Australia immigration alert: Another hurdle added to the temporary skilled workers’ visa

Skilled workers pursuing immigration to Australia based on a skilled worker’s visa might find it more difficult to reserve a spot on the labour market, as the visa programme has toughened over the last half year.

Another element was added to the programme’s list of requirements: an Australian employer may not hire a foreign temporary worker before Labour Market Testing (LMT) has been carried out.

The temporary skilled worker visa, or Subclass 457 visa enables employers to fill skills shortages by recruiting qualified overseas workers where appropriately skilled Australians are unavailable.

Since November 23, 2013, Labour Market Testing has been enacted as a requirement for the visa under the Migration Amendment (Temporary Sponsored Visas) Bill 2013.

Rather than merely being encouraged to recruit workers from the local labour market, employers are now required to provide evidence of their efforts to do so, in the form of advertising vacancies, local recruitment drives, and active involvement in domestic career expositions. These efforts would have to be made from at least 4 months prior to sponsoring a 457 visa for a position.

The move is latest in a series of legislative changes to the visa program in an effort to curtail the perceived exploitation of the program by employers seeking to employ cheaper temporary foreign workers in favour of local workforce.

On July 1 last year, several changes were pushed through with the aim to strengthen the legislative capabilities of the Department of Immigration and Citizenship (DIC) in curbing misuse of the program. Since then, the DIC carries out inspections when suspicions over the genuineness of the position are raised, and in case of discriminatory hiring policies, takes action against the employer.

Further, the market salary exemption threshold was increased and the English language exemptions for certain positions was removed, in an attempt to create equal opportunities for local workers and foreign workers alike.

The LMT is expected to contribute to similar improvements, by keeping a tighter grip on employers who are likely to misuse the program.

“The 457 programme has expanded well above the national employment growth rate, and while most employers are using the subclass 457 appropriately, the nature of the programme’s use by some employers indicates that the objectives of the programme are not being fully met,” the DIC explained on its website.

Newland Chase, a UK-based immigration consultancy firm explained: "While there exists proposed flexible alternatives and exemptions from the LMT, by way of statutory instrumentation, aimed at ensuring shortage occupations will still enjoy less onerous requirements in sponsoring 457 visas; trading, nursing and most notably engineering occupations will be prohibited from any such exceptions.

"Consequently, many industry sector employers who rely heavily on skilled temporary foreign workers, such as engineers, will likely be pejoratively affected in having to comply with the LMT."

According to the DIC, it is the employer already misusing the program that will be affected the most, as genuine Subclass 457 visa applicants are expected to be doing the right thing.

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