How Recent Changes to Employer-Sponsored Visas Have Impacted Students: TSS Visas and Alternatives
Published On: May 16, 2018
GLOMO’s Principal Lawyer – Ariel Brott – did a presentation for Mais Australia earlier this month, looking at how changes to employer sponsored visas (TSS, ENS, RSMS) have impacted on students and available alternatives. You can watch the video (or read the transcript) of the entire session below:
Thank you so much for coming. Today we’re going to talk about some of the recent changes to student… sorry, not just student visas, to visas in general, particularly employer sponsored visas and how in particular those have impacted on students.
Is everybody here a student? Anyone not a student? No? Okay.
That’s okay. I think you’ll get something out of this anyway.
Which countries are people coming from? Brazil, Colombia. Any other countries? Burma. Okay, Brazil, Colombia and Burma. All right.
Well, my name is Ariel Brott and I’m an accredited specialist immigration lawyer at Global Mobility Immigration Lawyers. And over the past year, particularly since April 2017, I’ve been hearing a very familiar story, which might be familiar to some of you guys, and you can let me know if that resonates or not.
Typically, I have somebody come to my office who looks a little bit worried. They’re from Brazil, they’re from Colombia or maybe they’re from Burma. And they may have come to Australia six months ago, a year ago, two, three, four, five years ago even.
They were pretty happy back in Colombia, Brazil, Burma. But they were working away and they realised that in order to get ahead in their career back home they needed to improve their English or they needed to get a better qualification.
And somehow or other, they ended up coming to Australia perhaps to learn English [unclear 02:17] course, perhaps to do a vocational course, maybe some higher education degree and so on. And over the course of their studies, they realised that, hmmm, this country isn’t so bad.
I wouldn’t mind knowing more about how I could possibly stay here, how I could get [unclear 02:35] Australia so to speak.
So while that might have been on their radar or they might have even taken certain steps towards permanent residence, what happened at various different periods of time was that the Government changed the law. So they might have been moving their strategy towards one goal post and suddenly the goal post moved.
This was definitely the case in April 2017 when the Prime Minister turned up on Facebook and announced that he’s getting rid of 457 visas, he’s bringing in a new visa and changing the occupation lists and so on.
Does this sound familiar to you guys? Yeah, so this has caused a lot of concern, rightly so. It’s unjust or just depending on who you talk to, but I’ve certainly seen a lot of people who spent a lot of time and money and a lot of heartache working towards something and they have now found that, wow, I need to rethink my whole immigration strategy. So let’s talk a little bit about that.
Not everybody’s the same, so I hope you can all get something out of this but if you do have specific circumstances and objectives, there’s no doubt you do, I’m happy to speak to you guys after if anybody has some questions, and we can see if there’s anything that might be particular to yourselves.
Okay, before we start, just be aware, Australian visas are subject to a genuine temporary intention criterion. You shouldn’t be applying for student visas with the intention of becoming permanent residents.
Certainly over time your intention can change and you can apply for things. And in that sense it does not hurt to be aware of what your options are. But just always bear that in mind, because you certainly don’t want to be applying for your next student visa with an explicit intention that, yup, I’m doing this in order to become a permanent resident.
All right, so we’re going to talk about temporary visas and changes to the temporary visas in particular. A little bit about changes to the permanent visas, particularly the transition from temporary to permanent. And then we will talk a little bit about alternatives to some of the pathways that existed in the past.
Okay. So impact number one, so this really occurred in April 2017 and had a more serious impact since March 2018. It used to be, on the 457 visa, there was a big list of occupations called the CSOL, which had a very broad range of occupations, including things like goat herder and blacksmith and all sorts of things.
And what they’ve done is, for one they took a whole bunch of occupations off altogether. And then with the remaining occupations, we’ve gone from 700 occupations down to a short term list which has 250 occupations and a medium and long term list which has about 200 occupations.
And that split between the short term and the medium long term list is quite significant because now instead of having 700 or so occupations, which all have a pathway to permanent residency, now it’s just that medium long term list which has a pathway.
It’s only about 200 occupations. Most of them being very sort of traditional vocational occupations like nurse, teacher, engineer, plumber, carpenter, things like that, whereas the more generalist type of occupations like marketing manager and so on, those don’t necessarily have that permanent pathway anymore. And when I say that, I don’t mean that absolutely. I don’t mean there is zero pathway. But that traditional sort of pathway from a 457 visa to permanent doesn’t exist any longer for those occupations in most circumstances.
I should also mention, regional employers have more options. So if you are working in a regional area, you might have a much broader range of occupations open to you.
And all of this should be understood in the sense that this occupations list is revised periodically. So what is not on the list today might be on the list in six months and vice versa as well.
A good example of this was management consultants which were removed from both lists altogether. Then the big four accounting firms made a fuss about it and then they were not just put back onto the list but they were put back onto the good list with a pathway to permanent residence.
All right, so impact number two. Length of stay. So the short term list now only has a maximum period of two years. That can be renewed once onshore for a further two years. So we’re looking at four years at that point plus any sort of processing time in between.
After that, you really need to go offshore to make another application and it might become, it’s yet to be seen, because we’re four years out from testing this in reality. But people may find it difficult to come back for a third one after they’ve just done two in a row. Or it might be a certain period of time needs to elapse or there may need to be certain conditions fulfilled. And we’ll know more about that when it’s actually happening and as policy develops.
In terms of the medium term list, that’s more akin to how the old 457s worked. It’s a four year period. That four year period is renewable indefinitely provided you meet the criteria, and it does have that pathway to permanent residence. So that four years could turn into the rest of your life potentially.
On that point I mentioned before about the short term list. That also, like I said about student visas, these also have a genuine temporary entrant requirement.
And that’s why some people may find after they’ve done a couple of offshore they may have trouble coming back again because immigration has an impression that you’re establishing sort of a, what they call a de facto residence in Australia, they may be reluctant to grant a third one, or perhaps they will grant a third one and then they’ll be reluctant to grant the fourth one. But certainly at some point in time, unless you can justify it, you may have issues actually getting continuous 482 TSS visas on that short term list.
Impact number three. This really affects students in a big way. So it used to be, graduates could be sponsored for 457 visas. Well the new visa, for TSS visas – the 482 visa sub-class – it’s only available to people who already have two years experience in an occupation.
So all these people who spent their life savings getting educated in Australia, being good citizens, abiding by their visa conditions, are suddenly finding that they’re… you might even by now have found that someone’s worked for part-time as a student, they love you, they want to sponsor you, but suddenly you find, hey, I don’t have enough experience to actually be sponsored. Okay, so we’ll talk a little bit more about that later. And this relates to both streams – the short term stream and the medium long term stream.
Impact number four. English. So for the short term stream, that’s essentially what it always or most was for 457 visa. Same level of English. For the stream which has a pathway to permanent residence, that stream requires a slightly higher level of English.
It needs the equivalent of IELTS 5 across the board. So some people may struggle with that. But the difference isn’t huge. So with the [unclear 10:39 study, if you’re close before, you shouldn’t be too far away there. No more English exemption either, if you’re only going by salary.
Costs. This is a big one.
(Just go back to the salary. This is for any kind of company or…?)
No. So it used to be that if you are on a salary of close to $100,000, you wouldn’t have to meet English requirements. They just consider that evidence in itself that you’re doing something highly specialised, you’re required, the company hiring is not going to throw that money at you unless you’re going to be useful. So that was fine.
They got rid of that. Then there was a bit of outcry, particularly in terms of foreign companies who don’t have a presence in Australia sponsoring somebody.
So say a foreign company wants to set up an outpost in Sydney or Melbourne, so the Government relented and decided, well, okay, if it’s a foreign sponsoring entity, if you don’t have a presence in Australia, then that exemption will still apply.
For most students that’s not really too relevant because most students aren’t making close to $100,000. But for some people it is an important distinction and certainly for people who aren’t students, that can be a big factor.
Okay so costs. And this really goes to the sponsors now. It’s a bit of a disincentive. It used to be the case that there was a training requirement in order to be approved as a sponsor. Essentially it came down to proving that you had invested a certain percentage or the equivalent of a certain percentage of your payroll towards training your Australian staff rather than just grabbing people from overseas.
And that was quite a sensible policy because it encouraged companies to invest in training. They’ve changed that. They’ve decided that instead of investing in training of your staff, instead, they’d rather that you gave that money to the Government to a training fund. And who really knows how that is going to be spent in the end?
I’m told that the Department of Education is managing it, I think. And there’s a bit more information about what they intend to do with that money, but it’s quite expensive. It is $1,200 or $1,800 a year depending on the turnover of the business. And that has to be paid upfront for every year. So let’s say $1,200 or $1,800, that’s per year.
So if they wish to sponsor you for four years, okay, you’re looking at close to $8,000. And then if your employee leaves after six months, well, question mark over that, they haven’t passed this yet. But the intention initially was “too bad”. That may change in its final form. But in any event, this is just one extra level of disincentive to employers because it’s going to cost them that much more to sponsor people like you.
They’ve also raised the visa application fee a little bit. That’s not unusual. They raise fees whenever they can.
Impact six. And this is another big one for students and those of you who have been looking at the points tested skilled visas might have noticed this but there’s been a bit of an exodus. So people who previously might have applied for a 457 visa might now be looking at other visas that are points tested and if anyone’s been tracking the various invitation rounds, because these points based visas work on invitations, you work out how many points your language and experience and qualifications add up to.
And it used to be, I just looked the other day, so, we had 60 points was the minimum in April 2017. By December 2017, we were looking at 75 points or 85 for 489. And currently, the last invitation round, it was 70 for 189 visa, 75 for 489s.
So people are spooked whether they are eligible or not anymore for a TSS visa. And certainly people who aren’t eligible are moving towards the points tested visas, which just makes it harder for everybody because 70, 75 points is not a small number of points.
You have to have pretty good English, pretty good experience, pretty good qualifications, age and so on. So that rules out points based visas for some people but not everybody. And bear in mind, like the occupations lists, these things fluctuate.
So next year, it might be back down to 60. So it’s just something you need to keep an eye on. And it certainly shouldn’t discourage anybody from lodging an expression of interest for a points tested visa, even if you’re only at 60, because it will sit in the system for two years and you can just let it be there, as sort of a Plan A, and meanwhile you can work on your Plan B or C with another pathway just in case you never get invited if the points never go down. And hopefully…
(Question [unclear 16:00] he was with 60 points…)
The discrepency? So your friend was invited with 60 points in April?
Just recently. Don’t know. I couldn’t tell you. I mean, I haven’t got the April 2018 figures here. They haven’t been published yet, it could be things have dropped down to 60. Okay, I was just thinking of this last night. March is the latest one they published. So that’s good news.
(unclear question 16:50)
Yeah, it could be in a state sponsored one.
(unclear question 16:57)
It could be because the state ones often track the same, because the states will cherry pick the top people as well, so…
(maybe he has good occupation)
It could be. We don’t know, is the answer. But the point rests, that no matter what, if you can get at least 60 points, and you think you might qualify for a skilled visa, it’s worth putting in an expression of interest, then maybe you’ll be like your friend, okay? We can’t tell the future. But it’s certainly worth having a go.
All right, just a few other changes regarding the TSS visas. All streams now they require police certificates. Shouldn’t be a problem unless you’ve been convicted of something. And if you have, well, just talk to me, it might well be manageable.
There’s a non-discriminatory workforce test. So employers who mainly only employ non-Australians might have trouble getting TSS visas or getting approved as sponsors.
Health waiver, that’s a tough one. It used to be, if you have some health condition that would disqualify you, your sponsor could just write a letter saying, well, we’ll underwrite this risk if anything happens, if they end up in hospital or whatever. That was easy. Now it’s much more difficult to get a health waiver. Now it’s much more like other visas where you have to show very special compelling compassionate circumstances. So hopefully everyone’s healthy and you don’t have to worry about that.
And this is good and bad, but now you can no longer apply if you’re unlawful or on a Bridging Visa E. You need to have a substantive visa, meaning just like a normal visa or a bridging visa between visas, Bridging Visa A, B or C. So those are the better bridging visas.
So if you’ve had some trouble, if you’ve let a visa lapse or so on, this will be a problem for you. On the other hand, they’ve removed one of the big hurdles for a lot of people on bridging visas. There used to be something called Schedule 3 which would make people jump through a lot of different hoops in order to get a 457 visa and that’s been removed. If you want to talk about the complexities of Schedule 3, we can talk about that later.
Okay. Impact on permanent visas. So the key permanent employer visas are the 186 visa r Employer Sponsorship Scheme (ENS) and the 187 or RSMS or Regional Sponsored Migration Scheme. They’re quite similar. Just one [unclear 19:23] for the regional applicants, and that has a few more concessions in a much bigger list of potential occupations.
So some of the changes are, they’ve brought in a minimum market salary rate which 457 always had but the permanent ones didn’t. So now it has to be, at the moment, absolute minimum $53,900. But it also has to be in line with market rates. So if your employer employs other people in your occupation, you shouldn’t be earning any less than them. If the general market rate for your occupation is $100,000, they can’t be paying you $80,000 and so on. So these things have to be justified.
Age has gone down from 50 being the maximum down to 45, subject to some exemptions.
The Skilling Australians Fund that I mentioned before, there’s also a contribution at this stage. Again just one more disincentive for employers. They’ve got to pay this $3,000 or $5,000 as a one-off, depending on their turnover.
And as I mentioned before, that the pathway from TSS to PR is really only from that medium term list, for the 186 [unclear 20:32]. But in regional areas, it’s a much, much broader occupations list, so if you are looking at permanent residency and you’re not on the right list, you might consider looking for employment in a regional area. And the other point to make is, in order to make that transition across into permanent residency, it used to be two years on a 457 visa, now it’s three years on the TSS visa.
And also for people who apply directly, so for these permanent visas, you can either apply if you’re on the medium long term list, you can apply after three years for the TSS visa, that’s the transitional stream, it’s a little bit easier. Or you can try to apply directly without ever getting a TSS visa. But in order to do that you’ll need at least three years experience in your occupation.
Again, difficult for students who weren’t already working back home. So if you’re from Colombia, and you were working as a nurse for 10 years before you came here and did some studying, then you get sponsored here as a nurse and assuming you’ve gotten your registrations and licensing and so on, well, you might be okay. But if you’ve come straight out of high school and studied here, then it’s not really an option, because you need that three years experience.
Okay, so this being the case, so I’ve painted a picture for you so far. A lot of problems. I think you’re probably aware of these problems more or less or otherwise you won’t be sitting here. So what can you do about this? What kind of alternatives might be available to you? So I’m just going to touch very briefly on some of these. And again, if you want to talk about any of these in greater depth, that’s something we can discuss later.
In terms of permanent options, well, as I mentioned, if you’re on the better list so to speak then option 5, the 186 visa, is open to you. The 189, it’s an independent, points based skill visa. But if you’re not on that list, which is really what we want to talk about here, what can you do?
Well, the first one which might sound a little far fetched is you can try to get your occupation listed on that better list. Go talk to your local MP and so on. I’ll talk about this in greater detail in a moment. Then there are labour agreements. Maybe you can work regionally. It may be you can get a state sponsored visa.
In terms of temporary options, and there are reasons you might go for a temporary option. For example, in order to just accumulate that two years in experience before going for a TSS visa.
Otherwise, there’s the 485 visa for certain occupations or certain levels of education. You might get a year and a half out of that, or even longer if you’ve done a PhD, I think it’s up to four years. That gives you a bit of time to get experience in the Australian market.
There’s a training visa that you might want to look at doing.
There are work and holiday visas for certain countries. I don’t think Brazil’s on the list. I don’t think Colombia is there, or Burma, so that might not help anyone in this room. Any other country since I last asked? Anyone else here from any other countries?
Chile is eligible. Okay, there we go. So you might want to consider the work and holiday visa to extend your experience.
So the first one as I mentioned is, every six months, the occupations list is revised. And the Department of Jobs takes submissions. And if you think you can make a good case for it then you should get involved. You should, you can do it yourself, or if you know anyone of influence, if your potential employer for example is well-connected or you can talk to your immigration lawyer or you talk to your local Member of Parliament, it may be you can get it returned to the list.
As I mentioned before, the big four accounting firms got management consultant returned not just to both lists but to the better list – why not your occupation? Well, maybe because you’re not the Big Four. But you don’t have to be in the big four to have a say in these things. So that’s one avenue to look at.
Labour agreements, again I’m not going to go into great detail into this. But labour agreements are essentially a form of exemption for the TSS and permanent visas. Exemptions might be based on occupation, they might be based upon age or English and so on.
There are certain industry templates for it. So in certain industries, there are already existing labour agreements. Or you can get these more specific ones. So again your potential employer or current employer who intends to sponsor you, they can apply for a labour agreement, but they do need quite a strong business case for why they need you and often that comes down to shortages – you might have very specialised skills and so on.
Again, [unclear 25:53] to students, because you might not have a huge amount of experience to make that point. But maybe, okay, maybe. Who knows?
Okay, the 187 visa. So I mentioned that briefly before. That’s a regional sponsored visa. Very broad range of occupations. Really worth looking into that one. And also bear in mind that regional areas aren’t necessarily what you think they are.
There are certain entire states of Australia which are considered regional. Geelong is considered regional. And you don’t necessarily need to be living in a regional area. You just need to be working in the regional area. So say you live halfway between here and Geelong in Werribee, you commute to Geelong every day and it takes you half an hour, then you could potentially get a visa. It’s something worth looking into.
190 visa. So this is one of the points based skilled visas. It’s state sponsored. So you don’t have to be on that medium long term list. But you do need to be on one of the state lists. So every state has its own list or territory and it’s not a long list but it changes all the time. They often have conditions attached. So maybe you need to have a PhD or maybe you need to have an IELTS of 8, or it might be you have to study in that state, or it might be you need a job offer in that state.
Every state’s different. And some are easier than others. So states I think like Tasmania, potentially a little bit easier. So if you happen to move somewhere like Tasmania, which is a nice place, you might have options for being sponsored by the state of Tasmania.
States like Victoria, New South Wales tend to be a little bit more difficult. Again it’s the supply demand dynamic here. If they’re getting a lot of applicants they tend to make you jump through more hoops. But that’s an option worth looking into.
(But 190 will lead to the permanent residence?)
That’s right. Yeah. That’s right. Then we have the 489 and 887. So they’re sort of the provisional and permanent versions of the same visa program. This is also a regional visa. State sponsored. Or it can actually be family sponsored as well.
But certainly in terms of Victoria anyway, the family sponsored [unclear 28:20] these days. And you start off with the 489 visa. And then you can transition across after a couple of years of working in that state. Again subject to conditions, subject to every single state’s lists and their requirements. Worth looking into.
Okay, temporary options. So again, as I said, you may not want a temporary option. But that may be your only choice in sort of a multi-stage strategy. So often you can’t just move from Point A to B. You might need to move from Point A to Z and go though a number of different stops along the way in order to get to where you want to be and just hope that the law doesn’t change inbetween as it sometimes does unfortunately.
So the 485 visa might be familiar to most of you because you are students. Certain types of students in certain occupations or certain types of levels of education are eligible for these.
As I said, it could be anywhere between 18 months to 4 years, 4 years for PhD graduates. And the main reason for doing this apart from what are your specific concerns, but for now, from the perspective of what we’re talking about today, this is a way to get experience as a pathway towards eventually getting a TSS visa or a 186 visa or a 187 visa and so on.
Another option as I mentioned before, the working holiday visa or the work and holiday visa, there are pretty strict age limits on there, it only goes up to 30. Pretty strict list of countries, so our Chilean friends here will find this relevant, and that would actually be the work and holiday visa for you. And that’s something worth looking at that could get you another year or two of experience if you require it.
Bear in mind though that the work and holiday visas, they’re subject to a six month work limitation for any one employer. So it may be you need to find several employers in your field in order to accumulate that experience.
And then as you were asking for, the training visas. So there are multiple streams of that. Maybe you’re doing a training program in order to register as a requirement of your occupation, because certain occupations require work experience.
It may be you’re doing it just to enhance your skills in certain eligible occupations and that can include occupations on the STSOL short term list. But that can be for up to two years. It doesn’t have the same requirements as a TSS visa in terms of English and salary and so on, so there are fewer disincentives to an employer.
They do need to typically show whatever structured training program for you. But that could be a good way to build up experience that you need in order to get to the TSS visa.