PR pathway for specified SC 482/457 STSOL holders

Legislative Instrument Migration (Specified persons and periods of time for regulation 5.19) Instrument (LIN 22/038) 2022 replaces IMMI 18/052 which was self-repealed on 18 March 2022.

This new Instrument provides a pathway to employer-sponsored permanent residency for an additional cohort of SC457/482 visa holders through the Temporary Residence Transition stream of the employer nominated/sponsored schemes as announced by Minister Hawke on 25 November 2021.

After 30 June 2022 a new cohort of ‘specified persons’ will be eligible to be nominated under the TRT stream of the SC 186 and in some cases the RSMS SC 187.

For Reg 5.19(5)(a)(i),(ii) or (iii) a visa holder who falls within these three categories is provided with this pathway.

The original Instrument IMMI 18/052 which provided the transitional operation of Reg 5.19 was self-repealed on 18 March 2022 and the definition of persons for Reg 5.19(5)(a)(iii) is now replaced with a new definition with this current Instrument.

This Instrument introduces a number of definitions in making these new Regulations:

Identified person has the meaning given by the Reg 5.19(5)(c) of the Regulations.

Specified person for Reg 5.19(5)(a)(iii) is a person who holds an SC 482 in the Short Term stream and is specified in subsection 4(2) or (3) of this Instrument as:

• a person who held an SC 457 or was an applicant for an SC 457 that was subsequently granted,

OR

• commencing on 1 July 2022 – had been in Australia for at least 12 months …[cumulatively] … between 1 February 2020 and 14 December 2021

AND

• at the time of application is employed by a person actively and lawfully operating a business in Australia.

Subclass 457 visa – a Subclass 457 (Temporary Work (Skilled)) visa in force before 18 March 2018.

Periods of time – currently under Regs 5.19(6) and (5)(e)(f) and (g) the periods of time the visa holder must work for the employer to be eligible for TRT are specified as 3 years in 4 years or 2 years in 3 years if Reg 5.19(5)(e) applies.

Sections 5, 6 and 7 of this Instrument specify the periods of time specified 457 visa holders are required to work to be eligible for TRT pathway and provide definitions of COVID impacted work periods during these periods.

In Section 5 for specified 457 visa holders, the periods of time are specified as:

• Reg 5.19(5)(e)(f) and (g) the period of 3 years is specified instead of 4 years – (e) relates to the visa held, (f) the position and (g) the occupation (for those covered by LIN 19/212).
• Reg 5.19(5)(e) the specified 457 visa holder must have worked for 2 years in the 3 years immediately before the application is made holding a SC 457 or 482 visa.
• Reg 5.19(5)(f) the applicant must have worked in the position for a period of 2 years in 3 years.
• Reg 5.19(5)(g) the applicant must have worked in the occupation for a period of 2 years in 3 years (LIN 19/212)

(*The 3 years in 4 years will remain for all other visa holders).

Section 6 provides allowances for a COVID-19 reduced work period.

A COVID-19 reduced work period is a period during the concession period specified in Reg 1.15N(1) – commencing on 1 February 2020 and ending on a day yet to be specified by the Minister.

For Section 6 (2) of this Instrument, the COVID-19 reduced work period is any period during the concession period where the applicant was not employed in the nominated position on a full time basis or was on unpaid leave from that employment as a result of the COVID-19 pandemic but would usually have been working full time, if not for COVID.

For Reg 5.19(6) and reg 5.19(5)(f)(i) the time period is:

• for specified 457 visa holders – a total of at least 2 years less any COVID-19 reduced work period (not including any other unpaid leave).
• for any other person – a total of at least 3 years less any COVID-19 reduced work period (not including any other unpaid leave).

Section 7 makes provision for a COVID-19 unpaid leave period.

A COVID-19 unpaid leave period for Section 7(2) of this Instrument is any period during the concession period where the applicant was not employed in the nominated occupation and was on unpaid leave from that employment as a result of the COVID-19 pandemic.

For reg 5.19(6) and Reg 5.19(5)(g) the time period is:

for specified 457 visa holders – a total of at least 2 years less any COVID-19 unpaid leave period (not including any other period unpaid leave).
for any other person – a total of at least 3 years less any COVID-19 unpaid leave period (not including any other period of unpaid leave).

Section 8 specifies an exemption as permitted by Reg 5.19(8)(b) for having worked in an occupation that was specified in a legislative instrument that specifies an occupation list mentioned in Reg 5.19(5)(c). This applies to three different groups of applicants:

1. A specified person under Section 4(2) a specified 457 visa holder;

2. A specified person under section 4(3) of this Instrument …commencing on 1 July 2022.

3. A person who continues to hold a SC 457:

• after 18 April 2017, applied for a SC 457 visa that was subsequently granted,
• has been in Australia for a period of at least 12 months between 1 February 2020 and 14 December 2021,
• and, at the time of application is employed by an actively and lawfully business in Australia.

NOTE: The provisions of IMMI 18/052 will continue to be supported while cases before the AAT are processed as they have been included in this Instrument.

This is a summary of this Legislative Instrument and Explanatory Statement, members should review these two documents in full before lodging applications for this visa.

This Instrument commences on 18 March 2022.

Changes to ‘COVID’ SC 408 visa

Legislative Instrument Migration (COVID-19 Pandemic event for Temporary Activity (Subclass 408) visa) Instrument (LIN 22/046) 2022 removes:

• The requirement to be working or have an offer of work in a key sector to be eligible for the grant of a Subclass 408 AGEE stream visa.
• The specified class of persons who are unable to depart Australia.

This Instrument applies to all visa applications made on or after 21 February 2022. An applicant who made an application before that date must be in a specified class of person for the previous instrument LIN 20/229.

Applicants must hold a relevant temporary visa with work rights that is 90 days or less from ceasing or have held such a visa that was in effect not more than 28 days from the date of application.

Applicants must be in Australia and have arrived before 21 February 2022.

Evidence of employment or offer of employment should be attached to the application.

The Instrument also provides a nil VAC for Para 1237(2)(a)(i) of Schedule 1 of the Migration Regulations.

The MIA has requested information from the Department on how it will handle the backlog of applications made in the previous ‘unable to depart’ stream and will inform members when this is received.

This is a summary of this Legislative Instrument and Explanatory Statement, members should review these two documents in full before lodging applications for this visa.

This Instrument repeals LIN 20/229 and commenced 16 March 2022.