Australia: Reforms to Employer-Sponsored Permanent Residence Programs Take Effect July 1
The reformed Employer Nomination and Regional Sponsored Migration Schemes will feature a streamlined pathway to permanent residence for subclass 457 visa holders, online applications, full work rights during the pendency of an application from certain applicants, a minimum salary requirement, and new age, skill and English language exemptions.
The Australian government recently enacted legislation to implement reforms to two key employer-sponsored permanent residence programs, the Employer Nomination Scheme (ENS) and the Regional Sponsored Migration Scheme (RSMS). The reforms – which will take effect on July 1 – feature a simplified path to permanent residence for foreign workers holding a subclass 457 visa, the principal temporary work category.
The implementing legislation clarifies application procedures, work rights during the pendency of ENS and RSMS applications, salary requirements for the programs, sponsorship requirements, age, skill and English language exemptions, and expanded eligibility for accompanying family members. It also clarifies that a partnership or unincorporated association may sponsor foreign nationals for the reformed ENS and RSMS.
The ENS and RSMS Reforms in General
The ENS is Australia’s standard form of employer-sponsored permanent residence. The RSMS is a special program that allows employers in regional and low population growth areas to fill vacancies they have been unable to fill with local workers.
Under the reforms, there will be three paths to permanent residence under the ENS and the RSMS: one for select subclass 457 visa holders transitioning to permanent status (Temporary Residence Transition stream), another for those seeking permanent residence directly (Direct Entry stream), and a third for applicants who are sponsored by an employer that has executed a labor agreement with the Department of Immigration and Citizenship (DIAC) (Labor Agreement stream). Subclass 457 visa holders transitioning to permanent residence under the ENS or RSMS will benefit from a streamlined pathway, while those seeking permanent residence directly will be subject to more stringent requirements.
Application Procedures and Prerequisites
When the reforms take effect on July 1, all ENS and RSMS applications will be submitted online. Foreign nationals applying from within Australia must hold a valid substantive visa or a bridging visa A, B or C. (Bridging visas allow foreign nationals to remain in Australia when they do not possess a valid substantive visa until a decision on their visa application is made.) Currently, applicants within Australia must hold a specified qualifying visa or have held one within 28 days of applying for the ENS or RSMS.
Foreign nationals applying for the ENS or RSMS from within Australia will be exempt from any existing visa conditions preventing them from extending their stay or changing status (the no-further-stay condition).
Expanded Work Rights During the Pendency of ENS and RSMS Applications
ENS and RSMS applicants in Australia will be given full work rights during the pendency of their application, provided they held a valid substantive or bridging visa A, B or C when they submitted their application. Currently, ENS and RSMS applicants continue to be bound by the conditions of their original visa, which in most cases prevents them from changing employers or occupations.
Market Salary Rates Requirement
In principle, the ENS and RSMS will be subject to the same market salary rates requirements that currently apply to the subclass 457 visa program, which require an employer to offer terms and conditions of employment that are no less favorable than those offered to an Australian in the same position in the same location. However, the Australia government has not yet specified the method employers must use to determine the appropriate market rate salary for ENS and RSMS applicants. There will be no exemptions for foreign nationals in highly paid occupations.
Requirements for Streamlined Pathway to Permanent Residence
Subclass 457 visa holders applying for permanent residence under the ENS or RSMS will benefit from the streamlined pathway if they have worked for their sponsoring employer on their visa for at least two years. The implementing legislation clarifies that the two years must be within the three years immediately prior to applying.
Subclass 457 visa holders must continue working in a position that is consistent with their current 457 occupation to qualify for the reformed ENS or RSMS. Under the implementing legislation, this means they must work within the same four-digit occupation unit group in the Australia and New Zealand Standard Classification of Occupations (ANZSCO).
If a subclass 457 visa holder is being sponsored under the ENS or the RSMS, the employer that sponsored the applicant for a 457 visa must have previously met that program’s training requirements. Employers sponsoring foreign nationals for the ENS who are abroad or who do not have the requisite prior employment in 457 status also have to meet similar training requirements to the 457 visa program and provide evidence of this, while those sponsoring someone abroad for the RSMS are exempt from any training requirements.
Age Requirements and Exemptions
Foreign nationals 49 years old or younger may apply for the reformed ENS and RSMS. However, applicants will be exempt if they have worked in Australia on a subclass 457 visa for at least four years immediately before applying and their annual income in each of those years equaled or exceeded the Fair Work High Income Threshold (currently set at AUD118,100 but will increase to AUD123,300 on July 1, 2012).
ENS and RSMS applicants will also be exempt from the age maximum if they are ministers of religion nominated by a religious institution; researchers, scientists and technical specialists nominated by an Australian government agency; or senior academics nominated by an Australian university.
Skills Requirements and Exemptions
Foreign nationals seeking permanent residence directly under the ENS will generally be required to possess three years of work experience in their occupation and must have their skills formally assessed, while those directly applying under the RSMS will be required to hold the relevant professional qualification for their nominated occupation.
Exemptions to the skills requirements will be available for applicants under the ENS and RSMS who are nominated to fill a position with a salary that is equal to or exceeds the Australian Tax Office’s top individual income tax rate (currently set at AUD180,001) or who have worked in Australia for at least two of the three years immediately preceding their application under a subclass 444 (Special Category visa for New Zealand citizens) or 461 (New Zealand Citizen Family Relationship) visa.
There will also be an exemption under the ENS program for applicants nominated to work as ministers of religion; researchers, scientists and technical specialists nominated by an Australian government agency; and senior academics nominated by an Australian university.
English Language Requirements and Exemptions
Subclass 457 visa holders applying for permanent residence under the ENS or RSMS will generally be required to possess vocational English language skills (Level 5 of the International English Language Testing System (IELTS)), while foreign nationals seeking permanent residence directly will have to possess competent English language skills (Level 6).
Applicants nominated to work as ministers of religion and those filling a position with a salary that is equal to or exceeds the Australian Tax Office’s top individual income tax rate (currently set at AUD180,001) will be exempt from the language requirements. Subclass 457 visa holders transitioning to the ENS or RSMS may also be exempt if they have completed at least five years of full-time study in a secondary or higher education institution where classes were taught in English.
Native English speakers holding valid passports from the US, UK, Ireland, Canada and New Zealand will also be exempt from meeting the English language requirements.
Expanded Eligibility for Accompanying Family Members
Prospective permanent residents may include in their ENS or RSMS applications the same accompanying family members that they listed in their original 457 visa application, even if the family members would no longer be eligible for dependent status under standard rules – for example, if a child has married or is no longer dependent on the principal applicant.
More Implementation Details Expected
Through the end of June, the Department of Immigration and Citizenship is expected to continue releasing more specific information on the implementation of the reforms. Fragomen is closely monitoring these developments and will provide additional information as necessary. In July, Fragomen will host several information sessions to discuss the impact of the changes to the ENS and RSMS.
This alert is for informational purposes only. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Australia or send an email to fragomenclientcorrespondence@fragomen.com.
Source: Fragomen