As the end of financial year is quickly approaching we are expecting the Government to issue a statement outlining an increase in fees and charges for lodging visa applications. Due to COVID-19 and the growing delay on application processing times we are unsure of what, if anything, the Government will do regarding the application fees this year.

On 15 June 2020, the Government did announce one small change to the surcharge rate for any payments made by credit card or PayPal for sponsorship, nomination fees and visa application charges.  Currently, the surcharge fee is dependent on the type of credit or debit card used at the time of lodgement. This announcement by the Government will standardise the surcharge to 1.4% on 1 July 2020.

Previous surcharge fees were in the range from 1.0% to 1.99% and so this standardisation will have a small impact on some of our clients but not all.

The Government has not provided information on any additional application fee increases although further announcements may be made prior to the end of the financial year on 1 July 2020. We will keep you up to date as always.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Many states in Australia are implementing compulsory registration requirements for engineers. This is very important for companies employing or sponsoring overseas engineers because it is a condition of a TSS visa that any compulsory registration or license must be obtained within 90 days of arrival in Australia or grant of the visa if already in Australia. It will also be required before permanent residence can be granted.

Registration laws in Queensland are already in effect.  For NSW, they will be in effect by 1 July 2021. Other states are expected to announce their time table soon.

It is not clear at this stage:

• Exactly what categories of occupation/activity will require registration e.g. if Construction Managers doing some engineering work will also require registration
• Whether there will be exemptions from registration e.g. it appears that performing engineering work under the supervision of an engineer may be allowed without registration
• Whether there will be more flexible timeframes for overseas engineers (either already in Australia or who will be arriving) to become registered (beyond the 90 days above)

We highly recommend that clients reach out to their state engineering authority for more information and we are always happy to help.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

As mentioned last month, our office has already successfully obtained many Global Talent Independent (GTI) visas for the best and the brightest talent in various tech related sectors. The GTI is focussed on individuals with an internally recognised reputation and the potential to earn above $149,000 p.a. Importantly, the Department’s policy has recently been updated, to clarify the pathway for those who have completed a Masters/Honours (with an 80% average) or a PhD in a relevant field within the past three years.

Achievements by recent graduates will be considered internationally recognised if their research is of international interest, including to governments and industry, or they have presented their research at international forums. The benefit of this program compared to other permanent residence pathways, is that it is not points tested. Indications are that there are 1,000 spots allocated to recent graduates (out of the 5,000 spots this financial year).

The GTI program is seen by government as a huge success and it is likely to continue beyond 1 July 2020, meaning this pathway will become an ongoing option for employers and their talented staff earning a high-income salary.

We have already helped many applicants to obtain permanent residence through the GTI so have employees or colleagues or friends contact us for a consultation.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

With so much uncertainty in the world, we are receiving a lot more enquiries about Australian permanent residence.

Sponsored employees can apply for permanent residence in two main ways through their employer:

• Temporary Residence Transition stream or
• Direct Entry stream (for some the Global Talent Independent (GTI) visa may also be an option).

The Temporary Residence Transition stream requires an employee to work for their employer on a 457 or 482 visa for a designated period of time (2 years or 3 years) before they are eligible to apply for PR.

The Direct Entry stream allows applicants to apply for permanent residence faster, without them having to work on their temporary visa for any particular period of time. This is advantageous for both employers and visa applicants, as employers can potentially request fewer years on the TSS visa. Since the SAF levy is calculated per year, expediting permanent residency has the potential to save employers additional funds, while at the same time helping their employee gain PR faster.

We are working with a number of clients now to review their permanent residence policies to devise strategies to save money. If you are interested in discussing this just let us know.

One thing to note, however, is that in addition to showing relevant work experience, the Direct Entry stream requires applicants to obtain a positive skills assessment. There are limited exemptions to this requirement.

It is important for employees to understand that when applying for skills assessments there are different approved skills assessing authorities for different occupations. Each skills’ assessing body often has their own, very specific requirements which, in some cases, can be more onerous than the PR visa itself. They also have different processes and fees.

Before considering whether to apply for a Direct Entry visa, it is vital that applicants very clearly review the appropriate assessing authority’s guidelines to ensure they will meet the requirements. Failing to closely adhere to what is required can lead to a refusal, or at the least, significant processing delays. With some skills assessing bodies taking anywhere between 8-12 weeks to issue a decision, it is important to get it right the first time around.

Ajuria Lawyers can work with your employees and help them identify the authorised skills assessing body they are required to use and work through the assessing body’s guidelines.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

The Government’s Regional Visa program commenced on 16 November 2019, as part of the solution to populate regional Australia, away from the major cities of Sydney, Melbourne and Brisbane. 25,000 visas were reserved this year for this program.

These Regional visas are designed to draw skilled workers to regional Australia by providing a pathway to permanent residence where there would otherwise not be one.

There are two different visas that form part of the program:

• The Skilled Employer Sponsored Regional (Provisional) visa, which allows employers to sponsor a wider range of skilled workers for positions located in regional Australia.
• The Skilled Work Regional (Provisional) visa, which requires the individual to demonstrate their skills (via points-test) in order to be nominated by a state or territory government agency to work in regional Australia. The visa applicant is required to score at least 65 points.

These temporary visas are granted for 5 years, with the ability to apply for permanent residency after 3 years of living and working in a regional area with a salary above $53,900.

Broadly speaking, the requirements for both visas are quite similar as all applicants must:

• Be under the age of 45 in order to apply (some exemptions may apply)
• Demonstrate Competent English at time of lodgement
• Have a positive skills assessment in their nominated occupation

The concern for most skilled workers is navigating the process to obtain the skills assessment as each skills assessment authority has their own specific requirements for each nominated occupation and some can be quite rigid and complex.

Contact us if you would like more information about the regional program and how we can help.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

If you are an Australian citizen or permanent resident seeking to re-settle your parents in Australia permanently, there are a number of Parent visa options available. The eligibility requirements for these visas can get a little complex but generally speaking, if you have lived in Australia for the last 2 years, and you are an only child or at least half of your siblings (including half and step) are living in Australia, you may be eligible to sponsor your parent for a Permanent Parent visa.

In broad terms, there are two streams of parent visas: contributory and non-contributory visas. The primary difference between these two streams is that, for contributory visas, the applicant pays extra fees (more than $43,600) to secure faster processing. You may be asking – is it worth the money?

For all Parent visa subclasses, the Department of Home Affairs sets a strict cap on the number of visa places available in any year. In practical terms, this creates a queue system where new lodged applications are placed in line and visa applications are considered on a “first in, first out” basis. The queue for Contributory Parent visas moves much faster while non-contributory visas stall – there has been no advancement in that queue for at least the last 9 months.

Current estimates published by the Department of Home Affairs suggests that processing time on a contributory visa lodged now would take approximately 4.8 years until a final decision is made while non-contributory parent visa applicants can expect to wait up to 30 years for a decision!

If you hear of anyone wanting help to bring parents to Australia we would be happy to help navigate all this.

DISCLAIMER This information is current as of 29 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

With the economy opening and the end of the financial year upon us, we are seeing a huge increase in activity by employers and individuals interested in permanent residence and citizenship.

We thought it would be helpful to reach out with a few common COVID-19 questions we are receiving.

Can we still lodge visas?
Absolutely. The Department of Home Affairs is still receiving and processing temporary and permanent visa applications, although people overseas are only being processed if they have been given permission to travel to Australia (or that is pending). In fact there is currently a surge on lodgements because Immigration fees typically go up on 1 July each year.

Do we still need to do Labour Market Testing?
Yes the usual rules for LMT still operate.

Will our employees be able to travel?
Sponsored workers need the permission of the Commissioner of the Australian Border Force to be able to enter Australia. Permission on this ground is only granted where the person has ‘critical skills’. While there is some guidance on what is critical, each case will need to be assessed individually. Those visa holders already in Australia can depart but should seek permission to come back before they leave or they may not be able to return to Australia even if they have a job, family and a home here.  Australian citizens and permanent residents generally need permission to depart.

There is no confirmed news on when the borders might open and offshore processing will resume. From the information we have been able to gather, the most likely scenario is that New Zealand citizens will be able to travel once our state borders are open. Overseas students might be allowed to travel from July/August with a pilot program for a ‘secure corridor’ now being prepared. Some time after that, they may start to let in families of TSS visa holders already in Australia. Depending on how that goes and the COVID-19 numbers in Australia, we might start to see some loosening of restrictions for sponsored workers in the last quarter of this year.

We are doing lots of incoming and outgoing exemption requests so call us if you would like to know more or need some assistance.

What if a sponsored worker has been stood down?
TSS and subclass 457 visa holders who have been stood down, but not laid off, will maintain a valid visa and businesses will have the opportunity to extend their visa as per normal arrangements. If your employee has been laid off you need to notify the Department in the usual way. While it is a bit unclear as to whether the Department expects employers to notify temporary stand downs, if you think any stand down could go on for much longer, you should contact us to discuss the best approach.

Can we reduce the working hours of a sponsored employee? 
Yes, for now – provided that the salary remains the same on a pro-rata basis. The usual rule is that all sponsored positions should be full-time, so this is a special flexibility for COVID-19.  It is unclear how long this will go on for but you should expect that you could be asked at some time in the future to demonstrate why you still need the sponsored employee if there is no full-time work. Also, there has been no announcement about how reduced hours might impact the permanent residence eligibility date for the sponsored employee given that it generally excludes periods where the person was not employed full-time. We will have to wait and see whether reducing work hours impacts PR or not. If you have concerns, you should contact us.

Can we reduce the wages of a sponsored employee?
Probably, provided that it is temporary, applies to Australians and sponsored employees alike and that the new salary is still at market rate. The usual requirement is that an employer would need to lodge a new nomination with LMT and market rate evidence, however, the policy section of the Department has advised us that, during COVID-19, it will be sufficient to notify them of the temporary change. Contact us if you have or intend to adjust wages (or hours or both) and we can work out what needs to be done as this can have other implications.

Will the occupation list change?
There has been no announcement about changes to the occupation list. The changes that were due to take place in March this year have been put on hold. The lists are driven by the availability of skills in Australia. Depending on the longer-term impact of COVID-19 on unemployment and the political debate about ‘Australians first’, some changes might be expected.  We will advise clients as soon as we have any official announcement. Until then, it is business as usual on occupations.

Wrap up
Our focus at the moment is very much on helping clients gear up for re-opening, dealing with the large number of requests about borders, managing onshore populations as usual, dealing with the increased level of permanent residence and citizenship questions and ensuring you all remain compliant. If you would like any more information about any of the above or just want to catch up generally on where things are at just give us a call.

Good luck everyone. There is light at the end of the tunnel!

DISCLAIMER This information is current as of 19 June 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Since its launch in November 2019, the Global Talent Independent (GTI) Program has generated some interest. Our office has been involved with applications in the various sectors and has had a number of liaison discussions with the talent program team in Canberra. Nothing like getting a GTI visa grant for our clients!

The program seeks to attract “the best and the brightest” from around the world by offering a streamlined and priority pathway to permanent residence if candidates are distinguished in one of the seven identified GTI industries and are likely to be able to command a salary in Australia above the Fair Work High Income Threshold (FWHIT), currently $148,700. There is also a stream for recent PhD or Masters graduates in the target sectors.

The seven identified GTI industries are: AgTech; Space & Advanced Manufacturing; FinTech; Energy & Mining Technology; MedTech; Cyber Security; Quantum Information, Advanced Digital, Data Science & ICT.

These permanent applications are fast-tracked and processed with priority. Even during the COVID-19 pandemic disruption, applications are still being processed with a focus on the Australian based applicants.

A recent Freedom of Information Request indicates that the government is no way close to filling the 5,000 spots allocated to this program. This may largely be due to the lack of public information on the program. It is clearly a perfect opportunity to lodge applications specially for those candidates currently based in Australia.

Please contact an Ajuria Lawyers adviser if you require further information at www.ajurialawyers.com or +61 (0)2 9222 6100.

DISCLAIMER This information is current as of 18 May 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Hospitality has been one of the industries hit hardest by the COVID-19 pandemic. Many of our clients have been deeply affected. We all hope that it will be over soon but we all need to plan for some level of disruption or change to usual business operations for some time to come.

There are a number of things that hospitality employers need to consider and work into your planning, processes and communications.

1. Renewals of visas and applications for permanent residence will be scrutinised more closely and should be planned for well in advance. Rejections of applications are a real possibility and this will need to be communicated to employees prior to lodgement.
2. Changes to employment arrangements for sponsored visas and other visas with work restrictions could be in breach of immigration laws and sponsorship obligations and/or impact future renewals or permanent residence and so should not be made without careful consideration and advice.
3. High levels of unemployment could lead to policy changes by Government that make it more difficult for hospitality employers to sponsor new employees until the economy is fully recovered.

1.    Renewals and PR applications
Clients are still lodging subclass 482 Temporary Skill Shortage (TSS) applications to ‘renew’ current visa holders whose visas are expiring. Clients are also supporting permanent residence applications where they can.

The Government’s position is that visa holders who have been stood down temporarily can still lodge a TSS application and apply for permanent residence, however, the usual rules continue to apply to those applications.

This means:

• Labour Market Testing (LMT) is still required. Where this is not possible, employers must consider lodging at least a nomination for an employee whose visa will be expiring in coming months (possibly up to a year) to ensure that previous LMT can still be relied on for that nomination. Even so, close scrutiny of the LMT should be expected and employers need to be prepared to demonstrate why no Australia could be found.
• Genuine Position –  In all cases an employer must show that there is a genuine position/need for the sponsored employee.  Obviously, this will take some care in explaining how the position is still needed in a shut down or restricted operations situation. Employers should expect a call or a written request from the Department asking about this and it is an area that could lead to an increase in application rejections and the need for an appeal.
• Genuine Temporary Entrant Requirement – In cases where employees are in two-year occupations and have had a previous TSS visa they will need to prove that they are a ‘Genuine Temporary Entrant’. We expect that this will also be more heavily scrutinised in coming months because of COVID-19.
• Use of 408 visa – Employees in essential services who cannot depart and cannot be sponsored because of the employer’s circumstances, might be able to apply for the Government’s new COVID-19 stream of the subclass 408 temporary visa for a short period, but eligibility will need to be assessed on a case by case basis.

2.    Changes to employment arrangements
Many clients and their employees have asked whether they can make changes to the employment conditions of sponsored employees or those on student or working holiday maker visas.

The Government’s position is that, for the most part, visa conditions and employment arrangements must remain unchanged and that the employee should depart Australia if there is no work in their role or within the terms of their visa. The exceptions to this are:

• Sponsored workers can work part-time or be temporarily stood down without being in breach of their visa conditions or the employer breaching sponsorship obligations but we do not know what impact this could have on future permanent residence applications. While we expect there could be a change in policy, under current rules this period would not be counted towards permanent residence. Salary should remain at the pro-rata rate as specified in the nomination for any hours worked (and also meet any employment law requirements). Sponsored workers cannot change occupation without a new nomination.
• Working holiday visa holders still need to change employer every six months 6 months unless they are in essential services such as medical, agriculture, aged care. Food preparation in a venue style setting (packing meals for home delivery etc) is not seen as an essential service.
• Student visa holders employed in hospitality are still limited to 40 hours per fortnight while their course is in session.

3.    What the future might hold 
Messaging from the Government clearly indicates that unemployment rates in Australia will have an impact on future policy direction in relation to TSS visas. While there is no way to know exactly how things will go and no announcements about this have been made, employers might want to factor into their planning the possibility that:

• Travel to Australia might be restricted for quite some time. When it opens employers could well be asked to pay for the costs of any incoming employee needing to isolate (currently this is paid by the Government).
• Certain hospitality occupations might be removed from the TSS list. If this happens, it is most likely to be short-term occupations such as Cook and Café or Restaurant Manager. The industry will need to convince Government of why high unemployment does not necessarily mean less skill shortages in these roles.
• New TSS applications for new hires are likely to be heavily scrutinised and will need additional supporting material and arguments to demonstrate why a sponsored employee is needed.
• Processing may well be much slower, requests for further information more common and rejections and appeal a much more likely possibility than before COVID-19. This will require careful communication and explanation with employees and candidates to set expectations and also guard against candidates quitting their existing jobs on the assumption of a transfer.

We will keep monitoring the situation for all the latest developments and please do not hesitate to contact us if you would like to discuss anything in this update or just to catch up.

We will all get through this together.

DISCLAIMER This information is current as of 14 May 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.

Following yesterday’s announcement by our PM to tourists that ‘it’s time to go home’, the acting Minister for Immigration, the Hon Allan Tudge made an announcement this morning relating to other temporary visa holders in Australia.

With 2.17 million in Australian on temporary visas, the government’s stated priority is to protect the health and livelihoods of Australians, support critical industries, and assist with the rapid recovery post the virus.

We are yet to receive information on the specifics of these announcements and how these will be applied on a practical basis.

We will continue to monitor these announcements closely and will update you when we get more information.

The following is a summary of what we know at this time.

TSS/457 visa holders

• Cannot access JobSeeker or JobKeeper allowances.
• Will be able to withdraw $10,000 from superannuation for this financial year.
• Will be able to keep their current visas and apply to renew their visa if they have been temporarily stood down but not laid off, but it is still unclear how the Department will assess the need for the position or Labour Market Testing.
• Will need to find another sponsor or depart the country if they have been laid off/made redundant.
• Will be able to work less hours without being in breach of their visa condition.
• Will be able to count time already spent working in Australia prior to Covid-19 pandemic towards permanent residency requirements if they hold a 4 year visa.
• No announcement made on relaxation of employment limitations for those that have been stood down.

Working Holiday Makers and Seasonal Pacific Islander workers

• Will not receive government assistance and will be expected to depart Australia if they do not have the confidence to sustain themselves over the next six months.
• Will be able to work for more than six months for one employer if they work in critical sectors – heath, aged and disability care, agriculture and food processing.
• Will be eligible for a further visa to keep working in these critical sectors if their current visa is due to expire in the next six months.

International students

• Will be able to access their Australian superannuation if they have been in Australia longer than 12 months and are in financial hardship.
• Will be taken to have met their visa conditions even if they could not attend class because of Covid-19.
• Are able to work for more than 40 hours per fortnight if they are working in aged care or as nurses.
• Will continue to be able to work for more than 40 hours per fortnight if they are working in major supermarkets up until 1 May 2020 after which their hours must not exceed 40 hours per fortnight as more Australians will take these roles.
• Maybe eligible for discounted tuition – contact your college/institution.

Other temporary visa holders in Australia

There are 185,000 other temporary visa holders in Australia, about half of them temporary graduate visa holders.

• Will be able to access their Australian superannuation if needed.

New Zealanders

• Continue to have unlimited work rights and access to Medicare.
• Will have access to welfare payments and the JobKeeper payment if they hold a 444 visa and arrived in Australia before 26 February 2001.
• Will be eligible for the JobKeeper payment but not JobSeeker or other welfare payments if they hold a 444 visa and arrived in Australia after 26 February 2001.
• Will be expected to return to New Zealander if they cannot support themselves.

For all the latest information join our free weekly webinar: Tuesday, 7 April 2020.  Register here.

DISCLAIMER This information is current as of 4 April 2020 and subject to change. The information contained in this publication is of a general nature only. It should not be used as legal advice. To the extent permissible by law, Ajuria Lawyers and its associated entities shall not be liable for any errors, omissions, defects or misrepresentations in the information or for any loss or damage suffered by persons who use or rely on such information. Liability limited by a scheme approved under Professional Standards Legislation.