On the 25th November 2021, the Immigration Minster announced that there would be some changes to make it easier for certain highly skilled migrants, who were already in Australia working for an employer sponsor, to remain in Australia.
The new arrangements apply to people who are in Australia and hold, or have held, either a Subclass 457 or a Subclass 482 Visa, during the period 1st February 2020 and 14th December 2021.
The main beneficiaries fall into two categories of visa holders in Australia.
People who held, or had applied for, a Subclass 457 Visa, on the 18th March 2017. This is a legacy group of people who were offered a transitional pathway to permanent residency after the major changes in 2017 were announced. A “Grandfathering Arrangement” allowed those people to access a permanent residence pathway provided they were under 50 at the time of application. That grandfathering arrangement ceased on Friday the 18th March 2022.
The changes have the effect of continuing the old grandfathering arrangement indefinitely for this cohort, subject to them still meeting requirements. It means that many people who had previously thought they might miss out on the pathway, will now be able to access it.
This group of people may apply for permanent residency if they are under 50 at the time of application.
The second group is a cohort of Subclass 482 Visa Holders who have an occupation on the Short-Term Skilled Occupation List, and who were previously not eligible for a permanent residency transition pathway. If the 482-visa holder has been in Australia for at least 12 months (cumulatively) between the 1st February 2020 and the 14th December 2021, and is employed by a person actively and lawfully operating a business in Australia, they may be eligible to access the Subclass 186 or 187 permanent residence pathway from the 1st July 2022. They will not have to nominate an occupation which is on the list for the Subclass 186 Visa when applying for permanent residency.
The legislation provides for a “Covid -19 Reduced Work Period” to be considered – where a sponsored worker’s hours have been reduced solely because of the COVID pandemic. Further, a “Covid-19 Unpaid Leave Period” is also considered – where a sponsored worker has taken unpaid leave from their job due to the COVID downturn, either voluntarily or on request of the employer.
To access the new permanent residency pathway, you must still be working and your employer must nominate you.
As well as spending at least 12 months in Australia between the 1st February 2020 and the 14th December 2021, you must meet the minimum time periods spent working with your employer on a sponsored visa. For the “Group 1”- legacy 457 visa holders, this is 2 years out of the last 3. For the “Group 2”- 482 visa holders, this is 3 years out of the last 4. But – you can deduct any “Covid-19 Reduced Work Period” or “COVID-19 Unpaid Leave Period” from your required time.
Additionally, there are the usual criteria which apply to the Subclass 186 or 187 Transition Pathway to permanent residence. These may include – age under 45, Competent English, and meeting identity, health, and character requirements. So far, there have been no concessions to these arrangements (although possible future age exemptions are mentioned below).
The Instrument is in effect from the 18th March 2022. This means that eligible Subclass 457 visa holders may access the concessions immediately. Eligible Subclass 482 visa holders will need to wait until the 1st July 2022, before a nomination can be made using these concessions.
The Minister referred to age exemptions in his media release. We understand the Department is still working on this issue, so we’d expect to see another instrument released later.
Further clarification is required
We still have some questions after looking at the new legislation, and we expect our clients will too. For example:
- What about people who held a second Subclass 482 Visa and have now transitioned on to a Subclass 408 Visa, because they could not apply again onshore for the Subclass 482 visa?
- What about people who are still working and holding a Bridging Visa, having applied for a Subclass 408 Visa, often on the advice of the Department of Home Affairs?
Our professional body, the Migration Institute of Australia, is seeking clarity now on these questions.
Would you like to find out if you are eligible?
This is one of the most complex legislative instruments that we have encountered, as it considers numerous permutations of previous concessions. While some people will clearly be eligible, others will find it more difficult to work out.
We want to help our previous and existing clients, and others, to find out if they might benefit from this pathway. For this, we need some details.
We will assess your situation and give an opinion and a quote for proceeding if we believe you could be eligible. Please complete the short questionnaire below. Our Registered Migration Agents will be in touch.
We hope this information has been helpful, and we look forward to hearing from you!