Employer Nomination Changes Effective 1 July

The Department of Immigration has announced that on 1 July 2014, there will be changes to certain employer nomination/regional skilled migration provisions so as to provide greater flexibility to intending applicants.

 A major change will be in relation to the policy with regard to the requirements under the Temporary Residence Transition stream when demonstrating 2 years work with the same employer. The Department has recognised that the existing arrangements were too restrictive, particularly where businesses have undergone change in the form of restructures, takeovers and sales.

 The updated policy will apply to all applications on hand as at 1July 2014, as well is all applications lodged from this date onward.

 The updated policy also provides greater clarity on issues such as ‘periods of continuous employment’, how time spent on a bridging visa is to be dealt with, and how employment is to be treated when the nominee has been working for a number of companies within a group.

 Persons wishing to apply for permanent residence under the Temporary Residence Transition stream should seek legal advice prior to lodging an application so as to ensure that their situation will fit within the new policy guidelines.

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Regional Skilled Migration Scheme (RSMS) subclass 187 visa

The Regional Skilled Migration Scheme can provide a permanent visa for people who are nominated for a job in a regional area of Australia.

 

This visa is available for employees nominated by employers operating in regional, remote or low population growth areas of Australia, who have nominated skilled workers to fill skilled vacancies in their business. This visa entitles the holder to a three year provisional residence in Australia. Holders of this visa are permitted to apply for a permanent visa after they have lived for two years and worked for at least one year in a Specified Regional Area.

The criteria for the employees is either of the following:

• skilled workers from overseas
• skilled workers temporarily residing in Australia

and also meets the following criteria:

• meets the age and language requirements.
• meets the skills requirements and be holding a Trade Qualification or Diploma.
• has an employer that is willing to sponsor them for this visa

A Regional Certifying Body assesses the nomination application lodged by the employer against specific criteria and must certify that the position is in high demand in the regional area.
This visa allows you and your accompanying family members to:

• live and work permanently in Australia
• study in Australia
• apply for Australian citizenship
• claim healthcare which is subsidized under the Australian Medicare System and the Pharmaceutical Benefits Scheme (PBS)
• apply for applicable social security payments
• sponsor people for permanent residence

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Skills assessment validity period - 3 years from the date of issue

Following amendments to the Migration Regulations 1994, from 1 July 2014, if a skills assessment is mandatory as part of a visa application, it will only be valid for a period of 3 years from the date of issue, unless a shorter validity period is specified on the assessment.

A skills assessment must be valid at the time of lodgement for the following visas:

• Direct Entry stream of the Employer Nominated Scheme (subclass 186) visa;
• Direct Entry stream of the Regional Sponsored Migration Scheme (subclass 187) visa; and
• Graduate Work stream of the Temporary Graduate (subclass 485) visa.

A skills assessment must be valid at the time of invitation to apply through SkillSelect for the following visas:

• Skilled—Independent (subclass 189) visa;
• Skilled—Nominated (subclass 190) visa; and
• Skilled Regional (Provisional) (subclass 489) visa.

These changes do not affect the Temporary Work (Skilled)(subclass 457) visa.

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Migration Review Tribunal (MRT) & Refugee Review Tribunal (RRT) - Community Liaison Update

The MRT-RRT have provided their June 2014 Community Liaison Update notes.  The notes include the following:

• 22,000 decisions have been made by the tribunals this year, 3000 more than for the same period last year, which has resulted in some improvement in waiting times.
• It will be business as usual during the amalgamation of these two tribunals with the AAT and Classification Review Board on 1 July 2015.
• Videos are also being developed for the tribunal's website to provide essential information for applicants on how the tribunals operate.
• From 1 July 2014 only the new versions of forms M1, M2 and R1 released on 12 March 2014 will be acceptable.

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Asylum seeker detention on Manus Island is constitutional, High Court rules

The High Court has unanimously upheld the Federal Government's constitutional right to send asylum seekers to Papua New Guinea. Read more

Questions about this article or immigration matters, please contact our specialist Nevett Ford Immigration team.

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Can You Remember the Dates of Your Previous Trips to the U.S.?

If you are a frequent traveler in and out of the U.S., you may find it difficult to remember the exact dates of your recent arrivals and departures. 

It’s not easy to remember all of these dates, and when you asked to list these dates on a visa application and your mind goes blank. 

Your temporary brain freeze is not a problem anymore and can be resolved in a few minutes.   

Under the new system, every time you enter the U.S. by air or sea your admission is now recorded electronically with Form I-94 by Customs and Border Protection (CBP) at your port of entry.  When you arrive, you are issued an I-94 number and you are given a paper with instructions on how to access the CBP website where you can retrieve an electronic copy of your I-94.  CBP maintains the arrival records in the Nonimmigrant Information System (NIIS).

Furthermore, there is a very handy tool on the website at the login page. 

There are two options:  “Get Most Recent I-94” or “Get Travel History”.  The travel history will reflect all of your arrival and departure dates for the last 5 years.

If you traveled on an older or now expired passport, you can enter those details to obtain their corresponding travel records . 

If you have any questions about this new tool or about U.S. Immigration, contact our specialist U.S. Immigration Attorneys at Nevett Ford.  

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Three new occupations to be added to the Skilled Occupation List (SOL) - chef, tiler, bricklayer

Chefs, tilers and bricklayers will be added the Skilled Occupation List (SOL) on 1 July 2014, Senators Michaelia Cash and Andrew Robb have announced. The recommendation to add these occupations was provided by the Australian Workforce and Productivity Agency which works independently of the Government to ensure the composition of the SOL responds to Australia’s changing skills needs.

It was also announced that no existing occupations will be removed from the SOL.

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Sydney public hearings for skilled worker programme inquiry

Federal Parliament’s Joint Standing Committee on Migration is set to hold public hearings in Sydney as part of its inquiry into the Business Innovation and Investment Programme (BIIP).

NSW also nominated 175 migrants for the Significant Investor Visa programme, which will represent a minimum of $262 million in new investment into the state if all are approved. The number of skilled migrants sponsored by NSW doubled in the past financial year.

The BIIP is designed to increase entrepreneurial talent and diversify business expertise in Australia.

Committee Chair Louise Markus said the Business Innovation and Investment Programme has the potential to generate a significant economic benefit to Australia.

“It is important that we encourage the creation of genuine and sustainable business opportunities benefiting both the Australian economy and workforce,” she said.

Details of the public hearings are as follows:

Date: Thursday, 12 June 2014

Location: Corinthian Room, SMC Conference and Function Centre, 66 Goulburn Street, Sydney

Program

9.00 am           Chambers of Commerce: roundtable

11.15 am          Migration Alliance Inc

1.00 pm           Mr John Findley

1.45 pm           Mr Christopher Levingston

2.45 pm           Financial Services and Funds Management Sector: roundtable

Date: Friday, 13 June 2014

Location: Corinthian Room, SMC Conference and Function Centre, 66 Goulburn Street, Sydney

Program

9.00 am           Migration Institute of Australia

9.45 am           Managing Global Migration Research Group

10.45 am          Australian Private Equity and Venture Capital Association

11.30 am          Immigration Solutions Lawyers

Members of the public are welcome to attend. For more details, visit the Committee’s website: http://www.aph.gov.au/mig

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Significant Investor Visa – twenty months on

On 24^th November 2012 the Australian government introduced the significant investor visa (SIV) to encourage foreign investment into Australia. 

Successful applicants receive a 4 year provisional subclass 188 visa after investing AUD$5 million into 'approved' investment funds (including ASIC approved funds, state government bonds and proprietary operating companies).

If the subclass 188 visa holder spends a cumulative total of 160 days  in Australia over 4 years it is then possible to apply for a subclass 888 permanent residency visa or extend the subclass 188 visa.

After an initial slow start, interest in this visa category has been growing steadily with applications currently outstripping grants. The first successful visa was granted in September last year and since then grants have been averaging at around 30 to 35 per month. 

Statistics recently made available disclose the majority of applicants for this class of visa come from China (72%), with strong interest from other countries such as Malaysia, the United States, Canada and the UK. Because of the volume of applications from China and the need to ensure the integrity of them, processing of these applications is done by a dedicated team working out of Hong Kong. All other applications are dealt with in Adelaide. 

These visas are attractive to high net worth individuals who, because of their business and lifestyle obligations cannot commit to spending long periods of time in any particular place. Although the qualifying criteria may seem to be straightforward enough, they are not easy visas to obtain. National interest issues and source of funds (that is, where did the applicant get the $5m funds which are to be invested) figure prominently in all applications, and anyone thinking of applying for this class of visa should seek legal advice before doing so.

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Corporate Immigration Services

Nevett Ford Corporate Immigration provides a range of services designed to support business users of the 457 Visa Programme and other temporary and permanent employer sponsored visas. These services include applying for Business Sponsorship, establishing systems and processes to meet the Sponsorship Obligations, audit, compliance, risk management, training and advisory services and assistance negotiation and preparing on-hire labour agreement submissions.

We can also liaise with the Department of Immigration on behalf of businesses in relation to requests for information, monitoring activities, ‘Notices of Intention to Take Action’ or other requests.

Business Sponsorships

Nevett Ford can assist your business to apply for Business Sponsorship approval with the Department of Immigration

Becoming a sponsor is the first step to engaging overseas staff to work in Australia. In order to become registered as a sponsor, businesses must meet a number of criteria and agree to meet certain obligations for the duration of their sponsorship and beyond.

Our experienced team can advise on the Sponsorship Obligations your business must meet as a sponsor and provide expert assistance in establishing the necessary systems to manage the process.

Employer Sponsored Visas

Nevett Ford specialises in the delivery of all aspects of Employer Sponsored migration including Temporary Work (Skilled) Subclass 457 visas, Employer Nomination Scheme 186 Permanent Residency, and Regional Skilled Migration Scheme 187 Permanent Residency visas.

Compliance

We can provide guidance on how to ensure your business is complying with the on-going Sponsor Obligations which are imposed on all 457 Business Sponsors. Our experienced immigration lawyers who are all registered migration agents have conducted audits and reviews for numerous national and international businesses to ensure full compliance with immigration laws and regulations.

Training

We can provide tailored training on all aspects of Australian Immigration to meet your business needs. We can deliver training programs for Human Resource staff, line managers and visa holders. Nevett Ford Immigration is able to deliver face-to-face and online training programs to meet your business’s needs.

Risk Management

Our immigration lawyers can provide industry best-practice guidance on how to manage risk in the use of all Employer Sponsored visa programs. Our legal expertise and experience means that we have the knowledge to help your business identify and effectively manage all aspects of risk associated with use of the 457 visa program and other visa matters.

Audit

We provide Audit services for employers to ensure that all aspects of the ‘Business Sponsorship Obligations’ are being met, identify and advise on potential breaches and liaise with the Department of Immigration on behalf of the business where necessary.

Nevett Ford Immigration can complete one-off or regular audits of the visa holder population to minimise risk and eliminate potential issues.

Advisory services including Immigration Program Process Design & Improvement

Our extensive experience with a wide range of employers means that we can review your business’s Immigration policies and systems and ensure you comply with industry best practice. We can also provide employment law advice. Alternatively, for businesses accessing the immigration program for the first time we can prepare policies and systems to manage risk and meet the relevant obligations.

On-hire Labour Agreements

An on-hire labour agreement (OHLA) is a formal arrangement negotiated between an on-hire business (sometimes known as a labour hire business) and the Australian Government. It allows the business to

recruit skilled overseas workers on a temporary basis on Subclass 457 visas for occupations approved

under the agreement and then on-hire them to an end-user employer. Nevett Ford has extensive experience in this specialised area.

Employers requesting an OHLA are required to provide a comprehensive submission to the Australian Government, represented by the Department of Immigration. Nevett Ford can assist your business in preparing suitable submissions as well as advise you on the extensive supporting documentation that must be provided.

Businesses seeking access to an OHLA must only nominate occupations that are currently listed on the Consolidated Sponsored Occupations List (CSOL). They will also need to provide compelling and concrete evidence that there is genuine and significant demand for the nominated occupations and that this demand cannot be met from within the Australian labour market. The number of skilled overseas workers requested under the OHLA should represent a minor proportion of the business’ workforce.  The input of stakeholders in your industry is of key importance. Stakeholder consultation is a mandatory part of the labour agreement negotiation process and the Department of Immigration recommends that this is initiated as early as possible in the process of seeking access to overseas skilled workers.

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MRT - Migration Review Tribunal

The Department of Immigration and Border Protection (DIBP) does not always make the correct decision about a visa application and for many visas an appeal can be made to the Migration Review Tribunal (MRT). This is called ‘merits review’.  The MRT is able to look at the application again, including any new information or evidence in support of the application.

There are a number of reasons to recommend a review of a visa refusal by the MRT. The MRT is an independent body and separate to the DIBP.  The MRT employs an inquisitorial method of deciding applications where the tribunal member is able to take an active role in determining whether a decision to refuse a visa was correctly made. The MRT is not bound by formal rules of evidence or legal technicalities and importantly, it acts according to substantial justice and the merits of the case.

Powers of the MRT

If the MRT decides that a decision to refuse a visa was incorrect, it has the power to set the decision aside and to grant the visa application. This is relatively rare, however, and in most cases where a decision to refuse a visa was found to be incorrect the MRT will simply set aside the decision and ‘remit’ the decision back to the DIBP for reconsideration.

In making a decision with respect to the visa application the Department must take into account the directions of the MRT.

Types of decisions which are reviewable by the MRT

Decisions reviewable by the MRT include:

• If a visa application (other than an application for a protection visa) has been refused;
• The cancellation of a visa where the visa holder was in Australia;
• Refusal to revoke the cancellation of a visa if the person is in Australia;
• A determination on the points test for skilled migration visas, business sponsorships and nominations; and
• A determination on security bonds for bridging visas.

Time Limits

There are strict time limits for making applications to the MRT. The time limit will depend on the decision which is being challenged but for all decisions these time limits are relatively short. An application to the MRT can only be lodged beyond the time limit in very limited circumstances and failure to apply within the time limit may mean that the MRT will lose jurisdiction to review your case. Examples of common time limits for application to the MRT are:

• 2 days: for review of a decision to refuse a bridging visa or cancel a bridging visa or to review a decision about a security bond; and
• 7 days: for review of a decision to refuse a visa or cancel a visa or for a decision not to revoke a student visa.

The Process

After an application is lodged, the first stage of the process is that a member of the MRT will examine the documents to assess whether the Department has made an apparent mistake in refusing to grant the visa. You may be invited to provide written submissions to support your case. If there is no apparent mistake or reason for why the refusal should be overturned the member will seek further information from you or initiate any research that is deemed relevant. If there is nothing to suggest the refusal was incorrectly made the member will then move to have a hearing where the applicant will appear to give evidence and is able to tender any further written information or call witnesses. Following the hearing the member will make a decision on the application.

Legal Representation

Only a registered migration agent can represent you at the MRT. There are a number of reasons why professional assistance can increase your prospects of success. Your agent can assist with the presentation of your case and prepare written submission to support your case. 

The experienced team of immigration lawyers at Nevett Ford are all registered migration agents and specialize in migration regulations and policy.

If you have any queries in relation to the above, please do not hesitate to contact us directly.

 

 

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Partner Visas where a Divorce is not an Option

Lodgement of a partner visa in Australia can be very problematic for citizens of the Philippines and other countries where no civil divorce is available, until an annulment is obtained which is generally a very time consuming and expensive process.

However, after 12 months of being ‘ordinarily residents’ of Australia with a valid temporary visa, an application for divorce can be filed under the Family Law Act. The divorce may not be recognised in the Applicant’s country of origin but it will make the person free to marry in Australia.

http://www.federalcircuitcourt.gov.au/howdoi/html/applying_divorce.html

The judicial interpretation of “ordinarily resident” is that a person must be habitually or normally resident in Australia, apart from temporary or occasional absences of short or long duration.  The definition refers not only to the place where a person is, ‘taking into account their physical residence’, but also on the person's intention ‘to make that place their home’.

 
At Nevett Ford we have Accredited Specialists (as certified by the Law Institute of Victoria) in both family law and immigration law to help you achieve your migration goals.

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