immigation and visa | Wentworth Lawyers & Partners

Immigration and citizenship

The Australian government provides the following visas for those who want to come to Australia for various reasons. Wentworth Lawyers advise and assist people from all around the world to choose

a number of suitable visa options available for a client.

each client has his or her distinctive needs and wants for coming to Australia with their personal circumstances, whether natural or corporate personnel, are different and we cater to those differences of our clients after listening to our client's surrounding circumstances.

International Migration Outlook 2020 - Recent developments in international migration movements and policies

In 2018, the law was amended to provide greater information sharing within government by authorising the Department of Home Affairs to obtain and use tax file numbers of skilled visa applicants and visa holders for research and compliance purposes. This includes identifying and taking action against sponsors who underpay overseas workers and sponsored overseas workers who work in employment that is not approved by the Department. To protect the wages and conditions of Australians and overseas workers, the Act requires the Department to publish the register of employers sanctioned for failing to comply with their obligations to sponsored workers.
In August 2018, the Skilling Australians Fund (SAF levy on all employers sponsoring overseas skilled workers commenced.
In November 2019, the Global Talent – Independent programme was officially launched
- It is a priority visa pathway for highly skilled individuals to work and live permanently in Australia.
- Candidates for up to 5,000 permanent migration places annually.
- Candidates need to be highly skilled for work in one of the seven target sectors that have been identified as future-oriented and either obtain a salary above a certain income threshold (in 2019-20 AUD 148, 700) or be a highly-graded recent PhD or Master’s graduate.
- Candidates also need to be endorsed by a domestic nominator who has a national reputation in the same field

Visa options available in Australia to choose from for visiting and or migrating to Australia.

Visitor visas

Studying and training visas

Family and partner visas

Refugee and humanitarian visas

Other visas

Visa for the company and its employees for Intra transfer purpose

Temporary skill shortage (subclass 482) visa — sponsorship, nomination, and application

From 18 March 2018 onwards, the TSS visa has replaced the 457 visa.
The TSS is a principal visa program to sponsor foreign workers to fill skilled positions in Australia on a temporary basis.

3 steps to follow;

application by an organisation of or standard business sponsorship status
nomination of the position to be filled by applicant
individual visa application the applicant’s family
Once the sponsorship is approved, it is valid for generally 5 years. Nomination and visa applications must be lodged each time the company which is to sponsor a foreign worker.

Occupation lists

Short-Term Skilled Occupation List: current short-term shortage – 12 or 24 months
Medium to Long-Term Strategic Skills List - - high demand, high value to Australian economic growth, eligible for 4 year TSS visa with possibility of indefinite renewals and transition to PR through ENS
Regional Occupation outside Sydney, Melbourne, Brisbane, eligible for 4 year TSS visa with possibility of indefinite renewals and transition to PR through RSMS

Caveats on occupations

Nature of role/business setting for the role
Nominated base salary
Size and turnover of the nominating employer

Sponsorship criteria

The employer must demonstrate no adverse information known to business
- Indicate the number of TSS applicants the company proposes to nominate during the period approved by sponsor and
- Must not recover transfer or take an action that would result the sponsor paying costs to recruit, sponsor or nominate employees

Australian employer must demonstrate that:

it is actively and lawfully operating in Australia;
it attests in writing that it has a strong record of a demonstrated commitment to employing local labour and non-discriminatory employment practices; and
it declares in writing that it will not engage in discriminatory recruitment practices.

Overseas employer must demonstrate that:

it is an actively and lawfully operating business overseas and does not have operations in Australia;

it intends to send employees to Australia to either:

establish, or assist in the establishment of, business operations in Australia with overseas connections; or

fulfil, or assist in fulfilling, a contractual obligation.

Nomination criteria

Nominated occupation appears on occupation list
If the nominated occupation appears on Regional Occupation List – regional area of Australia
Annual market salary rate is met
Remuneration paid to visa applicant/holder are greater than the Temporary Skilled Migration Income Threshold
position nominated occupation is genuine, full-time
Engaged as employee under written contract of employment
Conducted labour market testing to confirm no suitably qualified or experienced Australian is able to fill position
Certified in writing
- Position include significant majority of the tasks nominated in the ANZSCO occupation
- The position is with the sponsoring company
- The sponsored person has qualifications and experience aligned with ANZSCO
No adverse information known to business
Applications lodged on or after 12 August 2018, the nomination is accompanied with SAD levy
Certified in writing in the nomination form whether or not to engage in conduct that contravenes of the Migration Act

Australian employer

The nominated position must be located in the sponsor’s business or an associated entity.

If the nominated occupation is on the list of occupations issued in legislative instrument to reg 2.72(13) (LIN 19/212 ), the individual can work as an independent contractor for a number of employers in addition to working for a sponsor. See Direct employment requirement and Working as a contractor on a TSS visa (below).

Overseas employer

The nominated position must be located in the business of the sponsor; or

If the nominated occupation is on the list of occupations issued under reg 2.72(13) (LIN 19/212 ), the individual can work as an independent contractor for a number of employers in addition to working for a sponsor. See Direct employment requirement and Working as a contractor on a TSS visa (below).

Skilling Australians fund levy (SAF)

TSS nominations lodged on or after 12 August 2018, the nominator pay the applicable nomination training contribution charge and replaces the requirement for employers sponsoring a worker under 457/482 visa or worker under Direct Entry Stream 186 visa
the equivalent of at least 2% of their business’ payroll in contributions to an industry training fund (training benchmark A); or
the equivalent of at least 1% of their business’ payroll on the training of Australians (training benchmark B).
for businesses that have an annual turnover of less than $10 million — $1200 per visa per year for each employee on a TSS visa; and
for businesses that have an annual turnover of more than $10 million — $1800 per visa per year for each employee on a TSS visa.

Visa application

if applying onshore, holds a substantive holds a substantive visa, or Bridging A (010) (BVA), Bridging B (020) (BVB) or Bridging C (030) (BVC) visa (note that as this is a Sch 1 criterion, it is a requirement to make a valid visa application);
if applying onshore, has substantially complied with the conditions that apply or applied to the last substantive visa held and to any subsequent Bridging visas;
has a genuine intention to perform the occupation
has not, in the previous 3 years, engaged in conduct that constitutes a contravention of subs 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Act
meets the English language requirement
has skills required to perform the occupation
has at least 2 years relevant work experience (or part-time equivalent) completed within the last 5 years.
meets health, character and other Public Interest Criteria
has adequate health insurance
is of good character by providing a police record from each jurisdiction in which they have lived for 12 months or more in the 10 years prior to the application (since turning 16).

Employer Nomination Scheme (ENS) - subclass 186 visa

ENS

Employers seeking to fill a full-time position within their organisation on a permanent basis can nominate a skilled individual from overseas
workers in Australia on a temporary basis for permanent residence
once granted, individuals are allowed to stay in Australia indefinitely although are required to apply for Resident Return visa to travel to Australia following an initial period of 5 years
ENS allows employers to nominate skilled individuals full-time within their business on a permanent basis
Consists of 2 stages:
- a nomination application;
- an individual visa application
There are 3 pathways within the visa program with different eligibility criteria and application
- Temporary Residence Transition; Temporary Residence Transition stream (TRT) — streamlined pathway for eligible subclass 457 visa holders transitioning to permanent residence.
- Direct Entry; Direct Entry stream (DE) — general pathway for individuals in Australia who do not qualify to apply under the TRT stream or who are applying from overseas
- Agreement streams: pathway for applicants sponsored by employers that have entered into a labour agreement with the Department of Home Affairs (the Department) to sponsor skilled workers for permanent residence. Labour agreements would generally be negotiated, where the nominated occupation is not included on the list of eligible occupations for the ENS or RSMS programs, or where further exemptions are required in relation to English language or the skill of the applicants.

Application process

Nomination stage – employer and the position being nominated
Visa application stage – primary applicant for a visa and any family members included in the visa application

Nomination stage ENS

Can only be lodged by Department website

Similarities between Temporary Residence Transition & Direct Entry

As part of the nomination criteria, employer must:
- Actively and lawfully operating a business in Australia
- Offer full-time position for at least 2 years
- Position is listed on the Medium and Long-term Strategic Skills List
- Salary-related criteria met
- No adverse information known about business
- Record of compliance with the laws at workplace
- Applications after 12 August 2018 must have the Skills Australian Fund levy

Temporary Residence Transition Stream additional criteria

Nominee is a primary subclass 457 visa holder or primary subclass 482 visa holder in the medium-term stream and is nominated for the same 4-digit occupation group code as the occupation that was nomination on the visa
The nominee employed full time in position which they hold a 457 visa for at least 3 years in the 4 years (Excluding unpaid leave)
Genuine need for the nominator to employ the person as paid employee
Nominating entity is current 457 or 482 sponsor
The position in nominating entity or an associated entity
Applications prior to 12 August 2018 – nominating entity has met the training requirements for business sponsorship, complied with sponsorship obligations related to training

Temporary Residence Transition stream – transitional arrangements

This applies to ENS applicants who held a valid subclass 457 visa on 18 April 2017 or lodged a 457 visa on or before 18 April 2017 and was granted
- The person employed full-time in Australia in their nomination occupation for at least 2 years in the 3 year application being made
- The person can apply their nominated occupation regardless of whether
- The person not be 45 years old but will still need to be under 50 years old at the application
- The person will need to apply for ENS before 18 March 2022 and hold a subclass 457 or 482 visa at the time of the ENS application and transitional arrangements will expire on 18 March 2022

Direct Entry Stream – additional criteria

Paid employee in a position under the nominator’s direct control
The business which is located is directly operated by nominator
The nominated occupation appears on LIN19/049 and performed in Australia
Applications prior to 12 August 2018 – the training benchmarks as prescribed were met

Agreement stream

Nomination application that have been assessed in finalising the labour agreement
No specific legislative criteria for a nomination under the agreement stream
The nomination is administrative and is approved as matter of course

Application stage – ENS

Must be lodged within 6 months of the date the nomination was approved
The nomination application must be lodged before the visa application
The applicant can be in or outside of Australia
The primary applicant must declare in the application whether or not the applicant has made a combined application with the applicant engaged in conduct (this is a contravention of the Act)
A payment for visa conduct declaration has been incorporated in the ENS/RSMS application forms

Common eligibility criteria

Have not in the previous 3 years making the application, conduct in a contravention of subs 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Migration Act
No adverse information known to the department
They are eligible any mandatory licensing or registration at the time of visa application
Meet the Character requirements and other Public Interest Criteria (PIC) and Special Return Criteria

Temporary Residence Transition stream - additional criteria

The nomination has been approved in the Temporary Residence Transition Stream
The applicant has not turned 45 unless exempt
The applicant competent in English
If required, is to perform skills necessary to the nominated occupation
The health requirement is met

Direct Entry Stream

Approved in the Direct Entry Stream
The applicant has not turned 45
The applicant has competent English
Applicant’s skills have been assessed by specified authority which they have been employed in for at least 3 years
Health requirement is met

Agreement Stream

Nomination has been approved in agreement stream
Applicant has not turned 45 at the time of application
Market salary rate requirements met
Applicant has qualifications/experience suitable to position
Health criterion met
Other requirements of labour agreement met

English language requirements

Evidence of English language ability from IELTS; TOEFL; PTE; CAE; OET(medical and health related)
Test taken 3 years before application lodged

Regardless of English language requirement exemption, functional English language skills must be demonstrated or pay the English language education charge.
Exemptions include:
- Native English speakers;
  - Temporary Residence Transition stream Only – 5 years full-time study in English in secondary or higher institution;
- Age:
  - Temporary Residence Transition Only:
    - worked under nominating employer for last 3 years under subclass 457 or 482 visa and earned $153,600 in 2020/21
    - Medical practitioners for at least 3 years under subclass 457 or 482 visa and 2 years in regional Australia
    - Researchers, scientists levels 1 and 2
    - Senior academics
  - Direct Entry Stream:
    - Subclass 444 – special category visa for those from New Zealand
- Skill:
  - Science applicants
  - Academic applicants
  - Subclass 444/461 worker.

Employer Sponsored Permanent Residence Program can be nominated by:

an individual;
a partnership;
a body politic (Commonwealth and state/territory government departments and agencies, statutory authorities established under Commonwealth or state/territory legislation and other quasi-government organisations);
a body corporate (companies incorporated under the Corporations Act 2001 (Cth) and associations incorporated under relevant state/territory legislation); or
an unincorporated association.

Business entities may operate under a range of organisational or business structures including:

sole trader;
partnership;
proprietary company;
public company;
government department;
statutory authority; and
not-for-profit organisations.

Active and lawful operation of business

for an Australian Business Number (ABN);
for Australian Company Number (ACN) or Australian Registered Body Number (ARBN) with the Australian Securities and Investment Commission (ASIC); and
of the business (or trading) name.

Salary related

applicants meet salary-related criteria
subreg 2.72(15) and (16), which relate to meeting the Annual Market Salary Rate (AMSR) and Temporary Skilled Migration Income Threshold (TSMIT) in the TSS visa program.

Temporary Residence Transition Stream – 4 year employment

only primary applicants granted 457 or 482 visa under standard business sponsorship can be nominated under TRT stream
ENS nominator must be last entity that nominated the individual for subclass 457/472 visa (current standard business sponsor)

Associated entity:

the associate and the principal are related bodies corporate (that is one is a subsidiary of another or they are both subsidiaries of the same company);
the principal controls the associate;
the associate controls the principal, and the operations, resources or affairs of the principal are material to the associate;
the associate has a qualifying investment in the principal, significant influence over the principal, and the interest is material to the associate; or
an entity (the “third entity”) controls both the principal and the associate, and the operations, resources or affairs of the principal and the associate are both material to the third entity.

Skilling Australians Fund levy

for ENS nominations lodge after 12 August 2018, the nominator must pay the applicable nomination training contribution charge (SAF) at the time of lodgement
the nomination training contribution charge replaces requirements of:
- the equivalent of at least 2% of their business’ payroll in contributions to an industry training fund (training benchmark A); or
- the equivalent of at least 1% of their business’ payroll on the training of Australians (training benchmark B).
the payment of the nomination training contribution charge offsets SAF

Adverse information

immigration;
discrimination;
industrial relations;
occupational health and safety; and
taxation.

DE Stream – employment in the nominated occupation for 3 years/skills assessment

does not have to be continuous 3 years or before the visa application was made
must be full-time
can claim both Australian and offshore work experience
unemployment/extended leave should not be included
previous employment must be same level of skill as occupation and as such the position claimed towards meeting 3 years of employment must be the same or closely related to the tasks of the nominated position
applicants must provide detailed employment references including list of tasks and duties.