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Another successful Federal Circuit Court Appeal
GMH Legal recently succeeded in an immigration law appeal before the Federal Circuit Court. The case involved an appeal of a student visa cancellation, which was eventually found to be affected by jurisdictional error in the decision of preceding Tribunal. Facts Our client was an international student enrolle...
Australia is proposing lifetime ban for boat asylum seekers to Australia
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ICAO – Machine Readable Passports
Palestinian who are issued with Travel Documents, or Sudanese and Bangladeshi nationals, as well as citizens of some African nations that have not upgraded their passports to Machine Readable Passports will not be able to travel internationally as of 24 November 2015. This is because the International Civil ...
Discussion Paper: Community Support Programme
15 July 2015 Assistant Secretary Citizenship and Humanitarian Policy Branch Department of Immigration and Border Protection PO Box 25 BELCONNEN ACT 2616 Dear Sir/Madam, Discussion Paper: Community Support Programme Please find enclosed a submission to the Department of Immigration and Bor...
VISAS EMPLOYER SPONSORED MIGRATION
Australia is currently facing major skill shortages in the areas of Information Technology, Medicine, Engineering, various trade occupations and many more.
Many employers naturally seek to fill these shortages through the Employer Nominated Scheme (ENS) by employing qualified and experienced overseas employees in cases where suitable applicants cannot be found in the Australia labour market.
We can help you if:
- You are a company who is looking to sponsor someone to work for you; or
- You are an applicant who will be sponsored by a company.
We can assist you in the following visa applications:
- Temporary Business (Subclass 457) Visa.
- Employer Nomination (Scheme 186) Visa.
We will ensure that your application is lodged within the quickest possible processing time. Our migration lawyers are thoroughly familiar with all the recent changes to the ENS and will guide you through the process from start to finish.
SUBCLASS 457 VISA
The Temporary Work (Skilled) visa (subclass 457) allows skilled workers to come to Australia and work for an approved business for up to four years on a temporary visa. To qualify for a subclass 457 visa, applicants must have an employer who is willing to sponsor them.
There are three steps in the visa application process:
Employers must seek and obtain approval to sponsor and recruit overseas workers. A business will be approved for a specified number of overseas workers over a 3 year period.
Employers must nominate each of the positions they wish to fill with an overseas worker. The nomination must relate to an occupation which meets a minimum skills threshold covering managerial, professional, associate professional and trade occupations. The nominated position must also be paid a minimum salary level as specified in a Gazette Notice.
3. Visa Application
The overseas workers identified to fill the vacancy must apply for a subclass 457 visa to enter and remain in Australia. The applicant must demonstrate they have skills to match the nominated position and must be offered employment at not less than the salary indicated in the nomination application.
The applicant is also required to satisfy certain health and character requirements to meet the subclass 457 visa criteria.
This visa allows you to:
- work in Australia for up to four years
- bring your family to work or study in Australia
- travel in and out of Australia as often as you want.
EMPLOYER NOMINATION SCHEME (SUBCLASS 186)
The subclass 186 Employer Nomination Scheme Visa is a permanent visa available to skilled workers who are nominated by an Australian employer who conduct a business that is not located in regional Australia.
To sponsor an employee in the Employer Nomination Scheme, the employer must:
- be actively and lawfully operating a business in Australia;
- have a genuine need for a paid employee to fill a position in their business;
- follow all relevant Australian laws and have a satisfactory record of meeting immigration laws (if applicable);
- have a current training strategy for existing Australian employees, or if a newly established business, have a training plan for future training of Australian employees;
- provide the employee with an offer of permanent employment.
Employees and prospective employees can be nominated under 3 streams which are the:
- Temporary Residence Transition Stream;
- Direct Entry Stream; and
- Labour Agreement stream.
TEMPORARY RESIDENCY TRANSITION (ENS)
This stream is available to employees that have been working in the nominating employer’s business in Australia for at least 2 years while holding a subclass 457 visa and their employer wishes to offer them a permanent position in that occupation for a 2 year period.
Visa applicants who are eligible to apply through this stream will need to meet key visa criteria including, though not limited to:
- being less than 50 years of age (unless exempt); and
- having English language proficiency of at least five in each of the four components of the International English Language Test Score (IELTS) test (unless exempt).
These applicants will not need to have their skills and qualifications assessed for the permanent visa because of their prior employment and continuing employer sponsorship. There are certain waivers to the age and English requirement but they are very limited and should be advised on a case by case basis.
Employers wishing to nominate subclass 457 visa holders who they are currently sponsoring will need to meet the following requirements:
- The job or position being nominated for permanent residence is consistent with the position that the person held while on their subclass 457 visa;
- The position will continue to be available to the prospective migrant for at least two years;
- The terms and conditions of employment are the same as any that would apply to an Australian Citizen;
- The prospective migrant will be paid the ‘market rate’. That is, the nominee will be paid at least as much as an Australian employed in the same position I the same location; and
- The employer has met, or continues to meet, the subclass 457 training requirements.
DIRECT ENTRY STREAM (ENS)
This is for visa applicants outside Australia or who are in Australia but not able to apply under the Temporary Residence Transition stream.
Employers who apply will need to demonstrate the following:
- The business is actively and lawfully operating in Australia;
- The position is full-time and available to the prospective migrant for at least 2 years;
- The nominated occupation is on the new consolidated sponsored occupation list;
- The prospective migrant will be paid the “market rate”. That is, the nominee will be paid at least as much as an Australian employed in the same location; and
- The employer provides training to Australians.
Visa applicants who are eligible to apply through this stream will need to meet key visa criteria including:
- Being less than 50 years of age (unless exempt);
- Having English language proficiency of at least six in each of the four components of the International English Language Test Score (IELTS) test (unless exempt);
- Providing a skills assessment; and
- having at least 3 years of relevant experience.
LABOUR AGREEMENT STREAM (ENS)
This is for applicants sponsored by an employer through a tailored and negotiated labour agreement or regional migration agreement.
What does the subclass 186 Visa Let me do?
The subclass 186 visa allows you and any dependent family members included in your visa application to live as permanent residents in Australia.
Once you are an Australian permanent resident you can:
- live and work in Australia on a permanent basis;
- study in Australia at school or university;
- receive subsidised healthcare through Medicare and the Pharmaceutical Benefits Scheme (PBS);
- access certain social security payments;
- be eligible for Australian citizenship; and
- further sponsor people for permanent residence.
REGIONAL SPONSORED MIGRATION SCHEME (SUBCLASS 187)
The subclass 187 stream Regional Sponsored Migration Scheme visa is similar to the subclass 186 but is a stream for skilled workers from outside Australia or skilled temporary residents who currently live and work in Australia and will be employed in regional Australia.
To apply for this visa, you must:
- have the relevant qualifications and/or work experience for the nominated position which are equivalent to the Australian standard (Skills Assessment may be required in some circumstances);
- meet any mandatory licensing, registration or professional membership requirements which allow you to work unsupervised and without further training;
- have been offered a full time position for a fixed term of at least two years (supported by evidence of a contract or letter of appointment signed by both the employer and the employee);
- be under 50 years old; and
- have Competent English language ability
There are exemptions relating to age, skills and English language ability but these should be assessed on a case-by-case basis and depend on your nominated occupation, salary and past work experience.
It is possible to lodge an Expression of Interest if you do not have a nominating employer and then, prospective employers and Australian state and territory governments can go into the Skill Select System, view your details and then nominate your for the permanent Australian visa.
Employers who apply through the RSMS Direct Entry will need to meet different criteria which include:
- The business is actively and lawfully operating in regional Australia;
- The position is full-time and available to the visa applicant for at least two year;
- The position has been certified by an Regional Certifiying Body;
- The nominated position is classified as being a skill level 1-3 occupation in ANZSCO; and
- The prospective migrant will be paid ‘market rate’. That is, the nominee will be paid at least as much as an Australian employed in the same job.
In addition to the above, the Department of Immigration will also assess the application against the following criteria:
- the nomination must be approved by the relevant Regional Certifying Body
- the business follows all relevant Australian laws and has a satisfactory record of meeting immigration laws (if applicable)
- the nominated position is in a business operated by the employer
- the position is being remunerated in accordance with relevant workplace legislation and awards.
MARA CODE OF CONDUCT
Provision for a Code of Conduct for migration agents is set out in Section 314 of the Migration Act 1958 and is prescribed in Schedule 2, Regulation 8 of the Migration Agents Regulations 1998.
You can read the Code of Conduct for registered migration agents by clicking on this link: Code of Conduct.
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