Virginia, US

In 2012 the age threshold under the Employer Nomination Scheme (ENS) and Regional Sponsored Migration Scheme (RSMS) increased from 45 to 50 years. This also saw the replacement of the “exceptional circumstances” waiver, meaning it is no longer possible to argue your unusual or specialised skill set warrants the waiving of the age criteria – under the current rules there is no discretion, you either meet the age exemptions or you don’t.

Your 50th birthday will also rule out General Skilled Migration (GSM) as a permanent residence option.

But it isn’t all doom and gloom. With the right advice, there may be a permanent residence pathway available for you.

What are the ENS/RSMS age exemptions?

If you turn 50 before you lodge an application for ENS/RSMS, you will only be eligible to apply if you:

  • are nominated as a minister of religion, by a university as a senior academic, or by a government agency as a researcher, scientist or technical specialist, or  
  • are applying under the Direct Entry Stream and you hold a New Zealand Special Purpose visa (subclass 444) or New Zealand Family Relationship visa (subclass 461). You must have been working for your nominating employer for at least 2 years in the 3 years immediately before making the visa application, or
  • are applying under the Temporary Resident Transition Stream and have been working for your nominating employer for at least 4 years and have been earning (excluding mandatory superannuation contributions) at least “the high income threshold” for each of those years. This threshold is set under the Fair Work Act, and is indexed on 1 July each year. The thresholds for the previous four years are: 

 

2013/14

$129,300

2014/15

$133,000

2015/16

$136,700

2016/17

$138,900

 
 
What options do I have if I don’t meet the ENS/RSMS age criteria or exemptions?

If you are 50 or over, I recommend you seek advice on the following –

1. Working with your employer to plan for your future eligibility under the ENS/RSMS exemptions.

2. Your spouse or de facto partner’s options.

If you are in a de facto or spousal relationship with an Australian Citizen or an Australian permanent resident, you may be eligible for Partner Migration - there is no age limit.

If your partner is not an Australian Citizen/permanent resident and they are under 50 years, we can also advise on whether they have ENS/RSMS or GSM options in their own right.

3. Do you have any family in Australia who are Australian permanent residents/citizens or eligible New Zealand citizens?

If yes, you may have options under the Family program.

If either of your parents were born in Australia or holds/held Australian citizenship, you may be eligible for citizenship by descent or resumption.

4. Do you have a business/investment background?

Age restrictions apply (if you are 55 and over) to some applicants for the Business Innovation and Investment program visas (depending on the particular stream being applied for).

Where age restrictions do apply, these can be waived where the nominator (for example, the Business Migration Centre, Western Australia) is of the view that the visa applicant is proposing a business or investment activity of exceptional economic benefit to that state or territory.

For further information on your Australian permanent residence options, please contact me at Fragomen Perth or your local Fragomen contact.