186TRT visas: Pathway to permanent residence for some 482 visa holders from 1 July 2022, 457 exemptions continue

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The instrument that extends the exemption to the repealed subclass 457 – Temporary Work (Skilled) visa holders and adds a pathway for a permanent visa application for subclass 482 – Temporary Skill Shortage visa holders in the Short-term stream came into effect on 18 March 2022.

This coincides with the self-repealing previous instrument that exempted certain 457 visa holders under grandfathering arrangements to be able to apply for a subclass 186 – Employer Nomination Scheme visa under the same Temporary Residence Transition stream.

The instrument implements most of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs’ November 2021 announcement on new pathways to a permanent visa for sponsored skilled workers, however, the instrument provides more benefits than what was announced.

The instrument creates two types of specified people.

Specified 457 visa holder is a person who held a 457 visa on 18 April 2017 or was an applicant for a subclass 457 visa on 18 April 2017 that was subsequently granted, and

Specified person will be, commencing on 1 July 2022, a person who was in Australia for at least 12 months between 1 February 2020 and 14 December 2021, and at the time the nomination is lodged is employed by a person actively and lawfully operating a business in Australia.

While there is no visa mentioned under the definition of specified person, regulation 5.19(5)(a)(iii) of the Migration Regulations 1994 (Cth), which this definition influences, still requires the nominee to hold a 482 visa in the Short-term stream. Other subregulations allow nominees to hold a 482 visa in the Medium-term stream or a bridging visa, however, for bridging visa holders, their last substantive visa must have been either a 457 or 482 visa. And of course, any Temporary Residence Transition stream nomination must identify a primary 457 or 482 visa holder.

The Explanatory Statement states that a specified person will allow access to permanent residence “for the existing subclass 482 visa holders in the short-term stream.”

But unlike the instrument it replaces, because there is no date for this instrument to be repealed it is not limited to existing 482 visa holders under the Short-term stream. The definition does not specify a visa and therefore does not exclude any person who was in Australia for at least 12 months between 1 February 2020 and 14 December 2021 from becoming a specified person by being subsequently sponsored for a 482 visa in the Short-term stream and later being nominated for a 186 visa under the Temporary Residence Transition stream.

As for being “employed by a person actively and lawfully operating a business in Australia” at the time of application, this is redundant as it is mandatory for all nomination applications: regulation 5.19(5)(h).

Like with the previous instrument, specified 457 visa holders must:

  • have held one or more 457 or 482 visas for at least 2 of the previous 3 years immediately prior to when the nomination application was lodged,

  • employed on a full-time basis in the position in relation to which the 457 or 482 visas were granted as the holder of one of these visas for at least 2 of the previous 3 years immediately prior to when the nomination application was lodged with unpaid leave not counting. If they were sponsored in an independent contractor occupation, they are required to be employed in the occupation for 2 years.

Specified persons must:

  • have held one or more 457 or 482 visas for at least 3 of the previous 4 years immediately prior to when the nomination application was lodged,

  • employed on a full-time basis in the position in relation to which the 457 or 482 visa were granted as the holder of one of these visas for at least 3 of the previous 4 years immediately prior to when the nomination application was lodged with unpaid leave not counting. Again, if they were sponsored in an independent contractor occupation they are required to be employed in the occupation for 3 years.

Because most 482 visas in the Short-term stream are granted for at most 2 years unless an international trade obligation applies, many of those wanting to qualify as a specified person will need to apply for a further 482 visa with the same employer.

For both specified 457 visa holders and specified persons:

  • there is no requirement for the nominated occupation to be on the 186 visa occupation list,

  • if they took unpaid leave or had their full-time employment reduced due to COVID-19-related lockdowns during a concession period, which commenced on 1 February 2020 and is still going, the required 2 or 3 years of employment is reduced by that period.

The Minister has yet to act on his other major announcement relating to 186 visas. The instrument to allow legacy 457 visa holders, effectively specified 457 visa holders, who no longer meet the age requirement of being under 50 years old at the time their 186 visa application is lodged has yet to be amended.