One of the major changes to the employer sponsored visa programme that came into effect on 18 March 2018 was the toughed requirement for holders of Temporary Skill Shortage (TSS) visa (subclass 482) and the now defunct (457 visas are still valid but no further applications can be made) Temporary Work (Skilled) visa (subclass 457) to complete three years, instead of the previous two, working for their sponsor in the same nominated occupation, before being able to be eligible for a temporary resident transition (TRT) Employer Nomination Scheme (ENS) visa (subclass 186) or Regional Sponsored Migration Scheme (RSMS) visa (subclass 187). Along with this, only medium to long term TSS visa holders are eligible for the TRT. Short term stream TSS visa holders have no pathway under the employer sponsored visa programmes toward a permanent visa.
In those three years, the applicant must be employed in the same position for which they were granted their TSS/457 visa and under the same employer, and must be actively performing the roles and responsibilities of their nominated occupation.
TSS or 457 visa held for a total period of three years
457 visa holders cannot be those that were granted their visas under the labour agreement stream. Transitional arrangements apply for some 457 visa holder that is discussed further in the article.
Only medium term TSS holders (those whose nominated occupations fall under the Medium to Long Term Strategic Skills List (MLTSSL)) are eligible for the TRT stream ENS/RSMS visas
The TSS/457 visa must have been held for at least three years in the last four years before the lodging of the TRT ENS/RSMS application. The applicant is not required to have held the same 457/TSS visa through those three years. This accounts for reasons such as a lapse in visa validity or necessary changes from the 457 to a TSS visa with the same sponsor.
If the applicant has held their TSS/457 visa for the three years but this period was broken by the applicant being on a bridging visa whilst waiting for a further TSS/457 visa to be proessed, time on the birdging visa where work was still undertaken under the same position and under the same employer can count towards the three years.
When calculating time, leave to which the applicant was be entitled to such asannual leave, paid maternity leave, paid sick leave would count toward the requirement. Unpaid leave not included.
Employment in the same role
The Department of Home Affairs (DOHA) will consider the following when assessing if the applicant has stayed in the same role for the relevant period:
- Location of the position
- Reporting lines
- Position description
- Duties performed
Employment under the same employer
If the applicant has not worked for any other entity at any stage of the three year period then this requirement is satisfied.
As ‘employer’ can refer to entities of the main sponsor, there are situations there this requirement may be met where the applicant has worked under a different entity during the three year period. The following are examples:
- The sponsor has been only sponsor for the applicant but the applicant has worker for both the sponsor and its associated entity, or only for the associated entity of the sponsor. Time under associated entities would be counted but it must be ascertained that the sponsor and entities are associated.
- The sponsor has undergone a change in business structure, or experienced a takeover, sale or closure and has changed their ABN/ACN/ name which required an application for new sponsorship approval, but the employer is still the same employer (same business name and/or operations), the nominated position is still the same
- The sponsor was an Overseas Business Sponsor (OBS) who subsequently established an Australian entity and become an Australian Business Sponsor (ABS)
Employment under a different employer
If the sponsor was not the sole sponsor for the applicant and the previous employers have no relation to the current sponsor, the work that was undertaken with previous employers cannot be counted towards the three year period.
Employed on a full time basis and in Australia
For the purposes of fulfiling this requirement, full time work is taken to be no less than 35 hours a week. Where workers who accumulate work hours in bulk and take holidays in bulk such as for industries using fly-in-fly-out workers, hours can be averaged out over a period of time to meet the requirements.
Overseas work must be assessed on a case by case basis. Time spent overseas:
- On trainingmay only be considered if the training was arranged by the sponsor, all costs were paid for by the sponsor and the applicant had received full pay for the duration of the training
- Performing workon behalf of the sponsor may be considered if:
- The position description specifies the possibility of incidental overseas work
- The nature of the role may require such work from time to time
- The time spent overseas is not substantial and overseas work is not the main focus of the responsibilities under the nominated position
- The salary of the applicant was paid by the sponsor during the period of overseas work
Exemptions for certain occupations
If the applicant’s occupation is in this legislative instrument, the applicant will still need to meet the total of three years in the last four years requirement, but are not required to be in the same nominated position, only the same nominated occupation. In other words, they are able to work in the same occupation in different companies. This largely applies to occupations such as senior executives and medical practitioners.
Transitional arrangements exist for those who applied for or a 457 visa by 18 March 2017 and whose visas were later granted, or already held a 457 visa on 18 March 2017.
Nomination applications lodged on or after 18 March 2017 for these applicants will not need to meet occupation list requirements (caveats) and will only have to have been employed in their nominated position with the same employer for two years.