TSS VISA (TEMPORARY SKILL SHORTAGE VISA)
From 18 March 2018, the 457 visa will be abolished and replaced with the TSS visa (Subclass 482). The TSS visa will be comprised of a Short-Term stream and Medium-Term stream:
You must be sponsored by an approved business. A business can sponsor someone for this visa if they cannot find an Australian citizen or permanent resident to do the skilled work.
You can be in or outside Australia when you lodge your application.
Medium TSS vs Short TSS
|Medium and Long Term TSS Visa (482)|
|Short-Term TSS Visa (482)|
Eligibility criteria for both TSS streams:
- Labour market testing (LMT): LMT will be mandatory, unless an international obligation applies.
- Minimum market salary rate: Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold requirements.
- Character: Mandatory penal clearance certificates to be provided.
- Workforce: A non-discriminatory workforce test to ensure employers are not actively discriminating against Australian workers.
|Businesses with turnover of less than $10 million per year will be required to make)|
|Businesses with turnover of $10 million or more per year will be required to make:|
- If you are granted a 457 visa after 18 April 2017 off the MLTSSL list, it can be granted for 4 years. You will be able to be apply for a permanent 186/187 visa after 3 years on a 457 visa if that company decides to nominate you.
- Can I apply for 186 Transition after applying being on a 2 year TSS Visa + 1 year TSS visa: There will be one (only) further extension allowed after that for another 2 years. You will not be allowed to apply for a permanent 186/187 visa under that occupation if it is on the STSOL.
- I am over 50 years of age. Can I still apply for this visa? Yes, there is no age limit for this visa type.
- Transition from 457 to TSS, limit of two visas – a visa holder transitioning from a current 457 visa to a TSS visa, will still be eligible to apply for a second TSS visa onshore.
Some consequences of this:
- Occupations such as cook and restaurant manager are on the STSOL list. While you can still be sponsored for 2 years by a restaurant on the 457 visa and gain another 2 year extension, you can no longer apply for a permanent visa unless it is added to the MLTSSL list for you being in a designated regional area.
- Retail manager is still available in regional areas for the 187 visa at the moment. But from March 2018 this will not be the case, as this occupation is not on the MLTSSL list.
- Most student graduates will not be eligible for temporary or permanent company sponsorship after March 2018 as you require at least 2 years FULL-TIME WORK EXPERIENCE.
As per the Government’s 18 April 2017 announcement, TSS visa applicants will be required to have worked in the nominated occupation, or a related field, for at least two years. Work experience related caveats that apply at the nomination stage for the subclass 457 visa will not apply to TSS nominations.
Policy settings will be outlined in the TSS visa Procedural Instructions that will be published on the implementation date. Interim guidance for agents is provided below:
- Work experience will be considered flexibly in the context of the nominated occupation and industry practices
- The work experience should have been undertaken in the last five years and would need to be calculated in terms of full time work. Part time work experience may be considered
- Experience gained as part of the research components of a Masters and/or PhD may be considered as work experience for relevant occupations, such as medical and research occupations
- Experience gained through clinical placements and internships may be considered as work experience for medical practitioners, including Resident Medical Officers (RMOs)
- The internship component of the Professional Year Program may be considered as work experience for relevant occupations
- Performance experience gained while studying may be considered for applicants with a performing arts occupation.
Repeat TSS visas
In general, all applicants for a TSS visa (i.e. primary and secondary) can either be inside or outside Australia. If the application is for a Short-term (ST) stream visa, however, the primary visa applicant must be offshore if all of the below apply:
- they have held more than one ST stream TSS visa
- they were in Australia when the application for their most recent TSS visa was made and
- this requirement would not be inconsistent with any international trade obligation (ITO).
Holders of two ST stream TSS visas in a row (where the second application was made in Australia) can apply for a further visa TSS ST stream visa offshore. They should, however, be aware that their immigration history may be relevant in terms of whether they are considered to have met the Genuine Temporary Entrant (GTE) requirement for this visa stream. Further guidelines on this matter will be provided in the procedural instructions on TSS visa applications.
Condition 8607 is a new condition that it is anticipated will apply to all primary TSS visa holders. It is similar to condition 8107, which currently applies to subclass 457 visa holders. Subject to final drafting of the regulations, however, condition 8607 will require TSS visa holders who wish to change occupation (as opposed to employer), to have a new nomination approved and a new visa granted before they start work in a new occupation.
TSS Visa Update March 2018
Applicants are reminded that the Government is introducing the TSS visa in early March 2018 to ensure businesses can access the critical skills they need to grow, where no skilled Australian worker is available. There will be three options available under this new visa program:
- Short-term stream – this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL)1 for a maximum of two years (or up to four years if an international trade obligation applies)
- Medium-term stream – this 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)*1 for up to four years, with eligibility to apply for permanent residence after three years
- Labour Agreement stream – this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of 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.
1Employers in regional Australia will have access to a broader range of occupations when the TSS visa is introduced.
At the time of lodging a TSS nomination application, employers will need to select an employment period of up to:
- 1 year or 2 years for the short-term stream (unless an international trade obligation applies); and
- 1 year, 2 years, 3 years or 4 years for the medium-term or labour agreements stream.
Understanding the transition from subclass 457 to TSS
Employers who are already approved standard business sponsors for subclass 457 will be able to sponsor skilled overseas workers under the TSS visa program. It is, however, important to understand transitional arrangements that are expected to be in place for nomination and visa applications so that they can plan accordingly with their clients and not wait until the last minute to lodge applications.
Subject to final approval of transitional arrangements, it is expected that:
- 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, however, effectively become ‘redundant’ as subclass 457 nominations cannot be linked to TSS visa applications, even where the nomination has already been approved (subject to the specific scenarios below).
Arrangements will be put in place to ensure that such ‘redundant applications’ can be finalised and/or withdrawn with a refund of the fee provided. To avoid delays or unnecessary additional processing steps, applicants, however, strongly encouraged to:
- lodge complete subclass 457 nomination and visa applications together before the end of February, or
- postpone lodgement until commencement of TSS.
- Secondary visa applicants (of 457 visa holders or pending 457 visa applicants) will be able to lodge a subsequent dependent TSS application and if they meet requirements, will be granted a TSS visa linked to their family’s subclass 457 visa/nomination application. 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.
- Subclass 457 visa holders who wish to change occupation or need a new visa (for example: with longer validity), they will, however, need to lodge a new TSS visa application referencing a new TSS nomination application.
Consistent with previous Government announcements, more robust LMT arrangements will be in place for TSS – with occupation exemptions to LMT no longer available. This is to ensure that employers try to find a suitably qualified Australians before they can seek to employ an overseas skilled worker on a TSS visa.
We understand that employers would like as much notice of these new arrangements as possible to ensure that they can amend their business practices where required ‘in advance’. It is not, however, expected that employers will have problems meeting these new requirements given that:
- sponsors are already expected to test the local labour market before utilising the subclass 457 program (except where international trade obligations apply) and
- the requirements will be able to be met by employers who advertise key job details, in English, via a channel that has sufficient coverage (for example: national recruitment website such as jobactive.gov.au, national print media).
Salary and conditions arrangement for TSS
As per current arrangements, sponsors seeking to employ an overseas worker at a salary of under AUD250,000 will need to provide additional information to demonstrate that they are going to pay the market salary rate to ensure that overseas workers are protected and the local labour market is not undercut.
Changes to some salary and conditions provisions are, however, planned to:
- clarify provisions in this complicated area, with feedback received that terms such as ‘base rate of pay’ and ‘guaranteed annual earnings’ are misunderstood
- ensure that salary arrangements more adequately reflect the different payment arrangements in place for different industries
- ensure that overseas workers are protected and that market salary rate information cannot be inflated by unscrupulous employers, and
- ensure that sponsors understand that they must comply with Australian employment laws as well as immigration requirements.