186TRT: Amending regulations registered, legacy 457 visa holder exemption survives; concession period ending

The instrument that will amend the Migration Regulations 1994 (Cth) tomorrow, 25 November 2023, was registered yesterday.

While only 13 amendments are listed, this is one of the most important policy changes to Australia’s permanent immigration as it effectively winds back the restrictive policies and then some that accompanied the abolition of the subclass 457 – Temporary Work (Skilled) visa and replaced it with the subclass 482 – Temporary Skill Shortage visa.

The changes go further as it provides a pathway for all primary 482 visa holders in any stream (and any 457 visa holders too) to a subclass 186 – Employer Nomination Scheme visa under the Temporary Residence Transition stream, including 482 visa holders under the Labour Agreement stream.

The reason this is important is that only the TRT stream has public interest criterion (PIC) 4007, instead of PIC 4005. PIC 4007 provides for a health waiver; PIC 4005 does not. Another benefit of adding 482 Labour Agreement stream visa holders is the likely redundancy of sponsoring employers needing to seek a deed of variation with the Department of Home Affairs to allocate places for 186 visas, however, this will be necessary if salary concessions under the Temporary Skilled Migration Income Threshold (TSMIT) apply.

Adding all 482 visa streams is done by amending the relevant paragraph to include parties to a work agreement, also known as a labour agreement. Because the amended paragraph requires identifying a person in an approved nomination, this prevents secondary 457 and 482 visa holders “switching” to being the primary sponsored person.

The regulations for nominations for a subclass 187 – Regional Sponsored Migration Scheme visa is also amended, however, this subclass and stream is only available to a transitional 457 worker (held a 457 visa at any time on or after 18 April 2017) or a transitional 482 worker (held a 482 visa in the Medium-term stream or applied for a 482 visa in the Medium-term stream on 20 March 2019 that was granted).

The other major change is that the time required to hold either a 457 visa or 482 visa, and the required time for that visa holder to have worked for their sponsor on a full-time basis as the holder of either a 482 or 457 visa is reduced from 3 of the immediate 4 years before being nominated, to 2 of the immediate 3 years.

Obviously, the requirement to hold a certain subclass of visa is altered to simply identify a 457 visa holder, 482 visa holder, or a bridging visa holder whose bridging visa was granted on the basis of applying for either a 457 visa, 482 visa, 186 visa or 187 visa.

The entire paragraph for the TRT stream that requires the identification of an occupation on a relevant list is abolished. However, it does not repeal the paragraph that requires the nominating organisation to identify an occupation in relation to a position. This is to ensure the sponsored worker has worked in the same occupation for the required time to be eligible.

Obtaining the relevant work experience and holding the right visa is only one major requirement to be granted a 186 visa. Age, with the exemption below for high-income earners and regional medical practitioners, English, and many other nomination and visa requirements did not change and therefore must also be met.

In the same legislation, a 482 visa applicant under the Short-term stream will be able to be in or outside Australia when their application is lodged, just not in immigration clearances, and will no longer be required to be overseas to lodge a further visa application depending on how many times they had applied for the same visa and stream in Australia.

Amending occupation lists and exemptions

In addition to the regulations, an instrument was registered that amends several other legislative instruments to give effect to the policy changes.

Firstly, it repeals in its entirety the transitional provisions, which allowed those in Australia during the pandemic to apply for an employer-sponsored visa. This is because there is no longer the need to carve out this cohort as the new arrangements will be just as beneficial except for any COVID-19 reduced work periods claimed.

As it has been almost two years since the end of the period for which a person must be in Australia, anyone affected should have lodged a visa application by now.

The 186 visa and 187 visa occupation lists are also amended. The 186 occupation list removes certain references to regulations so that no occupation is required to be identified on that list for the TRT stream.

The 186 occupation list retains a list of occupations for the purpose of applications under the Direct Entry stream. This stream does not require sponsorship for a 482 visa first, but requires a positive skill assessment in the nominated occupation list and at least 3 years of full-time work experience at the level of skill required for the occupation, unless exempt. 

Furthermore, the 187 occupation list is also repealed in its entirety. This is because any other stream other than the TRT stream is no longer available.

The instrument that specifies certain skill, age, and English language exemptions is subject to amendments, including:

• Repealing the definitions of concession period and coronavirus employment change, and Subclass 457/482 coronavirus concession worker and removing them from various exemptions. This means that any concessions introduced because of the pandemic will no longer apply to any future applications.

• Reducing the number of years a high-income applicant, known as a Subclass 457/482 worker, needs to be employed with earnings at least the high-income threshold, and have held one or more 457 or 482 visas from 3 years of 4 years to 2 of 3 years immediately before their visa application is made. The high-income threshold is the Fair Work high-income threshold, which is currently $167,500.

• Reducing the number of years a regional medical practitioner applicant, who is a medical practitioner nominated in a regional area, needs to be employed from 3 years to 2 years and have held one or more 457 or 482 visas from 3 years of 4 years to 2 of 3 years immediately before their visa application is made.

• Amending the definition of legacy 457 worker to add that they must apply for a 186 visa on or before 30 June 2024, thereby keeping the promise that this option will remain available for two years from 1 July 2022.

• For the 186 occupation list, repeal the relevant paragraph referencing the TRT stream.

COVID-19 officially ends

What may seem like a distant memory, COVID-19 will also officially end in migration law. An instrument will end the definition of a concession period under the Regulations on 25 November 2023. The concession period applied to many subclasses.

The concession period will remain available to anyone who made an application relying on this to have their visa granted.

In addition to this, the regulations for subclass 485 – Temporary Graduate visas, and first-stage partner visas (subclass 309 – Partner visa and subclass 820 – Partner visa) are amended so that from 25 November 2023, these visas can be granted to applicants whether they are in or outside Australia. This provides greater flexibility, which perhaps should have been allowed pre-pandemic.

An additional, but important change in the same instrument, is to allow 309 visa holders to apply for merits review of their refused application instead of only their sponsor. This is needed in case of domestic violence claims and grants these visa holders the same rights to review their refused application as 820 visa holders.