, or an eligible family member residing in a designated regional area of Australia.