So you’ve been enjoying the Australian sunshine, working whilst holding a Temporary Skill Shortage (TSS) visa, and your employer raises the question of of renewing your TSS visa in Australia. Although TSS visas have set expiry dates and cannot be extended or renewed in the conventional sense, a further TSS visa application may be possible to extend your stay. If this is your aim, there are several things you should be aware of to make sure your renewal process is as smooth as possible.
Is the TSS visa right for you?
The first thing you should consider before applying for a further TSS visa is what your plans are in Australia. If you have been working for your sponsor for 3 years (2 years if transitional arrangements apply) on a TSS visa, you may want to consider applying for permanent residency through the Employer Nomination Scheme (ENS). In short, permanent residency may be available to TSS visa holders who are nominated in an occupation that is on the medium and long-term strategic skills list (MLTSSL). There is an age requirement for applicants for the ENS application where an applicant must not have turned 45 years of age (unless exempt). If permanent residency is important to you, it may be something you want to consider applying for sooner rather than later.
Know your occupation code and stream
So, you’ve decided that permanent residency isn’t for you or that you’re not eligible for permanent residency. The first thing to consider when applying for a new TSS visa is to understand whether your nominated occupation code is on the short-term or medium/long-term occupation list.
The skilled occupation list is regularly reviewed and updated in Australia, and you will need to consider a number of things at each application including:
- ensuring that your occupation hasn’t been removed from the skilled occupation list;
- whether any caveats are attached to your nominated code.
It’s also important to note that if this is your second TSS visa lodged in Australia under the short-term stream, you may be prevented from lodging a new TSS visa in Australia (unless an international trade agreement applies to your circumstances). In other words, holders of TSS visas under the short-term stream can only “renew” their TSS visa once from within Australia.
Labour Market Testing – is it required?
Despite having worked for your employer, labour market testing (LMT) may still be required, particularly for those who were granted a 2-year visa, or those who had changed employers and had their sponsorship transferred to their current employer.
The Department is very strict with LMT requirements. Unless one of the exemptions apply, your employer will need to advertise and test the labour market for 28 days before they can re-offer you your role and renew your TSS visa.
This is important as LMT must be completed before a new TSS visa application can be lodged. It’s important to plan ahead and ensure that this LMT is completed well in advance of your TSS visa expiry date to ensure that you can lodge in time.
Substantial compliance
If you are applying for your new TSS visa in Australia there is a requirement that you have complied substantially with the conditions of your previous visa.
This is important if you had left your previous sponsor and have been out of work for over 60 days, or if you had been working in a different position outside of your nominated position. If you have been in breach of any visa conditions, you may find trouble in satisfying the substantial compliance requirements.
English test requirements
A lot of intra-corporate transferees may find that they were exempt from the English requirements on their first TSS visa entering Australia.
However, this exemption only applies to intra-company transferees. It may be possible to argue for applicants on foreign contracts that the renewal application is an extension of their intra-corporate transfer assignment, however for applicants who have been working on an Australian contract that may not be the case.
If you have localised in Australia you may find it strange that after 4 years of working in Australia, you are required to undertake an English for your new TSS visa application.
Finally, what about the kids?
These days it’s not uncommon to find the kids living at home until they’re 30, still ‘dependent’ on their parents. However, when renewing a visa with a child who has turned 18 years of age, you need to be aware that their visa will only be valid until the day before their 23rd birthday. These applicants may want to consider moving onto a permanent residency visa or consider what visa their children could move to as the children may not be able to remain in Australia for a second visa application.
Do you require further information?
We’ve worked closely with businesses to manage foreign workforces and with employees to maintain residence (permanent or temporary) in Australia. If you require any further information, feel free to contact our experienced team by email at [email protected] or by phone at +61 3 9016 0484.
