Hi John,

I am a qualified accountant looking at applying for a permanent skilled migration visa. I see there are options for state-nominated or independent visas.

Is there any advantage in applying via state nomination? Which is the better option?

Libby McFadden

Libby,

July 2012 saw the introduction of the Skill Select System and major changes to the rules around the points-tested independent and state-nominated visa system.

The Skill Select System now requires applicants to have at least 60 points to make an “expression of interest” (EOI) application for their preferred visa

Some positives for state nomination are that an extra five points are available for the nomination, this in itself may be critical to some applicants meeting the 60-point minimum

Also, lodging an EOI with state nomination approval means that so long as you have at least 60 points, the Department of Immigration and Citizenship (DIAC) invites you to apply for the visa right away. This is a real advantage if you are in Australia on a visa that’s expiring soon or wish to move here in the shorter term.

One possible negative is that you must commit to living in the nominating state for the first two years of the visa, so research your chosen state well.

New South Wales is sponsoring accountants and has not imposed any additional criteria over and above DIAC requirements.

Other states may have specific requirements such as minimum or specialised experience and sometimes look to see you have access to significant relocation funds.

Anyone lodging an EOI without a state government nomination has to wait for the DIAC invitation to apply for the independent stream visa.

The invitation is based on the highest point-scorers in the various occupational categories.

Every month, DIAC sweeps the expressions of interest for an independent visa, picking the highest point-scorers first.

Although the independent system favours high point-scorers, recent DIAC reports show many EOI applicants with 65 points or above being picked to apply for visas.

This pick system can mean waiting several months to find out if you will be invited to apply for a visa and unlike the state nominated applicants, there is no guarantee of receiving an invitation to apply for a visa.

To make the free EOI application a migration skills assessment and English language test are needed as these determine the points score and eligibility.

So although there is no fee to make the EOI, you will have a significant cost to get to the point of EOI.

The good news is that once invited to apply for and pay for the visa, DIAC processing is reasonably quick at about four to six months.

Bridging visas are also granted to anyone applying for the visa from within Australia.

Be prepared, getting the required skills assessment can take from four weeks to four months depending on your occupation.

Also allow four to six weeks to obtain English language test results.

Understanding how your personal profile meets the points and eligibility is critical so consider asking a registered migration agent for a detailed personal assessment before starting any of these applications.

Send your visa questions to visability@irishecho.com.au

Dear John,

I lodged a partner visa application back in July and am still waiting for it to be processed. I am on a working holiday visa and it’s about to expire so I’ll be on my bridging visa from next week. Can you tell me how long the processing should take and will the bridging visa last until then?  I’ve heard the bridging visa rules have changed recently, I’m a bit confused how it all works.

Andrew M

Dear Andrew,

The Department of Immigration and Citizenship (DIAC) recently issued an advice stating that it currently has a large backlog of partner visa applications, and to expect processing in Australia to take around 12 months.

When a partner application is lodged in Australia, you are granted a bridging visa, typically a “Bridging A” that allows you to stay until a decision is made on the new application.

There is no specific time limit on the Bridging A visa, and remember it only comes into effect when any current visa expires.

The Bridging A normally carries the same work rights as the visa you previously held, so for example on a Working Holiday Visa (417), there is a six-month work limit with any one employer, or on a sponsored 457 visa you can only work with the sponsoring employer.

However, DIAC have just made some positive changes to the bridging visa rules for onshore partner and parent visa categories.

The changes mean that Bridging A visas issued from November 24, 2012, will have nil work restrictions.

This is great news for anyone making a partner or parent visa application now.

However , for applications made prior to November 24 it’s not quite so simple.

DIAC are advising that applicants who currently hold either a Bridging visa A or B with a work restriction condition can apply for the grant of a replacement bridging visa A or B with nil visa conditions.

So if it looks like your partner/parent visa application is going to take some time to be processed, it’s probably worth looking to apply for the new version “nil restriction” bridging visa.

So much for the DIAC policy of simplifying visa rules!

It seems this rather silly situation could have been avoided by making the new bridging visa law retrospective.

Anyone making a new visa application while on a sponsored visa or a student visa should take careful note that it is important to maintain your visa status while waiting for processing.

Cancellation of a student visa or sponsored 457 visa for non-compliance can lead to the cancellation of any bridging visa held, and thus the potential to become unlawful and in turn negatively affect the outcome of the new visa application.

For complex visa issues, consider seeking professional assistance by asking an experienced registered migration agent for help.

Send your visa questions to visability@irishecho.com.au

Dear John,
I’ve been here on a student visa for six months and working part time as a metal fabricator. The owner of the place I’m working for wants to sponsor me so I can work for him full time. He has sponsored people before but they weren’t on student visas. Can I be sponsored?
Gerry McAuley

Dear Gerry,
Yes, it is possible to be sponsored by an employer and move from a student visa to a sponsored 457 work visa.

You need to have qualifications or at least three or four years’ experience in your trade to meet the sponsored visa requirements. You also need to check the student visa grant email to ensure there are no conditions that prevent lodging another visa application in Australia.

This would be unusual on a student visa granted to a Irish-UK passport holder but check nonetheless; or ask a registered migration agent to check the status for you.

For a temporary sponsored 457 visa, if the employer is already an approved sponsor, the employer will need to lodge a nomination application with immigration.

You can then lodge the 457 visa application.

You need to maintain your studies in line with the student visa while you wait for processing.

Having a student visa cancelled for non-compliance could jeopardise any new visa application.

You can start working full time for the employer when the sponsorship visa is granted or if the study course finishes before the new visa is granted.

When the sponsored 457 visa application is lodged you get a bridging visa that comes into effect only when the student visa expires.

At this time, if the new visa application is still not decided, because your study course is no longer in session,  you can work full time on the bridging visa until you get a decision.

The Employer Nomination Scheme (ENS) for permanent residence has a different set of rules for student visa holders.

To be eligible to lodge an ‘onshore’ ENS visa application from a student visa the student visa holder must have successfully completed at least diploma level studies. So, if you are halfway through a diploma course you might need to finish the course first.

Alternatively, the offshore version of the ENS programme does not have the same rules. So long as you meet the other eligibility criteria, you can apply for the offshore version while ‘mid-student visa’. As it is the offshore version, you will need to leave Australia for the visa to be granted. This may mean departing for a week or so.

These are complex visa categories; permanent visa applications have particularly high visa application fees and skills assessment costs, so consider consulting a registered migration agent for a full assessment of your situation before committing your hard earned dollars.

Hi John,
My employer in Perth is looking at sponsoring me and I’ve heard that immigration is giving regional sponsorship applications the fastest processing. My working holiday visa expires in December. Can I get sponsored by then or is there a better way?
Peter F

Dear Peter,
In July this year the Government added Perth as an eligible area for the Regional Sponsored Migration Scheme (RSMS) and as a regional area for family sponsored applications through the regional General Skilled Migration (GSM) programmes.

A decision-ready RSMS application could be processed in around two months from lodging but allow three to four months to prepare the application.

If you can’t get an RSMS application prepared before your visa will expire, you can lodge this from outside Australia. If you prefer not to leave Australia you may want to look at a temporary sponsorship on a 457 visa as a faster alternative due to the shorter preparation time needed.

When lodging an onshore application before your current visa expires, you will get a bridging visa that allows you to say in Australia until you get an answer on the application.

RSMS is the regional version of the more widely used Employer Nomination Scheme (ENS). The rules and criteria are a little different.

Under RSMS the employer does not need to meet any training criteria but does have to offer a job that’s an occupation on the Skilled List and the job must be available for at least two years. The visa applicant must agree to stay in the position and the regional area for at least two years.

The employer’s nomination has to be approved by a local regional certifying body before the applications can be lodged with Immigration. Each body has slightly different criteria so check carefully. See http://www.immi.gov.au/skills/regional-certifying-bodies.htm.

The visa applicant needs to have relevant qualifications for the job, which has an Australian equivalent trade, diploma or higher qualification.

There is no requirement for work experience for this visa but there will be a work experience requirement to meet when getting the necessary migration skills assessment.

Where an occupation needs licencing or registration, the licence needs to be in place or obtainable without further training at the time you apply for the visa.

Check for licensing and registration for specific occupations at http://www.immi.gov.au/asri/.

All areas of Australia are covered by RSMS except Brisbane, Gold Coast, Newcastle, Sydney, Wollongong, and Melbourne.

Generally, applicants under the RSMS need to be under 45 years of age, and have functional English.

The age, English and skill requirements may be waived if the applicant can demonstrate that exceptional circumstances apply. An employer can also ask approval to waive the skill requirement for positions that are so unusual or highly specialised that the employer is unlikely to find anyone with the necessary formal qualifications.

Waiver applications are particularly complex so consider consulting a registered migration agent for a full assessment of your situation before committing your hard earned dollars.

Find an agent at http://mia.org.au/

Passport to employment

Dear John,
I am a 43-year-old with more than 20 years’ experience in construction business and construction project management. I am in Ireland and seeking an employer for work sponsorship to Australia, preferably in Perth, but open to any location. So far I have not had any luck. Is there any way I can get a sponsor?
JV

Dear JV
With more than five years’ experience in construction project management, it is certainly possible to be sponsored by an employer on a temporary 457 work visa. These visas are for up to four years at a time. It is possible to move to a permanent visa from a 457 visa at a later stage.

There is no age limit for temporary 457 visa applicants. Currently, employer nomination for permanent residence the age limit is 45, unless exceptional circumstances apply.

If you have formal qualifications in your field, you could look to get migration skills assessment in your occupation. With a skills assessment and at least three years’ post qualification experience, an employer has the option to nominate you directly for permanent residence.

This may also give you an edge when seeking a position as some employers will be more open to permanent nomination.

Check any requirements for registration or licensing for your occupation. Each Australian State has different requirements; see http://www.immi.gov.au/asri/a-z.html

The key is in finding a suitable employer. Employers need to apply for approval as a sponsor or nominator. This involves meeting a number of requirements, often needing them to provide evidence of, or commitment to, training their Australian staff.

So, in addition to choosing you for the job, your employer needs to be willing and able to make their own applications to assist you secure the visa.

To convince an employer to go the extra yards here, applicants should be prepared to travel to Australia to meet prospective employers face to face.

A well-written CV with copies of work references and qualifications is essential.  Applying directly to employers will have a higher chance of success; employment agencies are often unwilling to present applicants who do not already hold a visa with work rights.

Consider seeking employment in Regional Australia, that’s all areas of Australia except for Brisbane, Gold Coast, Newcastle, Sydney, Wollongong, Melbourne or Perth. See http://www.immi.gov.au/employers/rsms_postcodes.html

The Australian Government is currently giving top priority to Regional Sponsored Migration Scheme (RSMS) applications. This is a permanent visa where the requirements for employers are lower. A local government certifying body must approve the job offer and the job must be full time in a regional area for at least two years.

The visa holder must commit to living in the regional area and to working in the occupation for at least the first two years. See details at http://www.immi.gov.au/skilled/skilled-workers/rsms/

Consider seeking a full assessment of your qualifications and experience from a registered migration agent before starting any application. Find an agent at http://mia.org.au/

Dear John,
I am in Australia on my second-year working holiday visa. I am working at formwork carpentry. I have lots of site experience but no papers. I have two uncles that are residents of Australia, is it possible for them to sponsor me? I don’t want to go home!
Paddy Joe

Dear Paddy Joe,

Your options to look at skilled visas will depend on your experience in formwork carpentry.  Under the Australian Standard Classification of Occupations, formwork carpenter is a specialisation of carpenter. With at least three years’ experience as a formwork carpenter it is possible to be sponsored by an employer on a temporary work (457) visa.

From July 1,2011 sponsoring employers must pay a market rate salary above $49,330 a year.

With more than four years’ experience it may be possible to have your skills assessed by a Registered Training Organisation (RTO) to gain an Australian Qualification Certificate III in your trade.

To apply for a permanent visa directly a migration skills assessment is needed via Trades Recognition Australia. As a first step to having your skills recognised, do a self-assessment with an RTO or at the government’s Trade Set website: http://www.tradeset.com.au/

Be honest with your self-assessment. This step is free, the next stages will cost money. Relatives can be a temporary or permanent employer-sponsor, provided their business has a genuine need for your occupation.

Relatives such as uncles and aunts can also sponsor applicants for the points tested skilled sponsored migration (176) visa. However following migration law changes on July 1, 2011, no points are awarded for sponsorship by a relative. So for this visa type it would appear a relative can no longer add value.

Consider seeking a full assessment and strategy from a registered migration agent before starting any application. Find an agent at http://mia.org.au/

Dear John,
My husband and I are here on a student visa for two years. I’m the student. Our visa allows us to work 20 hours per week when my course is on and any hours during the three months a year holidays. As a heavy goods vehicle driver my husband is struggling to find part-time work. Is there a way to extend his work rights?
Gabrielle

Dear Gabrielle,

Student visas for vocational study such as the popular business or fitness certificates and diplomas (572 visas) or bachelor degree courses (573 visas) have condition 8105 that limits work to 20 hours a week during term time. There are no restrictions on work during the holiday time or after the course finishes. This condition cannot be changed and breaking the work rights could result in your visa being cancelled.

Family members of students who have started a masters or doctorate degree by research can work unlimited hours. Research students can work unlimited hours if they are a PhD or masters student and have submitted their thesis for marking.

Dear John,
I have been employing Peter, an Irish lad, on a working holiday visa, for three months. He has asked me to sponsor him so he can keep working here. I’m keen to keep him, but my business hasn’t sponsored anyone before. We are a small business with four employees so I’m not sure I can be a sponsor? Can I sponsor, and what do I need to do to keep Peter?
PJ

Dear PJ,

Employers’ top two options to retain overseas staff are temporary sponsorship via Standard Business Sponsorship (SBS); and nomination for permanent residence via the Employer Nomination Scheme (ENS).

Temporary sponsorship visas are becoming increasingly popular with a 39 per cent increase in applications this year and more than 70,000 people currently on 457 visas.

There are three parts to the process.

Firstly, the employer applies to be an approved sponsor. Secondly, the employer applies for the position to be approved.

Thirdly — the final step — the employee applies for the 457 visa.

Approved sponsors need to agree to a number of obligations that are aligned to Australian Fair Work laws.

As a first step in deciding to proceed, employers should be comfortable with the obligation commitments. See them at http://www.immi.gov.au/skilled/skilled-workers/sbs/obligations-sponsor

To approve a sponsoring employer, Immigration look to see that the business has a commitment to hiring local labour and the financial capacity to pay for a sponsored employee.

The size of a business is not in itself a deciding factor. However, businesses need to show a track record of training their Australian staff. So to meet the training requirements a business is likely to need at least one Australian resident employee who is receiving training.

The training benchmark immigration use means showing that your business has spent the equivalent of at least 1 per cent of payroll on training in the 12 months before applying.

For a new business, less than 12 months old, a detailed training plan can be used. Training should continue during the sponsored visa period.

Employers then need to look at the position. The duties of the job must align with the duties of an occupation on the Government’s eligible list for 457 sponsorship; available at http://www.immi.gov.au/skilled/skilled-workers/sbs/457occupations.pdf

The salary or wage offered must be at market salary rate. This means paying the overseas employee at least the same rate you pay Australian staff in the same position. Or where  no Australian is doing the same job, paying a market rate in the area the business is located.

To be approved, the base rate or guaranteed earnings must be above $47,480 excluding bonus payments or superannuation.

For the final part, the employee needs to have the appropriate level of work experience or qualifications to match the job. This will vary depending on the job offered, usually at least three or five years relevant work history; or a trade or diploma/degree qualification

If you can tick all these boxes, apply as soon as is practical, although Immigration is working on improving time frames, processing can take two months or more.

Consider seeking a full assessment from a registered migration agent before committing. Find an agent at http://mia.org.au/

In this week’s Visability, we hear that overstaying your visa should be avoided at all costs. And somebody writes in to ask if regional work can be done after the expiry of a first working-holiday visa.

Dear John,
I have two months left on my working holiday visa but my boss won’t sponsor me. I don’t want to overstay but with lack of work at home I don’t know if I have any choice. I’ve heard that you can get a bridging visa through the Community Status Resolution Service if you’re here illegally. What do you advise?
SP

Dear SP,
Overstaying a visa should be avoided at all costs. Once your visa expires, you become unlawful; you have no work rights and no access to health services. You can be deported and become subject to lengthy bans on returning to Australia. There should be some alternative options, so it’s better to plan ahead.

Don’t wait until your visa is about to expire. Seek early professional advice from a registered migration agent on your options to extend or change visas and set a budget to meet the cost of applying for another visa.

The Community Status Resolution Service (CSRS) is part of the Department of Immigration compliance section. If you become unlawful, contacting CSRS will most likely result in you being issued a Bridging E visa for only a week or two to allow you to leave the country.

Don’t use this as a strategy to stay on past your visa expiry. For anyone who has already overstayed and needs to leave Australia, a bridging E visa allows departure without nasty scenes at the airport. However, the CRSC are not independent migration advisors so you may not be provided with a comprehensive assessment of options.

The CSRS/DIAC website says “We mainly work with people who hold a Bridging E visa (BVE). A BVE provides a temporary lawful status while the person organises their departure from Australia.”

And later: “We also help people who have overstayed their visas, as long as they are willing to come and talk to us and work with us to resolve their immigration status.”
“Resolve their migration status”, for most, will typically mean leaving Australia. People who have overstayed visas have very limited options, but should consider seeking advice from a registered migration agent. Find a registered migration agent at http://mia.org.au/

Hi John,
I started my working holiday visa in October 2010 but had to leave as I was sick. I’m coming back before my visa expires and plan to apply for a second year visa. Can I do some of my regional work past the expiry of my first visa? What is the processing time for a second visa?
Aoife

Hi Aoife, time spent outside Australia during the 12 month WHV cannot be recouped. The first visa will expire 12 months after you first entered Australia. Your regional work must be completed before the first visa expires.

If applying in Australia you must apply before the current visa expires but you can apply after you leave Australia. Just don’t overstay the first one. If the new application has all the necessary documents, processing should take a few days. http://www.immi.gov.au/visitors/working-holiday/417/

Dear John,
I lodged my 176 skilled migration visa on March 24, 2011. I have state sponsorship as an electrician for Western Australia and the application is decision-ready. I am hoping my 176 visa processing won’t take too long as I’m in priority group 2. I heard someone got a case officer within four weeks. Is this how quick they are processing at moment? How long should it take to get a case officer?
Shane D, Perth

Getting a visa application allocated to a case officer and application processing times are two different subjects.

The Department of Immigration and Citizenship (DIAC) gives state-sponsored visa applications priority 2. DIAC’s stated processing time for priority 2 applications is “in less than 12 months”. This priority processing time has been in place since July 2010.

Time frames to ‘allocation to a case officer’ vary depending on the visa type and changes very regularly.

Current processing update emails from DIAC state that priority 2 applications are being allocated to a case officer within two weeks of lodgement. This is great news as you can expect processing to commence quite soon after allocation.

Based on this information you would expect to have a case officer allocated before the end of April. If you do not, I recommend a follow up email/online inquiry to DIAC by you or your migration agent.

Once you have a case officer, there is no definite time frame to get a decision on the application. The processing time can be affected by the number of applications the case officer is dealing with, whether the case officer requires more information and, how long you take to respond.

In theory a decision-ready application would be processed quickly, but DIAC still needs time to do background checks. For an application to be ‘decision ready’ you will need to have completed and supplied DIAC with your health reports and police reports as well as having supplied strong evidence of all your work history.

Based on recent experience I would estimate you may get a decision in about two to three months from the time the application is allocated to a case officer.

Many state governments did not produce their skilled lists (State Migration Plans) until late in the financial year, this delayed sate-sponsored applications being lodged or re-prioritised.

It now appears that DIAC is stepping up processing on these and other skilled migration visa applications, most likely, as they need to meet the government’s 2011 migration targets by June 30.

Readers applying for skilled independent visas should consider the longer processing times involved before doing police and health checks as these reports are only valid for 12 months.

Consider seeking assistance from a registered migration agent to help you decide on whether you should prepare a decision-ready skilled visa application: http://mia.org.au/

Skilled migration visa applicants can get processing updates by sending a blank email to gsm.processing@immi.gov.au

Dear John,
I’m a 32-year-old Irish chef on a working holiday visa. I have 15 years’ experience and want to apply for an independent skilled-migration visa. When should I apply and how much does it cost? How long does it take to come through?
Can my aunt in Melbourne sponsor me?
Glynnis

Dear Glynnis,
To apply for an independent skilled visa you must have qualifications and experience in an occupation on the Skilled Occupations List (SOL) Schedule 3.

Chef is not currently listed on the SOL Schedule 3 so an independent or family sponsored skilled visa application is not possible.

The good news is that chef is listed on the SOL Schedule 4 eligible for state sponsored skilled visas.

Victoria is currently sponsoring chefs. As you have family there, this may be a strong option.

As part of a state sponsorship application process, the state authority will assess if you have a genuine intention to live in the state. As such, anyone on a working holiday visa seeking state sponsorship should spend as much time as possible in the state of choice, investigating accommodation and employment options.

Keep records of any time, employment and inquiries in the state and use this in the application.

Don’t delay your application as the state-sponsorship positions have quotas. When the quota is full the occupation is closed off until the following year’s state migration plan quota is released.

Before applying for state sponsorship, a migration skills assessment is needed, for chefs. This means an application to Trades Recognition Australia, see www.deewr.gov.au/Skills/Programs/.

Expect the skills assessment process to take four to six weeks, and then allow another 12 weeks for Victoria to process the state sponsorship.

Immigration gives state-sponsored visa applications priority two  status and processes them in lerss than 12 months.

The preparation time frame means you would be applying for the visa under the new points system being introduced in July 2011.

Under the new system, 65 points are needed to apply for a skilled visa. So in this option at least 60 points are needed with an additional five points allocated for state sponsorship.

A very close and accurate assessment of your qualifications and work history is needed to ensure you would meet the point’s eligibility.

This should be done prior to spending money on skills assessments.

It is very likely Irish and UK passport-holders will need to undertake an English test (IELTS) to gain critical points to meet the points target. See www.ielts.org

TRA assessments for chefs cost $300. The immigration fee for the 176 visa is $2,575.

Victoria does not charge a fee for state-sponsorship applications.

As a chef, it is possible to be nominated for permanent residence by employers via the employer nomination scheme (ENS). Sponsorship by employers on temporary 457 visas is also possible.

Consider seeking assistance from a registered migration agent to help you assess your points for skilled visa applications. http://mia.org.au/