T the impact of COVID-19 on temporary work visa holders in Australia has resulted in a number of people on 457 / TSS 482 visas either losing their job and looking for a new sponsor within 60 days or being stood down – trying to survive financially with only access to their superannuation – while Australian employers work to hold on to their business until the economy stabilises.
Either way, many temporary visa holders in Australia are understandably anxious about their future in Australia.
Pathways for Temporary Work Visa Holders to Australian Permanent Residence
The most common pathway for a Temporary Work visa holder to Australian Permanent Residence is where the Australian business sponsoring the temporary visa holder wants to sponsor for Australian Permanent Residence under the Employer Nomination Scheme (ENS) Visa program.
The ENS Visa program enables employers to nominate specified occupations from a Medium Long Term Occupation List for Australian Permanent Residence. The employer can nominate a position for permanent residence after the temporary sponsored worker has worked in the position for at least 3 years or has completed a formal Skills Assessment in an occupation on the list and has 3 years of work experience. Applicants must generally be under 45 years of age and meet English, health and character requirements.
There are fewer onerous requirements for 457 Transitional Applicants, which is someone who was in Australia as the holder of a Subclass 457 visa on 18 April 2017 when the Government announced the 457 program was being abolished. The 457 to PR transitional arrangements are only available for ENS applications lodged prior to 18 March 2022.
Temporary work visa holders in Australia can also consider Skilled Migration options where they complete a formal Skills Assessment and meet a points test to be invited by the Australian Government to apply for a skilled migration visa or a Global Talent Visa where they are highly skilled and recognised as a leader in their field. Partners of Australian Citizens or Australian Permanent Residents may also transition from their temporary work visa to Australian Permanent Residence via the Partner Visa program.
Impact of COVID-19 on options for Australian Permanent Residence
Temporary work visa holders intending to transition from their 457 or TSS 482 visa to Australian Permanent Residence under the Employer Nomination Scheme are not affected by formal Labour Market Testing requirements like the Temporary employer-sponsored visa, as this is not a requirement for the Subclass 186 Employer Nomination Scheme application. Nevertheless, there is still a requirement that employers demonstrate that there is a genuine need to employ the person to work in the position and this assessment involves considering any redundancies, reduction of hours or pay by the business.
The transition from a temporary work visa to the Employer Nomination Scheme is also dependant on the Skilled Occupation nominated for the 457 / TSS visa still being included on the relevant Medium Long Term Skilled Occupation List at the time of application for the ENS Nomination. As the economic impact of the COVID-19 crisis takes a deeper hold it will be open to the Australian Government to consider changes to this occupation list which could prevent temporary work visa holders from transitioning under the current ENS program. 457 Transitional Applicants who held a Subclass 457 visa on 18 April 2017 are exempt from this requirement so would not be affected by a change to the occupation list.
Criteria for the ENS Nomination Application which may also impact the transition of temporary work visa holders to Australian Permanent Residence due to COVID-19 include the following:
- the nominee to have been employed in the position in relation to which they hold the subclass 457/TSS visa for a total period of at least three years (not including unpaid leave) in the 4 year period immediately before the lodging of the nomination;
- the required period of employment to have been on a full-time basis;
- the visa applicant will be employed on a full-time basis in the nominated position for at least a further two year period;
- the nominator has sufficient financial capacity to employ the nominee for the next two years.
Skilled Migration for temporary work visa holders may also be impacted by COVID-19 by reducing the number of invitations and increasing the points test score requirements as seen in recent Skill Select Invitation Rounds. An application to apply for Skilled Migration will likely continue to be impacted as the Australian Government can ensure invitations are only being issued in industry areas where there are continuing skill shortages if there is a rise in unemployment in Australia.
Partner Visa applications by temporary work visa holders can be impacted if a temporary work visa holder has ceased employment for the sponsoring employer and there is still time to run on the temporary work visa. In these circumstances, even where the temporary work visa holder has applied for a Partner Visa, long delays in Partner Visa processing leave the temporary work visa holder unable to work for any other employer during the processing period and facing visa cancellation. Partner Visa Application Charges payable to the Department of Home Affairs on lodgement are also a deterrent in current economic times being $7,715.00.
Skilled Health Professionals holding temporary work visas in Australia
Medical practitioners and other skilled health professionals comprise almost 8,000 of the temporary work visa holders presently in Australia and with their skills in high demand during the Coronavirus crisis options for transition to Australian Permanent Residence may be considered if the demand continues into the future.
Possible pathways could include expanded use of the Global Talent Visa Program. The Global Talent Program uses a Distinguished Talent Visa generally available only to persons with an exceptional record of achievement and recognition in their field however it is flexible enough to be extended to support Australia’s skill needs where the demand for skilled health professionals continues into the future. There are 5000 visas made available in the current program year.
Speak With An Accredited Immigration Law Specialist
The above information is intended to be general information only. If you are a temporary work visa holder in Australia and need legal advice specific to your circumstances, please schedule an immigration advice conference with our Accredited Immigration Law Specialist to further discuss your options.