The Temporary Skills Shortage (TSS) Subclass 482 Visa has come into existence in place of the 457 Visa. These changes have come into existence from 18th March 2018 and will affect all employers sponsoring staff. It is important to note that the changes to legislation are extensive in nature.

Due to this change, it becomes extremely critical for the employers to know about the new TSS Visa. Following FAQs will assist in answering all you needed to know about this change.

Post the date of 8^th March 2018, 457 visa cannot be applied for henceforth as the TSS subclass visa replaces the 457 visa. Permanent employer sponsored ENS and RSMS visas lodged on or post this date also fall under the ambit of the changes.

What do I do if I have an Outstanding 457 Application as on 18^th March 2018?

Processing will continue for the 457 visa applications lodged before 18^th March 2018. They will be accessed as per the Migration Regulations which were in effect prior to this date. However, if a 457 nomination is lodged prior to 18^th March 2018, but not linked to a 457 lodged by this date, then the nomination would not be processed and a refund will be given.

What the differential requirements between TSS Visa and 457 Visa? Following changes are important to note:

• The TSS has 3 streams viz. Short Term, Medium Term & Labour Agreement
• Work Experience
• English Language Ability
• Health Requirement
• Occupations List
• Work Conditions for the Visa
• Visa Validity Period for Adult Children
• Higher Visa Application Fees
• Training requirement for sponsorship approval
• Employer Sponsorship validity and renewal process
• Market Rate Salary
• Labour Market Testing is required in most cases
• Various Nomination Requirements

Knowing TSS Streams and how the Employer is required to nominate one of the three application Streams?

• Short Term Stream
  • The STSOL (Short Term Skilled Occupations List) should contain the nominated occupation
  • Genuinity of temporary entry should be confirmed by the applicants
  • The visa is valid for either One or Two years (unless an International Trade Obligation applies)
  • The visa only can be renewed once onshore
• Medium Term Stream
  • MLTSSL (Medium and Long Term Strategic Skills List) should contain the nominated occupation
  • Compared to a Short Term Stream, a higher level of English language is required
  • The visa can be valid for 1, 2, 3 or 4 years
  • No limitations apply on visa renewal and applicants may be eligible for permanent
    employer sponsored options as well.
• Medium Term Stream

As the name suggests, this stream is specific to employers that have a labor agreement with the Australian Government.

TSS Visa Work Experience Requisite

The TSS visa requires a minimum work experience of 2 years as also this would need to be in a ‘related field’ or nominated occupation. It has become a requisite to have work experience for the TSS Visa to be processed especially student. When in time of 457 Visa, no work experience was required and just a relevant qualification would suffice.

Some flexibility however has been allotted in considering work experience which in not mandatory in nominated occupation but related field.

A two year work experience waiver is possible though if sponsored under a Labor Agreement.

TSS Visa – English Requisites

The English Requirements are the same as for 457 Visa for the Short Term Stream, An average of 5 in the IELTS, with no scores under 4.5 in any of the 4 bands. A range of alternative English tests are also accepted as per the 457 visa.

The English Requirement is higher in case of Long Term Stream, A minimum of 5 in each band of IELTS is equivalent, and an average of 5 is insufficient.

Exemptions from English language testing (similar to 457) are available for:

• UK, Ireland, USA and New Zealand Passport Holders
• 5 years study in English medium
• Intra-company transfers where the base salary is at least $96,400
• Diplomatic/consular appointments

In case of Labor Agreement stream, the requirement is less stringent as applicants must show natural proficiency in English lingual skills without taking a formal English test

TSS Visa – Health Requirement

In terms of health requirement, the application applying for 457 or TSS, should comply with the following health conditions:

• Their health should not be of public health concern; or
• The health condition should not result into considerable cost to the Australian Community.
• The health condition should not result in use of scarce medical or community services

However, the 457 visa is subject to 4006A criteria which states that the applicant can still be granted visa in case the employer signs an undertaking that he is ready to meet the necessary health costs of the applicant. However, the issue being the employee had to divulge details about his medical condition to the employer to get the visa.

In case of a TSS visa, it is subject to health criterion 4007. This means that despite the applicant having a health condition, he still can be granted if the cost to the community is “not undue” via a health waiver. In which case, the applicant’s personal factors like pre-existing health insurance, financial ability to bear, and ability of relatives to provide necessary care would be considered.

However, there is no requirement that the employer sign an undertaking, meaning that the employee does not need to disclose their condition.

Changes to the Skilled Occupations Lists:

Following classifications have been amended in the structure of the list for the TSS visa that has changed:

• MLTSSL: the short list of most in demand occupations. Eligible for 4 year visas, and for permanent residence options
• STSOL: longer list of occupations which are eligible for a TSS visa valid for up to 2 years
• Regional Occupations: list of occupations which are eligible for a TSS only if the position is in a regional postcode. Also eligible for the permanent RSMS visa

The MLTSSL or STSOL has not undergone any change;however occupations have been added to the Regional list. This means that some occupations that were not previously eligible for 457 may be elible for TSS visa is the position is located in a regional area

Work Restriction on a TSS visa

TSS Visas are subject to condition 8607. This is similar to the condition which applied to the 457 visa and broadly covers the below:

• The employee can only work for the nominating employer, in the occupation in which they were sponsored
• If registration, licensing or professional membership is required to work in the position, the applicant holds this
• The holder must commence work within 90 days of grant or arrival in Australia; and
• The holder is subject to cancellation if they cease work for more than 60 days

I Have an Adult Child – How Long will the TSS Visa be Valid for?

If you are including a child in your TSS application, the visa will only be valid until the child’s 23rd birthday.

For a 457 visa, the visa could in some cases be valid after the child’s 23rd birthday.

What are the Fees for a TSS Visa?

The application fee depends on which stream is being applied for:

• Short Term Stream: $1,150
• Medium Term Stream: $2,400
• Labor Agreement Stream: $2,400

The application fee for a 457 visa is $1,080, so this represents an increase in application fees. There are no increases to the nomination or sponsorship application fees at this stage

The Government has also announced that a Training Levy will apply to TSS nominations. The legislation for this has not yet passed, but the following amounts are likely to apply:

• Large organization (over $10 million turnover): $1,800 per year of visa validity
• Smaller organizations: $1,200 per year

When the training levy is introduced, this will significantly increase the cost for employers of obtaining a TSS visa.

Can I Use a 457 Sponsorship Approval for the TSS Program?

Yes – you can use an existing Standard Business Sponsorship to apply for TSS Nominations and Visa Applications

What is the Training Requirement for Approval as a Business Sponsor?

Sponsors no longer require to provide evidence of training of Australians in the business to be approved as a sponsor. This is because of the expected introduction of the Training Levy in the near future to replace the training obligation.

However, the sponsorship obligation to provide training will continue for sponsors who have already been approved.

Training will also be relevant when applying for permanent Employer Nomination Scheme visas

What is the validity of the TSS Sponsorship Approval Valid for?

When a Standard Business Sponsorship is granted after 18thMarch 2018, thevalidity period of 5 years is applicable in most cases.
Previously, in case of the business being a start-up, it would be valid for a lesser amount of time.

What are the new Changes in the Sponsorship Renewal Process?

For sponsors operating in Australia, a simpler streamlined process of renewing the sponsorship is available after 18th March 2018.

For an overseas business sponsor, a new sponsorship application must be made each time, and the streamlined process is not available.

What are the Labor Market Testing Requirements for the TSS Visa?

Labor Market Testing requires the employer to show that it has not been possible to source an employee from the Australian labor market before sponsoring for a visa. Generally, this requires providing evidence that the position has been advertised and that no suitable candidates were available.

For the 457 visa, most management, professional and associate professional occupations were exempt from Labor Market Testing.

For the TSS Visa, Labor Market Testing is required in most cases. The main exception is where an International Trade Obligation applies.

Labor Market Testing must be conducted in the occupation within the last 12 months to meet TSS requirements – similar to the 457 requirement. From 18 June 2018, this must have been conducted within the last 6 months before application.

How is Market Rate Salary Assessed for the TSS Visa?

Compared to the 457 market rate salary requirement, there are detail changes and differences in terminology but the overall effect will be similar for most employers.

It is expected that minimum salary will continue to be specified for some occupations by caveats on the Skilled Occupations List instruments.

The method of assessing market rate salary has been revised for the TSS Visa as follows:

• If the applicant’s earnings are at least $250,000, the requirement is met
• The Annual Market Salary Rate (AMSR) for the position must be at least TSMIT (Temporary Skilled Migration Income Threshold). The TSMIT is unchanged at $53,900
• The nominee’s earnings must be at least AMSR
• The nominee’s earnings must be at least TSMIT
• Non-monetary benefits are excluded from the above considerations, unless the Minister considers it reasonable to include them (eg where an accommodation allowance is provided and this is necessary due to a remote location for the position)
• If the Minister has information that the employment conditions for the TSS applicant are less favorable that would apply to an Australian, then the application can be refused.

The Annual Market Salary Rate (AMSR) is determined based on the following process: 1. If an Australian permanent resident or citizen is working in an equivalent position in the same workplace:

1. If an industrial instrument applies to the Australian, the earnings as specified in the instrument

• Otherwise, payslips or an employment contract for the Australian

2. If there is no Australian in an equivalent position:

• If an industrial instrument would apply, the earnings as specified by the instrument
• Information from Job Outlook, remuneration surveys, advice from employer associations or unions, job advertisements.

3. If relying on job advertisements to establish AMSR, they must be:

• From a national recruitment website or from national print media
• In English
• Specify the salary arrangements for the position

What are the Changes to Nomination Requirements?

An array of changes have come into existence regarding the nomination process, Following are some of the important ones:

• For the 457 visa, whether the occupation was on the approved list was a time of decision requirement for the nomination and visa. As a result, if the list changed during processing, an applicant could be disadvantaged. For the TSS visa, this is a time of application requirement
• The TSS will only be available for full time positions. For the 457, part-time positions were possible, providing the base earnings were at least TSMIT
• The period of nomination must be specified and be exactly 1, 2, 3 or 4 years. We believe this is to facilitate payment of the training levy, which is based on how many years the TSS holder will be working in Australia
• Previously, the legislation did not make it clear whether an employee can pay nomination costs for a 457 visa. The new legislation specifically states that the sponsor must pay the nomination fees. This will be particularly significant when the Training Levy is introduced.