When can I apply for PR? When do the 2 years of residency start? When can I count my 1 year of work experience? Does it matter how much time I am outside Australia? I’m stuck outside Australia how can I apply?
These are just a few of the common questions we are asked during our consultation sessions, so during this article, we will cover these issues and more. Now the DoHA has released critical concessions in order to assist those affected by the COVID-19 Pandemic.
COVID 19 Concessions
Yesterday the DoHA released new laws to assist people who have been affected by the Pandemic by either being caught outside of Australia and unable to return or may have lost their employment. If these circumstances have affected you since the 1st February 2020 or are currently affecting you, then these concessions may be of great help. So far we do not know when this concession period will end and this will be announced later.
From the 19 September 2020, these COVID concessions apply to lodgement and eligibility requirements will be available to eligible prospective Skilled – Regional visa (subclass 887) applicants where they meet criteria set out below.
Applicants outside of Australia
People who wish to apply for the 887 visa can make their visa application outside Australia during the concession period (which is now) and be granted the visa while they are outside Australia. Applicants outside of Australia who lodge during the concession period are given access to shorter employment requirements and shorter residence requirements.
These applicants must provide evidence of at least:
- 9 months full-time work in a specified regional area (or, if the Minister specifies a shorter period in a legislative instrument, that shorter period), and
- 18 months residence in a specified regional area (or, if the Minister specifies a shorter period in a legislative instrument, that shorter period).
Applicants inside Australia
Those of you in Australia and looking to apply for the 887 visa, who lodge during the concession period (from now) or no later than three months after the end of the concession period (to be announced), are required to provide evidence of at least:
- 9 months full-time work in a specified regional area, and
- 2 years of residence in a specified regional area.
Eligibility for the shorter employment and residence periods for subclass 887 visa applicants entitled to the COVID-19 concessions:
Location: Offshore: Employment Concession – Yes: Residence Concession – Yes
Location Onshore: Employment Concession – Yes: Residence Concession – No
The 489 visa holder
Congratulations you are the last remnants of a dying breed of lucky 489 visa holders. Soon doomed to be extinct once all of your visas expire, your last chance of survival is to live on as permanent residents is via the 887 PR application. I say lucky, for you only have to demonstrate 1 year of work experience and there is no minimum threshold of income to meet. The new 489 replacement, the 491 visa, has an unfortunately high-income level threshold which must be maintained for a three year period if you want your PR later. It’s a much tougher pathway that makes the 489 visa seem like a stroll in a park.
Now that you are on your 489 visa you will, of course, be bursting with enthusiasm for your permanent residency application to be lodged. There is a considerable amount of incorrect information out there being talked about in how the PR is obtained, so take note from the DOHA Policy Guidelines we use in this article.
This permanent residency (PR) stage will be the 887 visa and of course like all PR visas it has certain conditions but they are are relatively very basic now you have done most of the hard work.
Holding the 489 for 2 years
2 Year Residency Requirement vs Holding the 489 for 2 years. They may sound like the same thing but be very careful, they are not.
To make a valid application for the 887 visa, you must have held the 489 visa for 2 years. This is not a negotiable component. If you haven’t held the visa for 2 years you cannot lodge.
2 Years of residency
The two year residency requirement means you must have lived in a specified regional area for at least 2 years at the time you lodge the application. You will not be able to add on any residency periods after the application is lodged. The legislation relating to the residency component outlines one or more of the following visas must have been held;
A 495 visa, a 496 visa, a 475 visa, a 487 visa, a 489 visa or a BVA or a BVB that was held on the basis of a valid application for a 495 visa, a 489 visa.
Mateo was granted his 489 visa and lived in the NT for 12 months. He then went home for 4 weeks on paid holiday leave to marry his sweetheart Jill from the UK. After the ceremony, Jill applied for the 489 visa as a dependent on Mateo’s visa. Mateo went home to the NT to keep working. When Jill’s visa was granted she also moved to Australia and lived with him. In only 6 months after she moved, Mateo had met the residency and work requirements to apply for the 887 visa. After their 489 visa expired and they were waiting for the 887 visa to be granted, they moved to live in Sydney.
The Bridging visa for the 887 application has no conditions attached so you are free to work and live wherever you like. However, whilst your 489 still exists the BVA for the 887 will not have taken effect so you are still restricted to your visa conditions.
These 2 years of residency do not have to be consecutive and they do not have to be just in one specified regional area. The 489 visa is valid for 4 years and if the applicant has had to live for an extended time period outside of your specified regional areas (overseas), so long as they have complied with their visa conditions and not lived outside their specified areas in Australia, they will be able to accumulate the 2 years over multiple residences.
Shorter periods where the applicant has travelled outside the specified areas (other parts of Australian or overseas) will not result in a breach of their conditions or be subtracted from their 2 years if it is no more than 4 weeks duration for each year. The total of 4 weeks is permitted to match the annual leave component in Australia. Short travels for holidays will not be considered a cessation of residence. For example, in Mateo’s case, his stay in the UK was only for 4 weeks during his annual leave. If you have travelled back home and stayed there longer than 4 weeks at one stretch or more than 4 weeks during a 12 month time span, it would be wise to lodge the 887 visa application at a later date to make up more residency time in Australia.
Evidence that can be given to support fulfilling these 2 years can come in the form of rental agreements, mortgage documents, work time sheets, school reports, utility bills and so forth. You can of course live in multiple specified regional areas to make up this 2 year requirement but the onus will be on the visa applicant to prove residency in each of these areas. The more you move around the larger the amount of documents you will need to submit to the DOHA.
If you hold (or held) a bridging visa after lodging the 489 visa (for example) this time of residency can be counted towards the two years of residency. Remember though don’t confuse this with the legal requirement that you must hold the 489 visa for two years in order to make a valid application.
One Year of Work Experience
The one year of work experience in a specified regional area must be met at the time you lodge the 887 application. You will not be able to add work experience either after you lodge.
Similar to the residence criteria, the applicant can accumulate the 1 year of work over multiple shorter time periods. Like the residency requirement, you need to be on the right visa or on a BVA or BVB after applying for the right visa (see above). The applicant need only have physically worked in a location within the specified areas attached to their visa conditions, but do not need their employer to be based there (e.g. if the employer has multiple offices). In one of our cases, our client worked in a specified regional area from home via an online portal, but his employer was located in Sydney. The fact was that he was working in a specified regional area and that was all that mattered.
The work must be full time, which is typically regarded to be 35 hours a week, however, if the nature of the work is such that fewer hours are required, the DOHA will not enforce the 35-hour minimum so strictly. Nonetheless, work cannot be counted if it is for less than 30 hours a week. The DOHA will also consider the requirement met if the applicant works part-time for 2 jobs for a year with the combination of hours being 35 per week.
It also does not matter what type of work is undertaken. There is absolutely no requirement that the work is related to the nominated occupation you used to obtain the 489 visa. You can be driving a taxi, picking fruit or washing dishes at the local cafe to meet the work requirement. There is also no need that you have a permanent job either. You can be a casual or part-time, the designation does not matter.
If work has taken the applicant outside the specified areas based on the applicant’s visa condition, these trips cannot be frequent. They are acceptable so long as the applicant place of work to a significant degree, is within those specified areas.
Supporting documents will be needed to support any work claims and they include employment contracts, payslips, tax documents, work references and the like.
We will discuss Uber Driving and other self-employed scenarios in the following article.
Only Main Applicant to meet these requirements
Remember only you or your partner needs to satisfy the primary criteria of the 887 visa and it does not matter if the main applicant is different from the main applicant for the 489 (or other visas). For example;
Maria studied in Australia and then was the main applicant for the 489 visa and Jim her husband, was the secondary applicant. Both obtained their visas and have lived happily in South Australia. Maria became pregnant and decided not to work since Jim had a full-time job. After the baby was born the two years of living in a specified regional area was up, Jim became the main applicant for the 887 visa and the entire family applied together.
Remember for the 887 there is no skill assessment requirement and no points test to meet and no need to apply for sponsorship again.
You will, of course, need to have met the visa conditions during your two years of residency and that will vary, depending on if your 489 visa is state/territory sponsored or relative sponsored. State/territory sponsored 489 visas are subject to condition 8539, whilst relative sponsored 489 visas are subject to condition 8549.
Condition 8539 (state/territory)
The holder, while in Australia, must live, study and work only in a regional area of Australia, or study only in areas specified in the legislative instrument in force at the time the visa was granted. Since the 16th November 2019 a new instrument came out which includes the Regional Designated Areas (DRA). Those lucky people who had their 489 granted after that date can use the new DRA list but those granted before cannot. Not really fair, but that is the way it is, so be careful.
The holder, while in Australia, must live, study and work only in a designated area in Australia. This is different to the DRA mentioned above. The restrictions on the 8549 conditions have not changed after the 16th November 2019 and have remained the same. Wollongong and Newcastle are not areas allowed under this condition. See the Designated Areas of Australia list.
All previous visa conditions must also have adhered too and health and character requirements must also be passed. All applicants must have substantially complied with the conditions on their visa in order to be granted their PR.
Read: Substantial Compliance, what does it mean?
The 887 PR visa is not as straight forward to apply for as you may think. If you need professional advice or representation give us a call to book a consultation to speak one of our highly experienced migration specialists. Call +61 2 8054 2537, 0434 890 199 or book online. We also consult over the telephone and Skype via booked appointments.