Virginia, US
 
 
The changes to the occupation lists will have an immediate impact on any pending 457 nomination and visa applications, whilst the broader changes will impact current 457 visa holders in future 457 and ENS/RSMS applications. 
 
Impact on lodged and pending 457 nominations and visa applications
 
The new occupations lists will impact all lodged 457 nominations and visas that are still being processed by the DIBP:
 
  • Where the nominated occupation has been removed entirely from the STSOL or MLTSSL, DIBP has advised that the 457 nomination or visa cannot be approved. These applications will need to be withdrawn and a refund of lodgement fees requested. An assessment will then be needed  as to whether a new 457 application can be lodged based on a new occupation (we expect that this will only be an option in limited number of cases);
  • Where the nominated occupation is subject to a caveat – an assessment will need to be made as to whether the applicant can satisfy the additional work experience, regional location or occupation specific caveat.
 
Impact for current 457 visa holders
 
The amendments will also impact current 457 visa holders:
  • where the nominated occupation has been removed from the occupation list – whilst the visa holder’s current subclass 457 visas will not be affected, they will be prevented from lodging any further 457 applications in that removed occupation;
  • where the nominated occupation is subject to a caveat – again, whilst the visa holder’s current subclass 457 visas will not be affected, they will be prevented from lodging any further 457 applications in that occupation unless they visa holder can meet the additional caveat requirements; or
  • who are aged 45 and above and wish to apply for permanent residence under the ENS/RSMS program.
 
For this cohort, assessments should be undertaken to determine if they may be eligible for permanent residence under the ENS/RSMS at this time. You may find the below checklist useful in assessing whether your employee(s) should lodge an ENS/RSMS application prior to 1 July 2017:
 
  1. Does the applicant hold a subclass 457 visa as sponsored? If yes, have they held this held their 457 visa for 2 years in their nominated occupation with the same sponsor?
  2. Is the applicant a citizen and passport holder of the United Kingdom, the USA, Canada, Ireland or New Zealand? OR Does he/she have an IELTS (or equivalent test) with score of 6.0 in each component in a test conducted less than 3 years ago or will he/she be likely to obtain such a score?
  3. Will the applicant be 45 years or older after 1 July 2017?
 
If you have answered YES to all of questions 1 and 2 and NO to question 3, based on the information that the DIBP has released it is likely that the applicant will not be impacted by the changes which will come into effect on 1 July 2017. However please note that the reduced age limit of 45 will apply to all permanent employer sponsored visas from March 2018 so further advice will need to be sought.
 
If you have answered NO to questions 1 and 2 and YES to question 3, based on the information that the DIBP has released it is likely that the applicant WILL be impacted by the 1 July 2017 reforms. If the applicant is eligible, we would recommend that an ENS/RSMS application be lodged under the current ‘Direct Entry’ stream requirements and prior to 1 July 2017.
 
Please note that this checklist is not intended to be relied upon as a substitute for legal or other professional advice. Obviously there are a number of factors that would affect a decision to lodge an ENS/RSMS application and it must be made on a case by case basis in conjunction with our advice. 
 
We appreciate that the changes that have now been introduced and for further implementation over the coming months are significant and will have an impact. 
 
Fragomen will continue to monitor the situation further and will work to ensure the Department of Immigration understands the potential ramifications of the proposed changes.