New pathway to permanent residence for short-term stream TSS / 457 visa holders (Updated 21 March 2022)

On 17 March 2022, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Alex Hawke) introduced a highly anticipated legislative instrument (LIN22/038) enabling short-term stream Temporary Skill Shortage (TSS) Subclass 482 visa holders who remained in Australia during the pandemic with a pathway to permanent residency. This pathway will be available via the Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (ENS) Subclass 186 visa.

This instrument gave effect to an announcement made in November 2021 regarding the above.

What is the current restriction?

Ordinarily individuals applying for an ENS 186 visa under the TRT stream must hold (or held) a TSS Subclass 482 visa under the “medium-term” stream. There are certain exceptions.

TSS visa holders under the “short-term” stream were restricted to a two-year stay in Australia with restrictions on onshore renewals and without a pathway to permanent residence. Some prominent examples of occupations under the short-term stream includes Finance Manager, Sales and Marketing Manager, Human Resources Manager, and Marketing Specialist (among others).

Certain “specified” persons can apply for the ENS 186 visa if they hold a TSS Subclass 482 visa under the “short-term” stream. This new instrument specifies a new cohort of “short-term” stream TSS Subclass 482 visa holders who would be able to apply for the ENS 186 visa.

Who does this effect?

This instrument specifies two categories of individuals, being:

• “specified 457 visa holders”, being individuals who, on 18 April 2017, either held or was an applicant for a Subclass 457 visa that was subsequently granted; and
• persons who had been in Australia for at least 12 months between 1 February 2020 and 14 December 2021, and are employed by an actively and lawfully operating business in Australia.

Two different exemption apply to these groups of individuals, discussed further below.

The Australian government estimates that there are about 20,000 TSS and 457 visa holders who may benefit from these arrangements.

What does this amendment do?

For “specified 457 visa holders”, this extends the transitional arrangements that were previously in place to allow them to continue to have access to permanent residency under the ENS 186 visa (see summary of these transitionary arrangements here). Such individuals need only to have worked for their sponsoring employer for 2 out of the last 3 years on a 457/TSS visa.

For individuals who were in Australia during the pandemic (i.e. 12 months between 1 February 2020 and 14 December 2021), the standard TRT stream eligibility requirements apply – namely that they must have worked for their sponsoring employer on a 457/TSS visa for 3 out of the last 4 years.

When does this take effect?

For “specified 457 visa holders” this applies immediately.

For short-term stream TSS visa holders, these new exemptions apply from 1 July 2022.

Are there exemptions for individuals whose employment were affected by COVID?

It also recognises that some individuals may have been impacted by COVID, such that they were:

• not employed on a full-time basis due to COVID (but would have been had it not been for COVID); or
• on unpaid leave from employment because of COVID.

The relevant timeframe for either of the above scenarios are referred to as the “COVID-19 reduced work period”.

For the two categories of individuals outlined above, they need to have worked for their sponsoring employer in their nominated occupation for 2 or 3 years respectively less the relevant COVID-19 reduced work period (but not including any other period of unpaid leave).

Any questions?

We’re extremely pleased to see the relaxation of limitations for temporary visa holders in and outside of Australia. Contact us by email at [email protected] or phone +61 3 9016 0484 if you have any further queries.

This document does not constitute legal advice or create an attorney-client relationship. Please consult an immigration professional for up to date information.