186/187 visas: TRT stream for all from 25 November 2023, third 482 visa onshore applications allowed

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Ever since the employer-sponsored subclass 186 - Employer Nomination Scheme visa and subclass 187 - Regional Sponsored Migration Scheme visa were restricted to occupations on the related Medium and Long‑term Strategic Skills List in March 2018 sponsored workers holding a subclass 482 – Temporary Skill Shortage visa that could not find another way to apply for a permanent visa were stuck in limbo as temporary visa holders.

They were primarily those nominated in an occupation on the Short‑term Skilled Occupation List and therefore holding 482 visas in the Short-term stream. Those nominated in occupations on the Regional Occupation List had the 187 visa under the Temporary Residence Transition stream until that option was closed to all but transitional workers, but could then shift to a 494 – Skilled Employer Sponsored Regional (Provisional) visa, if possible. Those in the Labour Agreement stream could generally transition to a 186 visa under the Labour Agreement stream.

There were many exemptions over the years including for subclass 457 - Temporary Work (Skilled) visa holders, the forerunner visa before 482 visas, and then pandemic-related exemptions. The rationale of restricting permanent visa was congestion in Australia’s three largest capital cities, and therefore to ensure only overseas workers in the most critical occupations could be sponsored for a permanent visa anywhere in Australia.

As there were little changes to the occupation list, and there seemed to be no motivation to make any changes, many visa holders were effectively stuck. This, coupled with a maximum two-year visa in most cases and a genuineness test on the number of 482 visas Short-term visa holders are expected to hold, meant the outlook was grim until the government announced that effectively most if not all the restrictions made since March 2018 will be unwound. The reason being for more equitable access to permanent visas for all 482 visa holders.

Late last week the Department of Home Affairs posted an article confirming the much-anticipated expanded pathway to a permanent employer-sponsored visa for primary sponsored subclass 482 – Temporary Skill Shortage visa holders under the Temporary Residence Transition stream will commence from 25 November 2023.

This will not only apply to new nominations, but also applications that have not been finally determined as of 25 November 2023. What this means is that the new regulations will apply to any 186 or 187 nominations still processing, which should be refused under existing criteria but would be approved under the new criteria, can be approved from 25 November 2023. Not many nominations would fit this scenario. The criteria for nomination applications are all time of decision unless a requirement or instrument specifically states otherwise.

More relevant, however, is that the new regulations will apply to any refused 186 or 187 nominations that were appealed to the Administrative Appeals Tribunal (AAT) as finally determined can generally be defined as when the AAT makes their decision on an application for review if one has been made.

The changes, which will apply to the Temporary Residence Transition stream, include:

  • allowing employers to nominate holders of all streams including the Short-term and Labour Agreement streams. This will have important implications if 482 visa holders under a labour agreement cannot meet the health threshold as a health waiver is only available under the Temporary Residence Transition stream. It will also not require employers to apply to vary their labour agreements to add nominations for 186 visas. How this will operate with agreed concessions will only be known once the regulations are released.

  • removing the need to nominate an occupation on the relevant occupation list. This does not mean any occupation can be nominated and the primary 482 visa holder must still work in the same occupation as was nominated for their 482 visa.

  • reducing the time a primary 482 visa holder must hold and work in their nominated occupation from three to two years before being nominated for a 186 visa.

Additional changes include:

  • updating age exemptions for regional medical practitioner applicants and high-income earning applicants aged 45 years and over to allow for a similar two-year pathway, and

  • ending redundant COVID-19 related age exemptions due to the changes in time required to be working.

These small amendments are not expected to affect any other pandemic exemptions, which have been promised to run until 30 June 2024.

Onshore 482 visa applications for Short-term stream applicants

Also from 25 November 2023, the restriction to lodging further 482 visas in the Short-term stream will be removed. This, however, leaves those affected who did not take advantage of the exemption to lodge before 1 July 2023, to leave Australia to lodge their application.

Applicants for a 482 visa in the Short-term stream must be offshore if they have held two or more 482 visa in the Short-term stream and were in Australia when they applied for their last 482 visa.

Whether the other Short-term stream only criterion that is just as ridiculous as needing to lodge a further application offshore, namely the genuine applicant test, is also removed is not certain. This criterion is intertwined with how many 482 visas a primary applicant has previously held and tied to the fact that there was no pathway to a permanent visa.

Of course, the “temporariness” of 482 visas in the Short-term stream, will change at the end of the month.