With just over 2 weeks left until the Subclass 187 - Regional Sponsored Migration Scheme visa is all but repealed and replaced by the Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa, important legislative instruments were registered yesterday, a Halloween blessing (or curse) for some. This includes the occupation list, and age, skills, employment history, and English language exemptions. Issues include all 494 primary visa applicants with few exceptions must obtain a permanent skill assessments, and Subclass 186 - Employer Nomination Scheme visa applicants under the Temporary Residence Transition stream will lose their right to an alternative method to meeting the competent English language requirement.
494 visa occupation list
Those expecting the occupation list for 494 visas to be much different to the occupation list for 187 visas will be disappointed. In fact, there are some 23 fewer occupations on the 494 occupation list.
As with Subclass 482 - Temporary Skill Shortage visas, the occupations of 253111 General Practitioner, 253112 Resident Medical Officer, and 253999 Medical Practitioners nec will require a relevant health workforce certificate issued by an approved state-based medical organisation.
Age, Skills, employment history, and English language exemptions
The new instrument, which will come into effect on 16 November 2019 creates a number of definitions that are then used to carve out exemptions for particular subclasses. This includes, among others:
Academic applicant – 134411 Faculty Head and 242111 University Lecturer nominated occupations made by an Australian university and whose position is one of a number of academic levels;
Medical practitioner – Occupations listed in the ANZSCO under Minor Group 253 (medical practitioners);
Regional medical practitioner applicant – A person whose nominated position is located in a designated regional area, for 3 years immediately before the visa application the person was employed as a medical practitioner with at least 2 of those years employed in a place or places located in a designated regional area, and held either a Subclass 457 – Temporary Work (Skilled) visa or a Subclass 482 – (Temporary Skill Shortage) visa;
Science applicant – A visa applicant who is a researcher, scientist, or technical specialist, was nominated by a science organisation (also defined), and their nominated occupation was one either at Skill Level of 1 or 2;
Subclass 444/461 worker – A person who for 3 years immediately before their visa application is lodged held either a Subclass 444 – Special Category visa or a Subclass 461 – New Zealand Citizen Family Relationship (Temporary) visa and spent at least 2 years working for their nominating employer and in the nominating occupation;
Subclass 457/482 worker – A person who for 3 years immediately before their visa application is lodged held either a 457 or 482 visa, and in those 3 years worked for their nominating employer and in their nominated occupation, and earned above the Fair Work High Income Threshold (FWHIT) for each of those three years.
Transitional 457 worker under 50 – A person who held or had applied for a 457 visa which was subsequently granted on 18 April 2017 and who had not turned 50 at the time their new visa was made.
These definitions are then applied to each exemption and stream where applicable.
For 186, 187 and 494 visas, primary applicants must not have turned 45 years old except under the following circumstances.
For 186 visa and 187 visa primary applicants under the Temporary Residence Transition stream:
regional medical practitioner applicants;
Subclass 457/482 workers;
transitional 457 workers under 50.
For 186 visa primary applicants under the Direct Entry stream:
Subclass 444/461 workers.
For 494 visa primary applicants under the Employer Sponsored stream:
regional medical practitioner applicants;
Subclass 444/461 workers;
Subclass 457/482 workers.
The above means that transitional 457 workers under 50 will not be able to look towards a 494 visa as a pathway to a permanent visa in the future.
Skill and employment history exemptions
For 186 visa applicants under the Direct Entry stream, primary applicants must have a valid permanent skill assessment and have been employed in the occupation for at least 3 years on a full-time basis and at the level of skill required for the occupation at the time of application. Academic applicants, science applicants, and Subclass 444/461 workers will be exempt from 16 November 2019 in keeping with the current legislative instrument.
For 494 visas under the Employer Sponsored stream, and unlike the 187 visa, primary visa applicants must have a permanent skill assessment in all nominated occupations unless exempt according to an additional instrument. This is a significant departure from 187 visas under the Direct Entry stream where only trade occupations where the necessary qualification was not obtained in Australia required a skill assessment. Those who hold either a 457 or 482 visa and obtained a permanent skill assessment in their occupation will not require another one. Any assessment made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course.
As with 186 visas under the Direct Entry stream, primary 494 visa applicants must also have at least 3 years of full‑time work experience in their nominated occupation and at the level of skill required.
The only exemptions to the skill assessment and 3-year work experience requirements will be academic applicants and Subclass 444/461 workers.
And unlike 482 visas where a skill assessment is only required to be lodged, 494 visa applicants must declare, to validly lodge a 494 visa that their skills have been approved (suitably assessed) by the relevant assessing authority.
Because skill assessments can take many weeks to process, this hurdle will pose significant pressure on employers seeking to fill critical skill shortages and where the nominee is either overseas or in Australia and holding a visa without full work rights. They may opt for a 482 visa instead if time is critical. Additionally, some suitable 494 visa applicants despite having many years of work experience in their occupation will not be able to consider a 494 visa if they do not have the minimum qualification. For instance, many professional occupations a bachelor’s degree is mandatory regardless of any work experience.
Competent English requirements will be exempt for 187 visa applicants under the Temporary Residence Transition stream. Instead, as with current requirements, they must have completed at least 5 years of full‑time study in a secondary or higher education institution where all tuition was delivered in English.
Of much interest, and possibly an administrative error is that 186 visa applicants under the Temporary Residence Transition stream will not be allowed to use the same exemption as is allowed currently. As the current instrument will be repealed on 16 November 2019, this leaves the English exemption in the regulations with no instrument to refer to.
494 exempt applicants
Similar to 482 visas, a new instrument updates the carve out occupations for independent contractors: general managers and medical practitioners. Primary 494 visa holders nominated in these occupations will be exempt from being employed by only their nominating business or an associated entity among other things.
491 pass mark set at 65
As expected, the minimum number of points, commonly referred to as the pass mark, to be approved a Subclass 491 – Skilled Work Regional (Provisional) visa has been set at 65 points. While this minimum is fine for those nominated by a State or Territory, unless the number of invitations issued for 491 visas for applicants sponsored by an eligible relative increase dramatically, there is little chance a 491 visa applicant under this pathway can have this score.
Applicants who are invited to apply for a 491 visa will be able to do so through ImmiAccount, however, the legislative instrument setting out how to validly lodge these applications, state that subsequent secondary 491 visa applicants will have to email the Department of Home Affairs with a paper application form.