EIG Week in Review (Sept 12, 2014)


  • Australia Releases Comprehensive Report on 457 Visa Program
  • U.S. Department of State Eliminates “Administrative Processing” Attorney Email Inquiries
  • UPDATE:  Irish Visa Processing Delays Expected  Due to Immigration Reforms
  • Australia and Spain Agree to Reciprocal Work and Holiday Visa Program
  • U.S. Consular Services Limited in Australia 

Australia Releases Comprehensive Report on 457 Visa Program 

Australia’s Minister for Immigration and Border Protection just released a report on the Australian Temporary Work (Skilled) Visa (subclass 457) program, including recommendations to streamline the process for the 457 scheme.  Currently, the 457 visa allows skilled workers to work in Australia for up to 4 years and also allows the 457 visa-holder to bring his/her family to work or study in Australia.  In order to obtain the 457 visa, the applicant must be sponsored by an approved business entity.  The sponsor must also lodge a nomination for the proffered position.

On February 25, 2014, the Australian Assistant Minister for Immigration and Border Protection announced that a four-person panel had been formed to prepare a report over the 457 program. The panel was tasked with recommending a system that operated in Australia’s national interest.  In particular, the panel was required to recommend  a system that would be “sound and resistant to misuse (the “integrity” goal) and, at the same time, flexible and able to respond quickly to economic and business changes (the “productivity” goal).”

The recommendations included in the report can be summarized as follows:

  • Occupations List:  Retain the Consolidated Sponsored Occupations List as a list of occupations at Skill Level 3 and above
  • Oversight Board:  Replace the existing Ministerial Advisory Council on Skilled Migration and establish a new tripartite ministerial advisory council tasked with reporting to the Australian government on skilled migration issues
  • Labor Market Testing (LMT):  Abolish the LMT requirement
  • Market Rate:  Adjust the market rate threshold to align with position income levels
  • Income Threshold:  Retain the current Temporary Skilled Migration Income Threshold rate but allow for a 10% variance and prevent any additional increases until properly reviewed within the next 2 years
  • Training Contributions:  Replace current training benchmarks with an annual training fund contribution based on each 457 visa-holder, with scaled contributions according to the size of the business sponsor
  • English Language Requirement:  Amend English language requirement to an average score, allow for case-by-case review to meet these requirements, and expand list of exempted nationals
  • Sponsorship Responses Prior to Denials:  Allow sponsors to provide additional information before a nomination may be refused
  • Skills Assessments:  Government research geared toward methods that would allow for skills assessments to more appropriately identify an applicant’s experience
  • Sponsor Approvals:  Increase Standard Business Sponsor approval validity to 5 years and increase validity for start-up businesses to 18 months
  • Fees:  Review current fee structure, with particular focus on secondary and visa renewal applicants
  • Transparency:  Improve accessibility and content of 457 visa-holder rights and obligations
  • Efficiency:  Establishing a streamlined approach to the 457 visa program within the existing scheme
  • Labour Agreements:  Improve Labour Agreement negotiation times and increase accessibility for additional industry sectors
  • Change of Status Restrictions:  Require 457 visa holders to work for at least 2 years in Australia before transitioning to the Employer Nomination Scheme or Regional Sponsored Migration Scheme
  • Compliance Training Programs:  Allocate more resources to develop programs aimed at assisting sponsors in understanding compliance with ongoing obligations under the 457 program
  • Compliance Model:  Enhance the department’s compliance model and prioritize monitoring
  • Inter-agency Cooperation:  Increase inter-agency cooperation and collaboration to minimize burden on employers
  • Fair Work Ombudsman:  Greater information sharing and involvement with the Fair Work Ombudsman
  • Monitoring:  Monitor Fair Work Commission decisions to identify instances of sponsor breaches or misrepresentation
  • Enforcement:  Allocate sufficient resources to enable the investigation and prosecution of civil penalty applications and court orders
  • Infrastructure:  Improve system frameworks to facilitate inter-agency collaboration

The complete 457 Program report can be found at http://www.immi.gov.au/pub-res/Documents/reviews/streamlined-responsive-457-programme.pdf.

U.S. Department of State Eliminates “Administrative Processing” Attorney Email Inquiries

Effective September 11, 2014, the U.S. Department of State will no longer field attorney email inquiries regarding administrative processing on behalf of visa applicants.  Visa applications are sometimes subject to “administrative processing” after the Consular interview process. Typically, this means that the Consulate is conducting additional background checks on the applicant.  A security clearance is typically required when the applicant’s name matches various U.S. government lists, prior visa problems such as overstays or denials, or criminal arrests or convictions.  Administrative processing may also be triggered by answers on the applicant’s DS-160 application, or based on the Technology Alert List (a list of sensitive technologies that have been identified as “dual purpose” technologies).

There is no set time frame within which the Consulate must complete the administrative process.  The processing time is at the sole discretion of the Consulate, and federal regulations do not allow for expedited processing.  Attorneys were historically allowed to make an inquiry to the Department of State in instances where an individual’s application had been subject to administrative processing in excess of 60 days.  However, pursuant to the State Department’s new policy, attorneys will no longer be able to make inquiries on an applicant’s behalf.

Applicants subject to administrative processing should be prepared for potential lengthy delays, as inquiries will no longer be addressed at the Department level, and Consular posts are often unresponsive regarding administrative processing inquiries.

UPDATE:  Irish Visa Processing Delays Expected  Due to Immigration Reforms

As an update to our previous report, due to the implementation of Irish immigration reforms, delays in employment permit processing are expected in the coming months. In light of residual delays from the transition, employers should allow for extra time when planning to transfer nationals from non-EU states to Ireland and may need to adjust start dates to account for the potential delays.  The good news, however, is that the application process should be streamlined and more efficient once the new system is fully implemented.

Australia and Spain Agree to Reciprocal Work and Holiday Visa Program

Although an implementation date has not yet been set, Spain and Australia recently entered into an agreement to provide reciprocal Work and Holiday Visas.  Australian officials hope that this expanding program will foster cultural exchange and benefit employers with global training programs between these two countries.

The Work and Holiday (Subclass 462) Visa allows individuals between the ages of 18 and 31 who are citizens of the partnered countries to visit and work in Australia for up to one year.  Australia currently has a Work and Holiday Visa arrangement with Argentina, Bangladesh, Chile, Indonesia, Malaysia, Poland, Thailand, Turkey, the U.S., and Uruguay.

U.S. Consular Services Limited in Australia

Throughout the month of November 2014, Australia will be hosting the Group of Twenty (G20) Leader’s Summit in Brisbane. Leading up to and during the summit, U.S. Consulates throughout Australia will limit appointments for Consular services. The U.S. Consulate has announced that it will prioritize U.S. citizen services, immigrant visas, and emergency non-immigrant visa cases during this time.

In light of the limited appointment availability, visa applicants and U.S. citizens requiring Consular services should apply well in advance in order to avoid delays in visa processing.