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This past week, a new law has been passed, Proclamation/Commencement of Act [F2013L01915]. This proclamation provides for the commencement of Schedule 2 of the Migration Amendment (Temporary Sponsored Visas) Act 2013 and it took effect yesterday, November 23.
The law also says that starting on the said date; labour market testing shall now be a pre-requisite to nominating an overseas worker for a subclass 457 visa.
The full details of this new act was uploaded in the Department’s website last November 18. There will be some exemptions on a couple of levels with engineers and nurses and their lists have been reviewed.
Below are the exemptions listed in the government’s website:
• The Minister is satisfied that a major disaster has occurred in Australia and the exemption is necessary or desirable in order to assist disaster relief or recovery; or
• The Minister has specified, by way of legislative instrument, the nominated occupation based on skill and occupational level – that is, the nominated occupation is within the ‘Skill Level 1’ or ‘Skill Level 2’ classification of Australian and New Zealand Standard Classification of Occupations (ANZSCO) and it is specified in a legislative instrument.
Last week, the government announced they will try to adopt "sensible approach to the implementation of new rules requiring employers to test the local labour market before seeking to employ an overseas worker on a subclass 457 visa".
In the announcement, Senator and Assistant Minister for Immigration and Border Protection Michaelia Cash stated that the labour market testing was a requirement of the Migration Amendment (Temporary Sponsored Visas) Act 2013. She also said that it was first introduced by the preceding government and was passed by the previous Parliament last June with no proper consultation.
Below are excerpts from her statement:
“The Abbott Government is committed to ensuring that the subclass 457 program acts as a supplement to, and not a substitute for Australian workers….
…the government fully supports the principle that Australian workers have priority, but to bind employers up in needless red tape will only stymie Australian business and cost Australian jobs over the long run. That is why in implementing Labor's labour market testing policy the government has adopted a sensible approach by exempting highly skilled occupations from the requirement.”
The Australian Department of Immigration and Border Patrol can put a variety of conditions on your visa, which limits what you can do in Australia. In this particular case, having the 8503 Waiver Condition (a.k.a “No further stay”) meant that while you are in Australia, you will not be allowed to apply for an extension; with the exception of a specific temporary visa and a protection visa. This condition, however, will not prohibit you from applying for any other visas once you are out of Australia.
The test that must be satisfied for the condition 8503 to be removed is set out in Australian migration law, it relates to satisfying the government that your circumstances have changed so significantly that 8503 should be removed;so that it will allow you to lodge a further visa to remain in Australia. If the 8503 application is poorly prepared or does not meet the prescribed test, the application is bound to fail. Applicant’s for the 8503 waiver should be aware that no bridging visa attaches to a 8503 waiver application. Often times, your visa will expire before a decision on the waiver application is received--meaning you will go unlawful if you do not depart Australia or develop another strategy to allow you to remain in Australia lawfully.
How To Request an 8503 Waiver Condition
An application for waivers should be done in writing and there is no prescribed form that you must use. Application should contain at the very minimum the following
The 8503 condition was made because the Australian government wants to stop Australian visa holders on applying for any other type of visas in the country.
With that, applications must be supported with detailed legal submissions addressing the law and circumstances of the case.