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There the announcement that the TSMIT, or Temporary Salary Minimum Income Threshold, will go up from 1 July 2023, from $53,900 to $70,000.
The TSMIT questions are going to start with the simple ones and get increasingly more complicated.

Watch the video below to have your questions answered:

Question 1:

I Holding a 482 visa granted in March 2022, with a salary of 55,000 and my Visa expires in March 2026. Will my salary go up to the new TSMIT of $70,000 from 1 July 2023?

A: Sorry to break the bad news, that for existing 482 holders your salary will not go up from 1 July 2023.

Question 2:

Do I have to lodge both my nomination and visa applications before 1 July 2023 if my salary is under $70,000?

A: No, the TSMIT is only a nomination requirement. As long as the nomination is lodged before 1 July 2023, the visa can be lodged after that.

Question 3:

Working holding the 482 visa since October 2020, my employer is planning to sponsor me for 186 temporary residence transition stream once I meet three years on the 482 in . I am a veterinary nurse* earning just above award $55,000, will the TSMIT apply to my new 186 TRT application?


A:  Your salary of $55,000 would not meet the nomination requirements for 186 TRT after 1 July 2023. Your employer would need to nominate a salary of at least $70,000. This may even extend to certain applications for 186 under the labour agreement stream.

A short-term occupation can access due to working 12 months between 1 February 2020 and 14 December 2021,
clause 8 of LIN 22/038 https://www.legislation.gov.au/Details/F2022L00340

Question 4

Will the income requirement for 491 visa holders, in terms of applying for a 191 visa, be subject to the TSMIT going up to $70,000?

A: The income requirement is to be provided by 191.222(3) which provide the Minister may, by legislative instrument, specify an amount. The Minister is yet to put a legislative instrument in place for the 191 visa. This means that there is a legislative vacuum or lack of details on what the salary amount might be. This lack of criteria could lead to any and many refusals being appealed to the AAT and courts and could ultimately cost the Australian government and taxpayers millions in cost. Not to mention all the lives put on hold and legal fees paid by those appealing. Let’s hope a legislative instrument is put in place soon. What is the saying - A stitch in time saves nine. If you would like to take some active steps to encourage the Department of Home Affairs to clarify the situation, then you could ask your local Federal Politician to contac the Minister of Immigration. 

Click here to acess the list of Federal Politicians

Work Visa Lawyers is doing what it can to encourage clarification on this issue. We have asked the peak professional membership body for migration professionals, the Migration Institute of Australia to raise the 191 salary issue. We have also directly emailed the Department of Home Affairs General Skilled Migration section to raise the 191 salary issue. Thanks for your questions. We will do further posts on the 191 visa requirements as soon as details become available. We do our best to bring all the latest updates and most relevant news for potential migrants.

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The 457 visa is the most popular employer sponsored work visa for overseas professionals and tradespeople to work in Australia. According to the latest Subclass 457 Quarterly Report for the period up to 30 September 2015, there were 14,370 subclass 457 visa applications lodged with the Department of Immigration and Border Protection (DIBP), out of which 13,240 applications were approved. This means that in the 1^st quarter of the 2015-16 subclass 457 visa programme year a total of 1,130 applications have already been rejected.

While there are various eligibility factors to consider from the employer, nominated position and visa applicant perspective, this article will focus on the application criteria of Labour Market Testing and Market Salary for the 457 Temporary Work Visa.

So what is Labour Market Testing?

Implemented in November 2013, the Labour Market Testing requirement tasks standard business sponsors to test the local labour market before hiring an overseas worker for nominated position.

The purpose of the Labour Market Testing is to ensure that available job opportunities are provided to the local workforce first before looking to sponsor an overseas individual to fill the role required.

What do you need to do to meet the Labour Market Testing Requirement?

Standard business sponsors need to record efforts and attempts to hire local Australian citizens or permanent residents. The recruitment activities need to be sufficient to justify that the local workforce cannot fulfil the requirements of the nominated position due to the lack of skills, qualifications or relevant work experience. Such recruitment efforts may include the posting of job advertisements, conducting interviews and tabulating the outcome of all applications for the advertised position.

Are there any exemptions to the Labour Market Testing requirement?

There are avenues for exemption from the Labour Market Testing. You can be exempt from Labour Market Testing for the following reasons:

Occupation Level

Occupations described by the Australian and New Zealand Standard Classification of Occupations (ANZSCO) as skill level 1 or 2

Skill level 1 occupations are occupations that require an Australia degree level qualification or at least five years relevant experience, which may substitute for the formal qualification.

Some examples of skill level 1 occupations include General Managers, Marketing and Advertising Managers, IT Managers, Farmers and Agricultural Managers, etc.

Skill level 2 occupations require an Australia Qualifications Framework (AQF) Associate Degree, Advanced Diploma or Diploma qualification or at least three years of relevant experience as a possible substitute for the formal qualification.

Some examples of skill level 2 occupations include ICT professionals such as Developer Programmers, Software Engineers, Business Professionals and Teachers.

However some skill level 1 and 2 occupations still require Labour Market Testing to be done. These occupations include positions in the engineering and nursing profession. You can refer to the list here. If you are nominating an occupation in these professions, you will need to provide evidence of Labour Market Testing.

International Trade Obligations

1. The worker you nominate is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, Korea or New Zealand.
2. The worker you nominate is a current employee of a business that is an associated entity of your business that is located in an Association of South-East Asian Nations (ASEAN) country (Brunei, Myanmar, Cambodia, Indonesia, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam), Chile, China,​ Japan, Korea or New Zealand.
3. The worker you nominate is a current employee of an associated entity of your business who operates in a country that is a member of the World Trade Organisation, where the nominated occupation is listed below as an “Executive or Senior Manager” and the nominee will be responsible for the entire or a substantial part of your company's operations in Australia.
4. Your business currently operates in a World Trade Organisation member country and is seeking to establish a business in Australia, where the nominated occupation is listed below as an “Executive or Senior Manager”.
5. The worker you nominate is a citizen of a World Trade Organisation member country and has worked for you in the nominated position in Australia on a full-time basis for the last two years.

When should I conduct the Labour Market Testing?

Labour Market Testing must have been conducted within 12 months before the lodgement of a 457 visa nomination. Evidence of Labour Market Testing must be presented at the time of nomination lodgement.

Market Salary and Equivalent Employment Terms and Conditions

Standard business sponsors are required to offer employment terms and conditions that are comparable to those offered to Australian citizens and permanent residents. This is required to ensure overseas workers are not being exploited for cheap wages or long work hours.

You can be exempted from demonstrating market salary rates if the proposed annual earnings of the worker is at least AUD 250,000.

You will need to show that the terms and conditions offered to the sponsored overseas worker are of the same wages and working conditions as an Australian employee. If there are no comparable Australian employees in a similar position, the standard business sponsor should refer to relevant industrial instruments such as modern awards to determine market salary and acceptable employment conditions. The Fair Work Ombudsman (https://www.fairwork.gov.au/) is a good reference to ensure acceptable employment conditions are in place.

Market Salary and the Temporary Skilled Migration Income Threshold (TSMIT)

Although a separate requirement, the Temporary Skilled Migration Income Threshold (TSMIT) is an important consideration when determining the Market Salary for a 457 visa application. The rules in relation to the TSMIT are:

• The market salary for the position must be greater than the TSMIT
• If the market salary for the position is lower than the TSMIT then you will not be able to sponsor an overseas worker for the position under the 457 visa programme
• You cannot pay an overseas worker above the market salary rate just to meet the TSMIT

The TSMIT is currently set at AUD 53,900.

If you need further information that is specific to your business, industry or situation, please contact us to find out more details on the 457 visa application requirements.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The DIBP does not clearly spell out the exemption to Labour Market Testing based on skill levels of the occupation. As such there have been instances where businesses paid thousands of dollars to agencies that provide Labour Market Testing services when it was not necessary. Occupations such as Software Engineers or Marketing and Sales Managers do not need Labour Market Testing due to their occupation skill level, but businesses have paid unnecessarily to meet the Labour Market Testing requirement. Always check with an experienced Registered Migration Agent to determine if the Labour Market Testing is applicable for the position you are nominating.

While standard business sponsors are required to meet the Labour Market Testing and Market Salary requirements at the time of application, it is also important that the sponsors adhere to the employments terms and other obligations after the 457 visa is granted.

Failure to maintain such conditions can lead to monitoring and sanction penalties from the Department of Immigration and Border Protection (DIBP).

This information is accurate on 19 February 2016

Source:

1. https://www.border.gov.au/Trav/Visa-1/457-
2. https://www.fairwork.gov.au/

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

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