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Category Archives: Employer Sponsored Visas

May 16, 2022
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Covid 19 pandemic made many changes to the world. Like many countries, Australia also had very challenging times and the pandemic has affected many sectors, including the migration sector. The country was closed for two years, and the travel restrictions were imposed limiting people to move in or out of the country, which resulted in a big impact on the migration sector. Fortunately, now Australia is slowly but progressively recovering from the impact caused. Also, there are many changes the Government is planning to make as part of this recovery process. The positive news is that these changes are also including the changes in the migration sector.

During the Covid 19 pandemic, many supported workers assisted Australia in maintaining its economy and the balance. Many migrated from other countries, and also many in Australia extended their support. As part of the new changes, the Government is planning to give additional support for obtaining a permanent residency for the people who assisted the country during the pandemic.  In response to the strong labour demand and the declining number of temporary visa holders in 2021 due to the COVID-19 pandemic, on 25 November 2021, the Australian Government announced that measures would be introduced to improve access to permanent residence for certain holders of Subclass 482 (Temporary Skill Shortage) visas (subclass 482 visa) and Subclass 457 (Temporary Work (Skilled)) visas (subclass 457 visa). The instrument forms part of these measures to be implemented on 1 July 2022. More skilled workers holding subclass 457 visas or subclass 482 visas can be nominated and apply for a Temporary Residence Transition Stream (TRT) visa which is a great opportunity. Furthermore, as the Government announced on 18 April 2017 that the subclass 457 visa would cease and be replaced by the subclass 482 visa, transitional arrangements were put in place at the time for those subclass 457 visa holders and applicants to continue to access permanent residence through a subclass 186 visa or subclass 187 visa.

What is Regulation 5.19, and what are the new changes?

With the new changes certain temporary skilled visa holders may be eligible to become permanent residents in Australia. This occurs if their employer makes an application to the Minister under Regulation 5.19  for the visa holder to be nominated for a position in Australia, and, once that application is approved, the visa holder subsequently applies for a Subclass 186 (Employer Nomination Scheme) visa (subclass 186 visa) or Subclass 187 (Regional Sponsored Migration Scheme) visa (subclass 187 visa). Under the subclass 186 visa and subclass 187 visa, applicants can be nominated and apply for several streams for permanent residency, including a subclass 186 visa in the Temporary Residence Transition Stream (TRT visa). Regulation 5.19 describe the process for approving nominated positions in Australia, including a TRT visa.

Also, the Regulation provides a special consideration for those who were affected by the disruption to the labour market caused by the COVID-19 pandemic. These provisions ensure that those who stood down, worked on a basis other than a full-time basis due to COVID-19, had their work hours reduced or were required to take unpaid leave due to COVID-19 are not disadvantaged. These provisions recognise those periods as the time they were employed and, on a full-time basis. Furthermore in certain cases there are some exemptions will be applicable. We have discussed the requirement on how to meet the relevant criteria in detail below.

The detailed requirements before being eligible for the new pathway

In this section, let’s look at how the changes made to Regulation 5.19 will apply to a person planning to move towards their permanent residency through the TRT stream.

  1. First, the applicant must hold a 457 visa or a TSS visa. It is important to note that a person who holds a 457 visa must have met the primary criteria of the visa, and the visa should not have been granted under a labour agreement. Furthermore, suppose the person holds a TSS visa. It is essential to note that the visa should be in the TSS medium stream only unless it is a part of the short-term stream specified in the Regulation. Moreover, the applicant also could be on a bridging visa. Please note that the bridging visa must be related to either a TSS/457 visa or subclasses 186 or 187.
  2. The applicant needs to have a nomination that identifies as an eligible occupation listed ANZSCO. The occupation needs to be in the same ANZSCO group granted to the person for their 457/TSS visa. The reason for this is that when the applicant applies for the TRT stream, they might have been promoted or performing tasks at a higher level, which may result in them having a different ANZSCO code. If so, what is important to identify is that, if this new ANZSCO code falls under the same unit group as the original subclass 457/TSS occupation. Furthermore, if the 457/TSS occupation still falls under the ANZSCO code or a group, then it must also be on the list of eligible occupations list at the time the applicant is applying for the subclasses 186 or 187 visa.
  3. Another important aspect is that the applicant must be performing the tasks of the nominated occupation; if not as per the Regulation, the nomination would not be approved. On the other hand, these criteria could be considered met if the department was made aware and recorded on the departmental system, which indicates that the nominee has not been working in the nominated occupation. For example, the applicant’s nomination is for a cook, but they have been working as a kitchenhand. In these circumstances, the applicant should be provided with the opportunity to comment before making a decision.
  4. Another requirement is that the applicant must hold a subclass 457/TSS visa for three years. The total period must be at least three years before the nomination is made during the previous four years unless the applicant was on a transitional arrangement because the applicant either held a 457 visa or an applicant for a 457 visa which was granted later. To meet the requirements of Regulation 5.19, the applicant must have held a 457 visa or TSS medium-term stream only visa unless the person holds a TSS short term visa per the legislation for three years.
  5. The applicant needs to hold a 457/TSS visa for a total period of three years. Still, the applicant also needs to be employed in the same position for three years. Also, the applicant is required to actively perform their duties in the nominated position throughout the three years. If the applicant had any paid leave period, this could be calculated for the three years. To identify if the applicant was in the same position, the department will consider the factors such as the employer, location of the position, reporting lines, salary, position description, and duties performed. In some cases, the pathway may be available for independent contractors for their nominated occupation rather than the nominated position, such as medical practitioners. Furthermore, the applicant is also required to work full-time during the period. On a case-by-case basis, the applicant may have an opportunity to include the work performed overseas into the full-time period.
  6. The occupation’s nominator needs to be an approved Sponsor. Furthermore, the nominator must be lawfully and actively operating a business in Australia. An important fact to notice is that if different standard business sponsors have sponsored the applicant for 457/TSS visas, only the Sponsor who made the most recent nomination, approved, can nominate the applicant for ENS/RSMS.
  7. The applicant (employee) must be under the nominator/sponsor (employer)’s direct control. Direct control means that there must be a direct employer/employee relationship between the employer and the nominee. An assertion by the employer that the nominee will be an employee is not sufficient evidence to satisfy the Regulations. The term ‘employee’ in Australian legislation and case law refers to a person who performs work under the control of an “employer” in exchange for payment for services the employee provides. An employee works under a contract of employment with an employer. The direct control provision is to prevent employers from giving a nomination for independent contractors or contract staff.
  8. The employer (Sponsor) requires having a genuine need to employ the applicant to work for the position. Let’s say that the applicant was working for an associated entity of the Sponsor. The applicant needs to be under the direct control of the Sponsor. If it meets the Regulation requirements, then the applicant may consider as directly employed by the Sponsor.
  9. As per the Regulation requirement, the applicant must be employed full-time in the nominated position for at least two years. Sponsors are expected to lodge an employment contract for an ongoing full-time position indicating the salary arrangements and the terms and conditions of employment with their application. However, this is not a regulatory requirement. Moreover, as per the Regulation, the terms and conditions of employment do not preclude an extension of the period of employment. Let’s say that the contract specifies that the employment is available for two years. The decision-maker of the department will consider if the contract does not specifically exclude the possibility of renewal.
  10. Not only the Sponsor is required to have the above terms and conditions. The Sponsor also requires showing that they can employ the person for at least two years and pay the market salary rate for the two years. The department will determine this by considering assessments based on factual historical financial data and actual details about the business’s size, nature, and scope.
  11. While there are many requirements mentioned above, the Regulation also focuses on the salary requirements needed to be met for the application to be approved. Furthermore, other employment conditions are also closely looked upon. These conditions, such as employment conditions (other than earnings) for the nominee, are less favourable than those that apply or would apply to an Australian worker performing equivalent work at the same location. It is reasonable to disregard that information. Furthermore, it is also important to note that as per the Regulation, the decision-maker has the discretionary power to refuse a nomination if the Sponsor fails to provide the information which the decision-maker requested.
  12. Furthermore, the decision-makers are provided with the information where the Government has provided employment conditions (other than earnings) for the nominee that are less favourable than those that apply or would apply to an Australian worker performing equivalent work at the same location reasonable disregard that information.
  13. Certain persons may also have an exception, as per the Regulation paragraph 5.19(5)(c) requires that the occupation of the identified person must be specified in a legislative instrument unless the identified person is exempted. At the time of making the instrument, the occupations of the identified persons in relation to a subclass 186 visa are specified as the medium and long-term strategic skills list (MLTSSL) in Migration Instrument 2019. If exempted by the instrument, the identified persons in the nomination application are not required to hold an occupation on the MLTSSL.
  14. The department also takes several measures to ensure that the applicants impacted by COVID19 would not significantly impact their application. Suppose the applicant was on a COVID19 concession unpaid leave. In that case, arrangements are in place to ensure that subclass 457/TSS visa holders who experienced certain temporary changes to their employment arrangements due to COVID-19 are not disadvantaged in relation to the requirement to have been employed in the position in relation to which they hold the subclass 457/TSS visa for the relevant period of not including unpaid leave. Also, Arrangements are in place to ensure that subclass 457/TSS visa holders who experienced certain temporary changes to their employment arrangements due to COVID-19 are not disadvantaged in relation to the requirement for the relevant period of employment to have been on a full-time basis. The COVID-19 pandemic has severely disrupted Australia’s labour market. Many Australian workers have been stood down or have had their employment terminated. As a result, the Government is committed to ensuring that Australian workers are prioritised for job opportunities. When determining whether there is a genuine need for an overseas worker, decision-makers are expected to pay more attention to relevant factors in the COVID-19 environment.

As we said in our video and in this article, this is a great initiative and an opportunity for many who have assisted Australia during the COVID19 pandemic while on their subclass 482/457 visa. On the other hand, as discussed in this article, an applicant must meet many requirements before being eligible to apply for their pathway to permanent residency through the TRT Stream. We understand that this process can be complex, and you may need additional support. If you need advice, we offer Skype, Zoom and phone consultations. Call +(02) 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.




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