D-Day for transitional/grandfathering arrangements for 457 visa holders? Policy suggests otherwise
/Today marks a significant day for those who held the now-defunct Subclass 457 – Temporary Work Skilled visa on 17 March 2017, or who was an applicant for a 457 visa on 17 March 2017 that was subsequently granted. This is because the instrument that allows these people to apply for a Subclass 186 – Employer Nomination Scheme visa under the Temporary Residence Transition stream will expire on 18 March 2022, two years from today.
The two-year mark is an important milestone. This is because unless there is some saving grace that extends when the instrument is repealed, which seems highly unlikely, anyone who is not employed by their eventual nominator for a 186 visa and who does not hold either a 457 or a Subclass 482 – Temporary Skill Shortage visa today cannot be approved under these arrangements because they will not be able to meet the requirement of working for their nominating employer for at least 2 of the last 3 years immediately before their nomination has been lodged.
The grandfathering arrangements for certain 457 visa holders commenced on 18 March 2018. This instrument modifies a number of 186 nomination requirements under the Temporary Residence Transition stream. The differences are significant.
Requires the primary nominee to hold one or more of either a 457 visa under the standard business sponsor regime or a 482 visa either under the Medium-term stream or Short-term stream for a period of at least 2 of the last 3 years before the nomination is lodged. Those not eligible must hold one or more of either a 457 visa or a 482 visa under the Medium-term stream only (482 visas under the Short-term stream are not acceptable) for a period of at least 3 of the last 4 years;
Unless the primary nominee was nominated in an exempt occupation from being directly employed (medical practitioner and general manager occupations), they must have been employed in the position for which they held one of the above visas on a full-time basis (unpaid leave not counting) for at least 2 of the last 3 years before the nomination is lodged. The time for non-grandfathered arrangements requires them to be employed for a period of at least 3 of the last 4 years;
The general manager and medical practitioner exemption under the transitional arrangements reduce the need for the primary nominee to be working in the nominated occupation and not position, because they are allowed to be independent contractors, for at least 2 of the last 3 years before the nomination is lodged, instead of at least 3 of the last 4 years; and
Easily the biggest benefit of all: exempting the need for the nominated occupation to be on the current occupation list. This list contains occupations only on the Medium and Long‑term Strategic Skills List (MLTSSL). This change restricts many 482 visa holders from being able to apply for a 186 visa.
While not listed in the instrument, those who were a 457 visa holder or an applicant for a 457 visa that was subsequently granted on 17 March 2017 can apply for either a 186 or 187 visa under the Temporary Residence Transition stream before they turn 50 instead of 45 if they are not exempt otherwise by being: an academic applicant; a regional medical practitioner applicant; a science applicant; or a Subclass 457/482 worker – who is required to meet a high-income threshold, among other things. This is provided in a separate instrument relating to skill, age, and English language exemptions.
What is interesting in the transitional arrangement instrument is that it does not discriminate whether the person held or was an applicant for a 457 visa on 17 March 2017 that was subsequently granted, needed to have been the primary visa applicant. This means that partners, children and subsequent 457 visa applicants can access these grandfathering provisions, however, they would be required to be granted a further 457 visa under the standard business sponsor regime or 482 visa (excluding the Agreement stream) to become the primary visa holder and therefore to be able to be the nominee under the Temporary Residence Transition stream.
While there is no possibility of making up the 2 years from today, the policy position of the Department of Home Affairs (Home Affairs) may offer some hope by giving a month’s reprieve for the time required to meet the two-year requirements for holding the necessary visa or visas and working in the position/occupation. As of last year, policy has stated they will accept 23 months as satisfying the requirements to prevent inefficiencies resulting in necessitating a further 482 visa to complete the two years of time worked. One of the reforms made the day the Prime Minister announced that 457 visas would be abolished was that from 19 April 2017, 457 visa grants were restricted to two years for occupations on the Short-term occupation list. This policy continues to this day and many nominees under transitional arrangements are visa holders nominated in an occupation on the 482 visa Short-term Skilled Occupation List (STSOL).
There is, however, a caveat that comes with such a beneficial interpretation. While it may assist an application being assessed by Home Affairs, there is no guarantee whether this would assist an application before the Administrative Appeals Tribunal (AAT) and perhaps even more dangerously before a court. However, there may be little choice for those facing the alternative of never having the chance to be granted a permanent visa.