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 MIGRATION PLUS NEWS ALERT                                                            

Skilling Australians Fund (SAF)

New Temporary Skill Shortage (TSS) Visa

The new TSS is a temporary visa and allows the visa holder to work in their nominated occupation for the business that sponsors them for a period of up to 2 or 4 years.

There are three steps in obtaining a TSS visa:
1. The business applies to become a Standard Business Sponsor.
2. The business nominates the position and provides the details of the person they wish to employ.
3. The employee lodges a visa application, showing they have the skills for the nominated position.

STANDARD BUSINESS SPONSORSHIP (SBS)

To become a Standard Business Sponsor:
• The business shows that it is actively and lawfully operating.
• There must be no adverse information known about the business.

Upon approval, the SBS is valid for a period of five years and will allow the business to sponsor an unlimited number of TSS visa applicants.

NOMINATION
The position must be on one of the two relevant occupation lists, which are the:

• Medium-Long Term Strategic Skills List (MLTSSL) – Allows for a maximum four year visa, with multiple renewals and a pathway to permanent residency. There are additional occupations on the MLTSSL for positions in regional Australia.
• Short-Term Skills Occupation List (STSOL) – Allows for a maximum two year visa, with one onshore renewal and no pathway to permanent residency.

The occupation affects the 'stream' under which the visa applicant applies and determines the length of the visa that can be granted. It also determines the levy amount to be paid by the nominating business, under the Skilling Australian Fund (SAF).

It must be shown that the role has been advertised in an attempt to fill it from the local labour market, unless an International Trade Obligation applies. When assessing the nomination, the Department of Home Affairs consider whether:
• The tasks and duties of the position align with those of the nominated occupation.
• The position is genuine and fits within the nature of the business.
• The position meets any 'inapplicability criteria' or 'caveats' attached to the nominated occupation.
• The business has tested the labour market by advertising the position within the last 6 months (unless International Trade Obligations apply).
• The position attracts annual earnings (excluding superannuation) at least equivalent to the Annual Market Salary Rate (AMSR), and no less than the Temporary Skilled Migration Income Threshold (TSMIT) of AUD 53,900.

VISA APPLICATION

The final step in the application process is the visa application for the employee. The visa applicant must show they:
• Have the skills, qualifications, or employment experience required to fill the position.
• Have at least Vocational English.
• Have at least 2 years of recent work experience that is relevant to the position.
• Meet the character requirements.
• Hold adequate heath insurance.
• Meet the health requirements.
• Have substantially complied with the conditions on any previous visas held.

Applicants who nominate and occupation on the STSOL must also show that they are a 'genuine temporary entrant'.

Dependent family can also be included in the application and must show they are of good health and character.

Labour Market Testing (LMT) provisions

One of the requirements of a TSS nomination is that the nominating employer provides evidence of having conducted Labour Market Testing. Evidence which meets the following criteria will generally be considered sufficient:

1. The nominated position has been advertised in Australia
2. 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
• the annual earnings for the position (unless the annual earnings will be greater than the Fair Work High Income Threshold, currently AUD 142,000).
• The expected qualifications and work experience for the position
3. A least two advertisements were published:
• on a national recruitment website (for example, jobactive.gov.au) – 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.
• if the sponsor is accredited – on the businesses' website.

Whilst the required period of advertising is currently 21 days within the last 6 months, this is set to change to an advertising period of 28 days within the last 4 months.

There here are limited exceptions to this requirement. LMT is not a nomination requirement if:

• The nominee is a Citizen/national of China, Japan or Thailand; or citizen/national/permanent resident of Chile, Korea, New Zealand or Singapore.
• The nominee is a current employee of a company that is an associated entity of the sponsor; and located in Chile, China, Japan, Korea, New Zealand or any ASEAN nation (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam);
• The nominee is a current employee of an associated entity of the sponsor's business that operates in a WTO member country; nominated as an Executive or Senior Manager; and will be responsible for the entire or a substantial part of the company's operations in Australia.
• The nominee: is nominated as an Executive or Senior Manager; is nominated by an overseas business sponsor operating in a WTO member country; and will be responsible for the establishment of a new operation of that business in Australia.
• The nominee is a citizen of a WTO member country and is being nominated by an employer for whom the nominee has worked in Australia on a continuous, full-time basis for two years immediately before the nomination is lodged.

This means that LMT would not be required for a new nomination lodged by the same sponsor or an associated entity of that sponsor provided:
• the visa applicant/holder will be staying in the same nominated position; and
• either the new sponsor is still an associated entity of the original sponsor or the employer has stayed the same (that is, even if one company has ceased to exist).