Global Updates – European Union and Australia

EUROPEAN UNION – Council and Parliament Agree the European Travel Information and Authorization System (ETIAS)

On April 25, 2018, EU ambassadors confirmed that an agreement has been reached between the Council Presidency and representatives of the European Parliament on a proposal for the European Travel Information and Authorization System (ETIAS).

What is ETIAS?

ETIAS is an online pre-screening program which will apply to visa-exempt third country nationals travelling to the Schengen area, similar to the US Electronic System for Travel (ESTA).

For each application, travelers between the ages of 18 and 70 will have to apply online, providing requested personal information, and pay a fee of €7.

A travel authorization will be valid for three years or until the end of validity of the travel document registered during application, whichever comes first.

Background

The Schengen Area consists of 22 European Union Member States and four non-member countries: Iceland, Liechtenstein, Norway, and Switzerland.

The United Kingdom and Ireland have opted out of the Schengen area. It is not yet clear how ETIAS will apply to the UK/EU border after Brexit.

Currently, the nationals of 62 non-Schengen area countries may enter the European Union without a visa, for up to 90 days within a 180-day period.

Next Steps

The regulation will be submitted to the European Parliament for a vote at first reading, and then to the Council for adoption.

The EU Agency responsible for management of large-scale IT systems in the area of freedom, security and justice, eu-LISA, will develop the system with the aim of having ETIAS fully operational by 2021.

Once operational, ETIAS will be managed by the European Border and Coast Guard Agency in close cooperation with the Member States and Europol.

Action Items

No action is required from employers or assignees until the system takes effect.

AUSTRALIA – New Subclass 482 (Temporary Skill Shortage) Visa Available Since March 18, 2018

On March 15, 2018, the Australian Department of Home Affairs (DHA) published the Migration Legislation Amendment which implemented the new Subclass 482 (Temporary Skill Shortage) visa and became effective on March 18, 2018.

The legislation to implement the new Skilling Australians Fund levy (“Training Levy”) has been passed by the Senate and is awaiting passage by the House of Representatives. Therefore, the existing training benchmarks for employers sponsoring foreign workers on both temporary and permanent visas will apply to the new Subclass 482 (Temporary Skill Shortage) visa initially.

Background

The Subclass 482 (TSS) visa program replaces the Subclass 457 visa, and encompasses three work authorization options:

  • Short-Term Stream -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 years (or up to four years if an international trade obligation applies);
  • Medium-Term Stream -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 years, with eligibility to apply for permanent residence after three years; and
  • Labor Agreement Stream -for employers to source overseas skilled workers in accordance with a labor agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labor market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.

TSS applications require that applicants have at least two years of work experience in the previous five years in the nominated occupation.

Labor Market Testing (LMT) exemptions based on occupation will not be available under TSS.

Renewal of sponsorship will normally be auto-approved for an additional five years, on completion of a streamlined online renewal form.

TSS visa holders who wish to change occupation, rather than employer, will have to have a new nomination and visa approved.

Action Items

Employers are advised to contact their immigration advisor at McCown & Evans LLP for further guidance.

AUSTRALIA – Skilling Australia Fund Bill Passed by the Senate

On Tuesday May 8, 2018, the Migration Amendment (Skilling Australians Fund) Bill 2017 was debated and passed by the Senate. The Bill was passed with three notable amendments:

  • Labor Market Testing (LMT) must be conducted within a four-month period prior to submission of a nomination application (currently LMT must be conducted within 12 months);
  • Advertising to meet LMT requirements must be run for a minimum of four weeks to provide adequate opportunity for the position to be targeted to Australians (currently advertising must run for at least 21 days); and
  • An independent review of the operation of the Skilling Australia Fund is to be undertaken after 18 months, and is to be completed within 6 months.

While the Bill was passed by the Senate, the legislation must now return for further debate and passage by the House of Representatives. As yet, legislation has not yet passed both houses of parliament and has not yet received Royal Assent. As such, the date of implementation is yet to be confirmed.

Budget 2018/2019 update – Skilling Australia Fund

Treasurer Hon Scott Morrison MP announced in last night’s Federal Budget that a number of expansions will be applied to refunds for sponsors in relation to the Skilling Australia Fund. Refunds will now be available where:

  • a visa holder leaves a sponsor’s employ within the first 12 months and before the completion of the two or four-year visa period. (A refund request can be made for any full years the visa holder is not employed);
  • a visa holder does not commence work with the sponsoring employer; and
  • an employer’s sponsorship application is approved but the subsequent visa application is refused on health or character grounds.

Budget announcements also included that religious organizations will be exempt from paying the SAF levy under the Minister of Religion Labour Agreement or a company specific Labour Agreement covering specific nominated religious occupations.

About the Skilling Australia Fund

The Migration Amendment (Skilling Australians Fund) Bill 2017 (The Bill) was introduced for a first reading in the House of Representatives in October 2017 to impose a training levy payable into the Skilling Australia Fund (SAF).

Contributions will be required in relation to both permanent and temporary visas, and will be payable by sponsors accessing overseas workers through employer sponsored subclasses:

  • Temporary Skill Shortage visa (subclass 482);
  • Employer Nomination Scheme (subclass 186); and
  • Regional Sponsored Migration Scheme RSMS (subclass 187).

The SAF will be administered by the Department of Education and Training with the purpose of supporting the skills development of Australians.

The introduction of the SAF levy charge will replace the current training benchmarks that employers must meet; a contribution equivalent to either 1% (benchmark B) or 2% (benchmark A) of payroll.

Contributions to be paid into the SAF will be required to be paid in full at the time of lodging the nomination, and must be paid by the sponsor (cannot be passed on to the visa applicant). The proposed levy fees are:

Temporary Skill Shortage (subclass 482)

  • Businesses with turnover of less than AUD 10m: AUD 1,200 per nomination for each visa year; and
  • Businesses with turnover of more than AUD 10m – AUD 1,800 per nomination for each visa year.

Employer Nomination Scheme & Regional Sponsored Migration Scheme (subclass 186 & 187)

  • Businesses with turnover of less than AUD 10m – AUD 3,000 one off payment for each nomination; and
  • Businesses with turnover of more than AUD 10m – AUD 5,000 one off payment for each nomination.

The Bill also sets out the new requirements for Labour Market Testing (LMT), which were introduced as a mandatory criterion to be met at the nomination stage of the new Temporary Skill Shortage (subclass 482) visa on 18 March 2018.

To date all information in relation to the LMT requirements has been provided in migration policy, so passage of legislation in this regard is expected to provide clarity for sponsors.

Action items

Although there are no new regulations or implementation period in place for the SAF, companies should be prepared to pay the SAF once it has been implemented.

AUSTRALIA – New Global Talent Scheme Announced 

On March 19, 2018, the Australian Department of Home Affairs (DHA) announced that a new visa scheme to attract highly-skilled talent to Australia will be piloted from July 1, 2018.

Qualifying employers in two streams – established businesses and start-ups – will be able to access four-year subclass 482 (TSS) visas via streamlined applications and faster processing, with a streamlined pathway to permanent residence after three years, and no occupation list restrictions.

Business criteria

Businesses in both streams will have to meet the following criteria:

  • Demonstration that recruitment policy gives first preference to Australian workers;
  • Labor market testing for the specific positions; and
  • Good corporate citizenship, with no breaches of workplace or immigration law. Employees paid in accordance with an Enterprise Agreement or internal salary table that reflects current market salary rates for all occupations in the business.

In addition:

  • Established businesses must be publicly listed or have an annual turnover of at least AUD 4 million for each of the last two years. They can access up to 20 positions per year.
  • Start-ups must operate in a STEM-related field (eg digital, biomedical, agtech), and be endorsed by a “start-up authority” (entities for this role will be decided in consultation with industry before the pilot begins). They can access up to five positions per year.

Applicant criteria

Applicants in either stream must meet the following criteria:

  • Health, character, and security requirements;
  • No familial relationship with directors/shareholders;
  • Qualifications must be commensurate with the highly skilled role;
  • At least three years of work experience directly relevant to the position; and
  • Capacity to pass on skills to or develop Australians.

Additionally:

  • Applicants in the established business stream must have minimum annual earnings of AUD 180,000; and
  • Applicants in the start-up stream will require minimum annual earnings at the market salary rate. This can include equity but must have a cash component that is no less than the Temporary Skilled Migration Income Threshold (currently AUD 53,900).

Action Items

Employers who may qualify for the Global Talent Scheme should stay tuned for further details before and during the twelve-month pilot