People engaging with 457 visa sponsorship will have noticed a change in the way the Department of Immigration and Border Protection (DIBP) are processing subclass 457 nomination and visa applications.
The introduction on 1 July 2015 of a new division within DIBP, Australian Border Force, appears to have sparked an increased focus on ensuring integrity. Measures designed to ensure integrity are of course welcome, but we would argue they should not be to the detriment of Australian businesses that comply with their immigration obligations. Recent changes appear to have come at a cost, and now affect the streamlined character of the business visa programs that helped make them relevant to the needs of Australian business. We address key focus areas below.
This criterion was introduced into immigration legislation in July 2013. It remained effectively dormant until DIBP issued policy guidelines to its assessing officers in late 2015. This led to a noticeable increase in refusal rates and processing times.
The guidelines prompted case officers to request additional information in relation to the nominated occupation if there are concerns that:
a. the nominated position appears to have been created for the purpose of facilitating entry to, or remaining in, Australia
b. the tasks to be performed by the nominee do not appear to be consistent with the nominated occupation; or
c. the nominated occupation does not appear to be consistent with the nature of the sponsor’s business.
The flow-on effect on processing times was immediate. Requests for ‘Further Information’ require a response within 28 days. Regardless how quickly the requested ‘Further Information’ was provided to the immigration department, a practice developed whereby case officers may wait the full 28 days before resuming processing on the application, adds a direct delay to processing.It is our understanding that most requests for further information involved concerns over the match between the job duties and the nominated occupation (Point ‘b’ listed above) with particular emphasis on certain occupations, most notably Customer Service Manager but not limited to this.
While the introduction of this delay caused obvious concern, we also became aware there have been instances where case officers have refused applications without seeking further information.
There is currently a refusal rate of approximately 10 percent for nominations lodged under the subclass 457 visa program, which is higher than what we have seen for many years.
The above confirms the need to ensure that well-prepared applications are lodged with all supporting documentation available. Supporting documentation may in some cases include extra submissions supporting the genuineness of the nominated position – that it was not created for the purpose of obtaining a visa, that tasks are real and clearly associated with a skilled ANZSCO occupation and that the nomination is consistent with the nature and scale of the sponsor’s business.
When not all supporting evidence can be included when an application is lodged, it is important that DIBP be informed accordingly and advised when the documentation is expected to be available for assessment.
|the nominated position appears to have been created for the purpose of facilitating entry to, or remaining in, Australia|
|the tasks to be performed by the nominee do not appear to be consistent with the nominated occupation; or|
We are aware of instances where applications are taking up to 3 months for a decision to be made. Whilst the published service standards for a subclass 457 visa are still 5 to 6 weeks from date of application, businesses should take into consideration the extended processing time and plan accordingly.
Whilst no major legislative changes are slated before the end of the financial year, we expect the following changes which would affect subclass 457 visa processing may be implemented:
The expectation is that changes to the training benchmark will be implemented prior to 30 June 2016, however no formal communication has been received to date. This has the potential to increase costs for business, especially those with high populations of subclass 457 visa holders and we suggest such organisations be assessing the potential impact of this now.
Separately, we also anticipate finalisation of the Skilled Migration Review for a planned implementation date of 1 July 2016, although again, there has been no recent communications on this. One of the recommendations related to introduction of a Short-term Mobility Visa allowing work for up to 1 year. This received a favourable response from business, however we have been advised that this visa will not form part of any changes announced.
We will provide advice on developments in this regard as they occur.