Reminders for Short-Term Stream Renewals and Cessation of Transitional Provisions

March 22, 2021

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Country / Territory

At a Glance

This alert is a reminder about key provisions that apply to commonly-held immigration statuses in Australia:

  • Certain ‘short-term’ stream applicants who held more than one short-term stream Temporary Skills Shortage visa must be physically outside of Australia to submit a Temporary Skill Shortage visa application. Fragomen is currently liaising with the government to consider a concession for affected applicants, who may have difficulty leaving and re-entering Australia due to COVID-19 travel restrictions.
  • Certain permanent residence applicants through the Employer Nomination Scheme will no longer be able to benefit from transitional arrangements for current or former Subclass 457 visas starting March 18, 2022.

The situation

As a reminder of important provisions in Australian immigration law, certain short-term stream Temporary Skill Shortage (TSS) visa applicants are still precluded from lodging third TSS visa application from within Australia; and separately, Employer Nomination Scheme transitional provisions for certain current or former Subclass 457 holders will cease on March 18, 2022.

A closer look

POLICY DETAILS IMPACT

Limits to onshore renewal of certain TSS visa holders 

Under the current TSS visa regulations, applicants in the ‘short-term’ stream (for nominated occupations on the current Short-Term Skilled Occupation List) must be physically outside of Australia to make a valid TSS visa application if:

  • they have held more than one short-term stream TSS visa;
  • they were in Australia when the application for their most recent TSS visa was made; and
  • this requirement would not be inconsistent with any international trade obligation.

COVID-19 related travel restrictions and practical limitations mean that certain applicants currently holding TSS visas in the ‘short-term’ stream who are seeking to renew their TSS visa face difficulties departing Australia to apply for and be granted a third TSS visa in the short term. Similar difficulties arise in returning to Australia due to the current border restrictions and necessity to obtain travel exemptions.

We expect to see more TSS visa holders impacted over the coming 12 months, particularly where they have changed employers while in Australia.

Transitional provisions for certain current or former Subclass 457 visa holders applying for permanent residence will cease on March 18, 2022

Transitional arrangements currently apply to certain Employer Nomination Scheme (subclass 186) visa (ENS visa) applicants who held (or had applied for and were later granted) a Subclass 457 visa on April 18, 2017. Under these arrangements, ENS visa applicants in the Temporary Residence Transition stream are eligible to apply for permanent residence under the pre-March 18, 2018 requirements, specifically:

  • The maximum age limit is 50 years rather than 45 years;
  • The qualifying work period that the nominee must have worked for their nominating employer, in the nominated position, is two years instead of three years; and
  • The nominated occupation does not need to be on the Medium to Long Term Strategic Skills List.

 

These transitional arrangements for current or former Subclass 457 visas will cease on March 18, 2022.
  • Employees sponsored in occupations on the current ‘Short-Term Skilled Occupation List’ or in occupations that have been removed from the occupation lists, and employees aged between 45 and 50 who do not meet the current age exemption based on current and previous earnings above the Fair Work High Income Threshold (currently set at AUD 153,600) will be affected by the cessation of these provisions as they will lose the permanent residence pathway under the ENS.
  • Affected applicants should contact their Fragomen immigration professional to determine alternative pathways to permanent residence.

 

Background – submissions to government

In submissions to the Joint Standing Committee on Migration inquiry into Skilled Migration, Fragomen has highlighted the practical issues faced by ‘short-term’ stream TSS visa holders, recommending that COVID-19 specific concessions be implemented to enable applicants to apply for a third TSS visa from within Australia.

Looking ahead

  • Fragomen will continue to advocate for additional COVID-19 specific concessions to enable short-term stream TSS visa holders to apply for a third TSS visa from within Australia. In the meantime, TSS visa holders potentially impacted by the onshore renewal limitation will need to be assessed on a case-by-case basis to determine the visa options available to them.
  • It is unlikely that the transitional provisions for certain current or former Subclass 457 visa holders will be extended in the future. Fragomen can assist to identify and advise on employees who may be impacted by the cessation of these provisions to determine alternative pathways to permanent residence.

 

Fragomen will report on related developments.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].

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