If you are already in Australia and were contemplating moving from a Subclass 457 or 482 Visa and applying for a Subclass 186 Employer Nominated Visa, COVID-19 may have impacted your period of employment (by either being stood down or forced to go on unpaid leave).
If you fall under these circumstances, you will be pleased to read about some changes made to Australian Migration Legislation made this week.
186 Employer Nominations Visa COVID Concessions
To be eligible for a subclass 186 Temporary Residence Transitional (TRT) visa you must hold a subclass 457/482 and have worked for your employer for at least three years full time.
This turned into a problem for many during the COVID-19 pandemic with many businesses being adversely affected and workers’ hours reduced or removed altogether as workers were asked to take unpaid leave.
The new legislation is excellent news for those impacted by the above scenario with the department stating that the amendments have been made;
..in response to the COVID-19 pandemic, which has severely disrupted Australia’s labour market. Many workers who are employed by businesses operating within Australia have been stood down, have had their hours reduced or have been required to take unpaid leave.
In response to this, the Australian Government has decided to ensure that these persons are not disadvantaged by the fact that they were temporarily stood down or had their hours reduced, by recognising this period of time as time that they were employed and, for the purposes of paragraph 5.19(5)(f) of the Regulations, as on a full-time basis. (i.e the Subclass 186 TRT Regulations).
Concessions for Employer Nominated Permanent Resident Applicants impacted by COVID-19
So what this means is that from 24 November 2020, Subclass 457 and Subclass 482 visa holders who are applying for an Employer Nomination Scheme Subclass 186 visa through the Temporary Transition Stream are able to count periods of employment with reduced hours, reduced salary or unpaid leave (including being “stood down”) towards the required employment experience criteria for this permanent visa.
A Subclass 186 visa applicant can now include time spent working at reduced hours, while on unpaid leave or while being stood down towards the employment experience requirement providing that:
- It occurred during a concession period and during the period of four years (or three years through the two-year pathway) immediately before the Subclass 186 nomination application is lodged;
- During this period, they remained employed in the nominated position; and
- They would have otherwise been employed on a full-time basis were it not for COVID-19.
The concession period is from 1 February 2020 and currently, no end date has been set.
Age Exemption Criteria – Fair Work High Income Threshold
An applicant for a Subclass 186 visa through the Temporary Transition Stream can be exempt from the age criteria if they:
- Have worked for their sponsor in the nominated position for three years; and
- Their earnings for each year were at or above the relevant Fair Work High Income Threshold (FWHIT).
The Department of Home Affairs has advised that concessions will also apply to individuals who would have otherwise qualified for this exemption but were impacted by the COVID pandemic. They now would need to satisfy the following high-income criteria:
- have been employed by their nominating employer in their nominated occupation at all times during the three years immediately before applying;
- for each of the three years that did not include any part of the concession period, had annual earnings that were at or above the FWHIT; and
- for any year that included any part of the concession period, had annual earnings that were equal to or greater than the relevant pro-rata threshold.
Application of the new legislation
These COVID 19 concessions will apply to all new Subclass 186 visa applications through the Temporary Transition Stream lodged on or after 24 November 2020. They will also apply to lodged and pending Subclass 186 visa applications that were lodged on or after 1 February 2020.
Where this new legislation does not apply
- If your employment has been terminated, by your nominating employer, and you were unemployed during the concession period.