COVID-19 concessions for 186 and 187 TRT nominations and high-income workers

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Concessions due to the COVID-19 have already commenced for a few visas, including: working holiday maker visas, safe haven visas, business skills visas, skilled permanent regional visas, and international graduate visas.

Concessions now apply to the permanent employer-sponsored Subclass 186 – Employer Nomination Scheme visa and Subclass 187 – Regional Sponsored Migration Scheme visa. Two key instruments were amended to account for shutdown periods, reduced working hours and unpaid leave caused by the coronavirus pandemic to not disadvantage workers who would otherwise be eligible for either a 186 or 187 visa.

Age exemptions for high income earners affected by coronavirus

For 186 and 187 visas, there is a soft cap that the primary visa applicant must be under the age of 45 at the time of application. This limitation does not apply to those classes that are exempt. These are:

  • academic applicants,

  • regional medical practitioner applicants,

  • science applicants,

  • Subclass 457/482 workers, and

  • transitional 457 workers under 50.

Further information on this instrument and all exemptions can be found here.

An amending instrument, which commences today adds a further definition, Subclass 457/482 coronavirus concession workers. This class of people must meet all the following:

  • For 3 years ending immediately before the day the visa application was made, the person was employed at all times by their nominating employer, and in the nominated occupation that relates to their visa application;

  • Their employment was affected by a coronavirus employment change;

  • For each of those immediate 3 years not affected by a concession period, their earnings were equal to or greater than the high income threshold;

  • For each of those immediate 3 years which includes any part of the concession period, their earnings for the year (excluding any earnings in a week when the person’s employment was affected by a coronavirus employment change) were equal to or greater than the pro‑rata threshold;

  • At almost all times during those 3 years, the person held either a Subclass 457 – Temporary Work (Skilled) visa, or a Subclass 482 – Temporary Skill Shortage visa.

A few definitions in the above were added in the instrument or which refers to existing legislation.

coronavirus employment change – is when a person’s employment is affected during a concession period, and at the time because of COVID-19 they were required to either work at a reduced salary, work reduced hours, work part-time, unable to work full-time, or stood down.

concession period – takes the definition in the Migration Regulations 1994 (Cth), which is a period that started 1 February 2020, and which does not have a current end date.

pro‑rata threshold – is determined using the high income threshold as applying at the end of the financial year and dividing it by 52 then multiplying by the sum of 52 less the number of weeks in the year when the person’s employment was affected by a coronavirus employment change. This number will change on a case-by-case basis and intends to work out the number of weeks each individual is affected.

high income threshold – is already defined as the Fair Work High Income Threshold (FWHIT). This is currently $153,600 per annum, and is indexed on 1 July.

Earnings has a specific definition in the Regulations, based on the Fair Work Act 2009 (Cth) definition, which excludes payments that cannot be determined in advance (such as commissions, bonuses, non-guaranteed overtime), reimbursements, and compulsory contributions to superannuation under various state and territory, and Commonwealth laws.

Lastly, the requirement to be either a 457 or 482 visa holder “at almost all times” is likely to be interpreted as including periods where the person held a associated bridging visa granted on the basis of lodging either a 457 or 482 visa to cover period where either a 457 or 482 visa was not held.

Any visa applicant who is a Subclass 457/482 coronavirus concession worker will be exempt from needing to be under 45 years of age for either a 186 or 187 visa application under the Temporary Residence Transition stream only.

Effectively, this amendment will affect high-income earners who would have met the definition of Subclass 457/482 workers had not the coronavirus affected their employment. It will apply to any visa application made from today.

186 and 187 Temporary Residence Transition stream employment reduced if COVID affected

Another amending instrument commencing today, but unlike the change listed above, will apply to any 186 or 187 nomination under the Temporary Residence Transition stream lodged from 1 February 2020 if a final decision has not been made prior to 24 November 2020.

While the original instrument only provided for certain variations when a person is deemed a specified person (commonly known as grandfathering arrangements), who is a person who held or had applied for and was subsequently granted a 457 visa on 18 April 2017, specific paragraphs will now apply to any 457 or 482 visa holder. This is because the instrument varies certain regulations which require minimum employment requirements to be successfully nominated.

The definition of concession period is again the same as in the Regulations. There are two important additions.

Coronavirus reduced work period

One of the criterion for a 186 or 187 nomination application under the Temporary Residence Transition stream is that the nominee (and primary visa applicant) must have been employed by their nominating business as a primary visa holder for at least 3 years in the immediate 4 years, on a full-time basis (with unpaid leave not counting) in Australia as the holder of either: a 457 visa sponsored under the standard business sponsor regime, or a 482 visa under the Medium-term stream. If they are a specified person, the number of years of employment is reduced to 2 in the last 3 years, and they can hold or have held a 482 visa under the Short-term stream as well.

A new definition of coronavirus reduced work period was created that effectively allows that, if during a concession period, a nominee either worked part-time or was stood down, or was on unpaid leave because of COVID-19, the total time required to have worked, be it 2 or 3 years, is reduced by the work period they were affected.

Coronavirus unpaid leave period

A similar definition is created for the independent contractor occupations (medical practitioners and general managers) called coronavirus unpaid leave period. This replicates the coronavirus reduced work period, however, as independent contractors are not required to be working full-time, and stand down provisions do not apply, only unpaid leave during a concession period due to COVID-19 will reduce the total time required.

Importantly, the deadline on 18 March 2022 has not changed for those specified people who can benefit from the original transitional arrangements.

The Department of Home Affairs’ policy suggests that any claims made to reduce the time because of COVID-19 is likely to be crosschecked with sponsor notifications of these reductions and leave periods.