Global Updates – Australia, Brazil, and China
AUSTRALIA – Further Details of Upcoming New Temporary Skill Shortage Visa
On 11 January 2018, the Australian Department of Home Affairs (DHA) published clarification of various recent and upcoming changes to the skilled visa regulations, including new details on the new Temporary Skill Shortage (TSS) visa which is due to replace the Subclass 457 visa in March 2018.
Below, we look at the key updates from the DHA.
Updates to skilled occupation lists:
- Updated occupation lists for temporary and permanent skilled visas came into effect on 17 January 2018, but will not apply to pending applications.
- The next occupation list instruments will be published in March 2018 for the Employer Nomination Scheme visa (subclass 186), the Regional Skilled Migration Scheme (RSMS) visa (subclass 187) and the Temporary Skill Shortage (TSS) visa consistent with the broader legislative changes being implemented at that time.
- Same-sex married couples should now indicate ‘spouse’ instead of ‘de facto partner’ on their visa application forms.
Incomplete 457 visa applications:
- From 15 January 2018, incomplete 457 incomplete visa applications may be refused without requests for further information being first issued, after a grace period of two (2) calendar days.
- This new rule does not include cases where health and character documentation, or a related nomination or sponsorship application, are pending, or where a reasonable and satisfactory explanation for the incompleteness is provided.
Singapore-Australia Free Trade Agreement:
From 1 January 2018, an amended Singapore-Australia Free Trade Agreement (SAFTA) came into force, which exempts citizens, nationals and permanent residents of Singapore from the subclass 457 visa Labour Market Testing (LMT).
DHA reminds interested parties that the TSS visa program will encompass the following three (3) options:
- Short-Term Stream – The Short-term stream is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of two (2) years (or up to four (4) years if an international trade obligation applies).
- Medium-Term Stream – The Medium-Term Stream is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL) for up to four (4) years, with eligibility to apply for permanent residence after three (3) years.
- Labour Agreement Stream -The Labour Agreement Stream is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, based on a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.
Several measures are planned to streamline processing of temporary skilled work visas, including the new TSS visa. These include:
- New standard business sponsorships will be valid for a five-year period.
- There will now be auto-approval of complete streamlined lower-risk nomination applications lodged by accredited sponsors.
- There will also be a new streamlined renewal process for existing sponsors.
- Employers who are already approved standard business sponsors for subclass 457 will be able to sponsor skilled overseas workers under the TSS visa program.
- If subclass 457 nomination and visa applications are both lodged prior to TSS implementation, they will be processed under the current framework.
- If a subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will become ‘redundant’, as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved. Withdrawal and refund requests for lodged 457 nominations will be available. Employers are encouraged to lodge 457 nomination and visa applications prior to the end of February 2018 or to lodge the applications together under TSS once it takes effect.
- Dependent family members will be able to lodge TSS dependent visa applications linked to pending 457 visa applications or existing 457 visa holders. The validity period of the TSS visa will match the expiry date of the subclass 457 primary visa holder.
- Subclass 457 visa holders whose visa is not expiring but wish to change employer after the implementation of TSS, can get their new employer to lodge a TSS nomination application to facilitate this as per current arrangements and link this to the existing 457 visa.
- Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity) will need to lodge a new TSS visa application referencing a new TSS nomination application.
- Labour Market Testing (LMT) exemptions based on occupation will not be available under TSS. More details will be provided in late February 2018.
Employers with pending and upcoming applications for 457 visas, and those already employing 457 visa holders, should consult with their immigration adviser at McCown & Evans LLP for the latest information about these reforms.
BRAZIL – More Immigration Regulations Published
On 22 December 2017, the Brazilian National Immigration Council published further Normative Resolutions regulating residence authorization for foreign professionals. The key changes relate to residence authorization for intra-company training.
In addition, on 26 December 2017, the Brazilian Ministry of Foreign Affairs published a new rule which requires applicants for initial or extension residence authorization who wish to exit and re-enter Brazil to obtain a visitor visa while their residence application is pending. Please find further details, below.
Professional training at head office of Brazilian-owned multinational
Resolution 18/2017 replaces Resolution 79/2008, and regulates residence authorization for an employee of a Brazilian-owned multinational company to undergo training in the management methodology and corporate culture of the Brazilian head office, while remaining on home-country contract and payroll.
This visa is valid for a maximum stay of two (2) years, and is non-renewable (previously it was renewable once for up to another two (2) years).
Resolution 19/2017 replaces Resolution 87/2010 and regulates residence authorization for an employee of a multinational company to undergo training at the Brazilian subsidiary, branch office or head office, while remaining on home-country contract and payroll.
This visa is valid for a maximum stay of two (2) years (previously the maximum was one (1) year) and is non-renewable. A simplified training plan is now required in support of the application (previously this was not required).
Visitor Visa in Exceptional Situations:
Among the exceptional situations listed in Ordinance number 1001/2017 for the granting of a single-entry, 90-day Visitor Visa, applicants for initial or extension residence authorization who wish to exit and re-enter Brazil while their residence application is pending are now required to obtain a visitor visa.
Previously, applicants in this situation could exit and re-enter Brazil with an initial residence request protocol, or an extension of residence request protocol plus an expired RNE (Registro Nacional de Estrangeiros) card. This previous system led to problems for some foreign nationals in this situation.
Employers who would like further clarification of any aspect of the recent changes to the immigration rules in Brazil should contact their immigration advisor at McCown & Evans LLP for further guidance.
BRAZIL – Stricter Documentary Requirements for Police Registration
Effective 27 December 2017, the Federal Police in Brazil have introduced a new documentary requirement for the mandatory in-country registration (“Registro Nacional Migratório” or RNM) that most non-tourist foreign nationals must go through once they land in Brazil.
What has changed?
- Applicants must now submit their original birth certificate (and marriage certificate if applicable), or a legalized copy, and a legalized copy of their police clearance certificate covering the last five years.
- Copies must be notarized and legalized at the Brazilian Consulate abroad responsible for the jurisdiction where the document was issued, or apostilled under The Hague Convention, if the country is a signatory.
- Certificates not in Portuguese must be accompanied by an original sworn translation into Portuguese, completed in Brazil.
- Birth certificates must include the names of both parents.
- In the event of the birth certificate not clearly stating the name of both parents, or of a disparity or abbreviation in the names of the parents, the applicant will have the option of presenting a recent, original consular attestation (“cedula consular”), in lieu of the certificate.
- Previously, birth certificates were not required if another document was submitted stating both applicant’s parent’s names.
Employers should ensure that foreign nationals are prepared to submit all the required documents for the post-arrival police registration step, to avoid any delay. Please contact your immigration advisor at McCown & Evans LLP for further guidance.
CHINA – Talent Visa Rules and Benefits Clarified
Effective 1 January 2018, new regulations for the “R visa” for high-level talent allow multiple stays in China of up to 180 days at a time, with a validity of up to ten (10) years, a streamlined online application system, and reduced processing times.
To obtain an R visa, applicants must qualify as Category A under the classification standards for foreigners working in China. This can be based on either:
- the qualifications of their Chinese employer; or
- their own qualifications and experience; or
- their salary; or
- a score of at least 85 points under the new scoring system.
- The R visa allows people to stay in China for longer stays (180 days) than the usual M visa for business (90 days), is valid for between five (5) and ten (10) years with multiple entries, and has no associated visa processing fees.
- The same visa privileges will be granted to the qualifying applicant’s spouse and children.
- Once the State Administration of Foreign Experts Affairs (SAFEA) has issued a Confirmation Letter for High Level Foreign Talents, the R visa may be obtained at a Chinese consulate abroad. Both pre-approval and visa issuance steps are expected to be quicker than for an M (business) or Z (work) visa.
- R visa holders who wish to work in China can obtain a work permit through a simplified and expedited process, by submitting documents online. A work-related residence permit is required as well.
The 2013 “Administrative Regulation on the Entry and Exit of Foreigners” introduced the R visa, or talent visa, for highly skilled and urgently needed foreign talents. Until now, however, there has been no nationally-consistent implementation of the R visa.
Although applicable nationally, the Implementation Measures for Foreign Talent Visa System are being trialed in nine (9) provinces or cities, including Beijing and Shanghai.
Potential applicants are advised to consult with their immigration advisor at McCown & Evans LLP for further details of this new process for highly-qualified talent.