Immigration Update January 2023

Throughout the year you will also see our posts on LinkedIn, providing timely updates and thought leadership on immigration and labour shortages. Please ensure you are connected with the Mapien team on LinkedIn to receive these valuable insights.

We look forward to supporting you as we enter what is going to be a busy year with hopefully some exciting changes to the skilled migration program, in particular employer sponsored pathways.

It is no surprise that 90% of businesses expect to be affected by staffing shortages in 2023. We continue to hear from clients across a broad range of industry sectors that they are struggling to fill their vacancies. The Australian Government is focusing on improving the temporary and permanent skilled migration programs in support of industry and reduce the impacts COVID-19 had on skilled migration programs.

Here are some immigration updates from the last few months.

The Australian Government announced the introduction of pre-departure testing for COVID-19 for those travelling from Hong Kong, China and Macau to Australia. This measure was in response to the significant increase in COVID-19 infections in China. This is effective from 5 January 2023. Travellers are required to undertake a COVID-19 test within 48 hours prior to departure and show evidence of a negative test result. These arrangements are precautionary and temporary. There is no requirement at this point to provide evidence of the COVID-19 test results for the purposes of obtaining the visa.

The Department of Immigration announced in January the extension of the relaxation of the work restriction for working holiday makers. This change allows the visa holder to work with any one employer for the duration of their visa without requesting permission to work. Any work carried out before the 1^st July 2023 will not be counted towards the 6 month work limitation period. This means the visa holder from 1 July 2023 onwards may work for any employer for up to an additional 6months even if they have worked for that same employer prior to 1 July 2023.

Until 30 June 2023 all student visa holders including secondary applicants can work more than 40 hours per fortnight in any sector of the economy and work before their course of study commences. After the 30 June 2023, the number of hours will be capped again.

There are multiple current reviews underway looking at our skilled migration programs, both temporary and permanent. These provide an excellent opportunity for stakeholders to highlight what is not working and to provide constructive feedback on what could be changed to ensure Australia’s migration program returns to one that helps us retain talent. Mapien has been part of that stakeholder consultation process which will play an important role in establishing the annual migration program. Watch this space.

We have noticed (and hopefully you have too) an improvement in the processing times of the subclass 482 visa applications across the board.

There appears to be an overall improvement across skilled visa application processing. This is due to the introduction of a new priority list.

Skilled visa applications are processed in the following order of priority:

1. Visa applications in relation to a healthcare or teaching occupation.
2. For employer sponsored visas, visa applications where the applicant is nominated by an Approved sponsor with Accredited Status.
3. Visa applications in relation to an occupation to be carried out in a designated regional area.
4. For permanent and provisional visa subclasses, visa applications that count towards the migration program, excluding the Subclass 188 (Business Innovation and Investment (Provisional) visa.
5. All other visa applications.​

For all categories above, priority will be given to holders of eligible passports.

Within each category above, for provisional and permanent skilled visa applications, priority is given to visa applications where the primary applicant is located outside Australia at the time the visa application is made.​

(source: Department of Home Affairs)

The Australia/India Economic Cooperation and Trade Agreement (AIECTA) commenced on the 29 December 2022.

The result of this agreement in terms of Immigration will provide:

• 1000 Subclass 462 (first) working and holiday program visas for 18 to 31 year old Indian nationals per year
• Indian students graduating with First Class Honours Bachelor degrees in STEM including ICAT will be eligible for an extra year on post study visas (three years total)

Under the Subclass 482 visa labour market testing requirements, some trade agreements provide an exemption to the LMT requirements. For India this is not the case and employers will need to continue to meet the LMT requirements for the purposes of meeting the nomination criteria for the subclass 482. There are no exemptions to the LMT requirement for Indian passport holders.

As we are seeing a slow but steady return of the working holiday and student visa holders, combined with an increased demand for skilled overseas workers, its timely to revisit the Employer Obligations – Sanctions legislation and associated civil penalties.

As a business sponsor there are various obligations that you need to adhere to. The Employer Sanctions Legislation sits outside the standard business sponsorship framework however it applies to all employers, including those who don’t formally sponsor foreign workers. If you hire foreign workers (directly or indirectly) who hold a temporary visa, you will need to adhere to the requirements in place ensuring that foreign worker has the right to work for you or on a client site. Introduced in 2013, the legislation allows for penalties to be applied for offences which include:

• Allowing or referring an unlawful non-citizen to work
• Allowing or referring a lawful non-citizen to work in breach of a work related visa condition.

Many employers focus on the Fair Work Act and the Work Health and Safety Act, but the Employer Sanctions legislation (formally the Migration Amendment (Reform of Employer Sanctions) Act 2013) is also critical.

Sanctions overview (abf.gov.au)

With the return of working holiday visa makers, an increase in foreign workers in Australia on temporary visas and the removal of some work restrictions for student visa holders and working holiday visa makers, now is a great time to invest in training for your team on your obligations as a sponsor or an employer who hires foreign workers on temporary visas.

Does your business know what to do if you encounter a breach such as an unlawful non-citizen working on your site/office? What can you do?

A few simple steps could avoid any breaches:

• Always make sure you check the residence status and work rights for any new hire, even in cases where you are pretty sure you don’t need to – there are so many different types of visa subclasses. A standard part of the onboarding process should be requesting evidence of Australian citizenship or permanent residence, or evidence of an existing temporary visa and importantly, the associated work rights.
• If you employ temporary visa holders, keep track of their status and any change in work rights which may occur – for example, if they change visa subclass. Regular checks of their work entitlements through the Department’s Visa Entitlement Verification Online (VEVO) system are also crucial, as is keeping evidence of these.
• Contract of Employment includes the clauses the applicant must have the legal right to work in Australia to be employed and to provide notification within a certain timeframe if a change of visa status occurs.

If the Department suspects an offence has occurred, providing this evidence can help to show that an employer has taken “reasonable steps at reasonable times”.

How often does your business audit its workforce?

Ask Mapien how we can help you with an audit of your international workers.

We have been assisting our clients over the years with further education across important immigration topics, such as: visa frameworks, considerations when employing overseas workers, record keeping and VEVO requirements, TSS and ENS overview, employer obligations and international recruitment.

Now is the time to consider a refresher in these areas or if you have new staff members with little exposure to immigration and visas, contact Mapien to book in a training session which can be tailored to your business needs.

We look forward to hearing from you.

Sarah

Need prompt and practical advice?  Please contact us here and one of our Mapien immigration consultants will be in touch within 24 hours.