August 2016: The importance of proving “Genuine position” under the 457 visa stream
The Department of Immigration and Border Protection (‘DIBP’) has released a document addressing key statistics and trends in the subclass 457 Temporary Work (Skilled) visa programme for 2015 – 2016 to 31 March 2016. As at 31 March 2016, the size of the subclass 457 program had decreased compared to the same period last programme year. Between 2015-16 and 2014-15 there was a decrease of 1.9% of primary applications lodged. For the same period, there was a more significant decrease of 12.6% of primary visas granted.
These key figures would indicate that the DIBP are refusing to grant a greater number of 457 visas. This can be attributed to the changes in policy that were introduced across the 2015-16 period, specifically the need for a sponsoring employer to address whether the role the foreign national will be taking up is considered to be a ‘genuine position’.
Whilst the need to address the ‘genuine position’ criteria was introduced on 1 July 2015, the DIBP have only recently extended its immigration policy on the matter, effective 1 July 2016. This policy expansion was a direct result of the confusion that the initial policy wording caused across the immigration industry, within the DIBP and immigration advisory profession alike and is directly related to inconsistent decisions and to the higher rate of 457 visa refusals received.
On the 27th of July 2016, Santa Fe Immigration team members attended the NSW DIBP 457 Roadshow at which senior DIBP officials presented. The DIBP officials acknowledged the training that was being carried out for all their 457 assessment staff on the new policy surrounding the ‘genuine position’ criteria and to reinforce that the intention of the 457 programme is only used to address temporary skills shortages. The new policy allows the DIBP the ability to refuse a nomination if there are indicators that a semi-skilled position had been ‘dressed up’ to appear more skilled in order to facilitate a visa for a person or if it appears that the position has been created for the purposes of a migration outcome only. The requirement is not that the position itself is ‘genuine’ or ‘needed’ rather that the position exists and also is what it purports to be.
Given the expansion in immigration policy, it will become even more necessary for sponsoring employers to lodge complete applications including submission that address the ‘genuine position’ criteria upfront. The Santa Fe Immigration Services team will be guiding its clients on the more detailed requirements and what is required to satisfy this criteria. If you have any questions about how the new immigration policy may affect your applications, please feel free to contact WridgWays.
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