Unlike its predecessor 457 visa, Temporary Skill Shortage visa (subclass 482) does not enable the applicant to link a new Nomination application with already lodged visa application. As a result of that if a 482 Nomination application is refused, the applicant’s visa would either be refused or the applicant would have the opportunity to withdraw the visa application. This place the applicant in a vulnerable position since a visa refusal often poorly reflects on the applicant’s immigration history and may significantly limits applicant’s option to lodge further visa application from onshore.
In this article we will highlight five important features of the TSS Nomination application that an applicant must consider well in advance before proceeding with this application:
Labour Market Testing (LMT):
The sponsoring employer has an obligation to test local labour market and must attempt to recruit Australian employee before lodging a Nomination application unless an exemption applies. The method by which the labour market testing needs to be conducted, the duration of the testing along with evidentiary requirements to substantiate compliance with labour market testing requirements are so specific that even a slight deviation from the requirements may result in the refusal of the Nomination application.
Skilling Australians Fund (SAF) Levy:
The sponsoring employer needs to pay Skilling Australians Fund (SAF) Levy unless an exemption applies. If the annual turnover of the business is less than $10 million, then levy is $1200 per year. Any business with an annual turnover $10 million or more is required to pay $1800 per annum for SAF levy. The cost is significant and often acts as a deterrent for the employer to proceed with the Nomination application. For example, if an applicant is sponsored by a business with annual turnover is less than $10 million and applies for a visa for four years through Medium-term stream then the employer needs to pay $4800 for SAF levy.
Annual Market Salary Rate (AMSR):
AMSR requirement effectively means that the salary of the sponsoring employee must be equivalent to salary of the equivalent Australian employee. At any rate the salary of the sponsoring employee must not be be less than Temporary Skill Migration Income Threshold (TSMIT currently @ $53,900). In order to establish market salary rate for the sponsoring employee, a combination of award, enterprise agreement, job advertisements, remuneration survey, data from job outlook, employment contract of the equivalent Australian employee are used depending upon whether the sponsoring business already has an Australian employee working for the business.
Do you wish to sponsor a Funeral Worker but your business is not located in Regional Australia? Or do you intend to sponsor an Accountant but the annual turnover of your business is less than $1 million? In both instances your sponsorship application would not be successful as sponsoring them will be in breach of the caveat requirements applicable to these occupations. Various caveats applies to various occupations. The Department of Immigration made it clear that a professional submission explaining the caveat requirements in detail is required to address this criterion.
Genuine position requirement encompasses forensic scrutiny of the application in its entirety. An applicant may seemingly satisfies all the criteria mentioned above but in essence the issue relates to whether the position associated with nominated occupation is genuine. A submission from an experienced immigration lawyer addressing the genuine position requirement is essential for successful outcome of the nomination application.
How Can K Group Legal Assist you?
Employer Sponsorship application can be a very complex process. TSS Nomination is not an exception. With our years of extensive professional experience in immigration law we are in a position to bring creative strategies and knowledgeable guidance to you in a challenging situation.