Held a 491 or 494 Visa? The 3-Year Rule Before You Apply for a 189 or 190

Many people on a regional provisional visa keep an EOI in SkillSelect for the Skilled Independent visa (subclass 189) or the Skilled Nominated visa (subclass 190). That is allowed, but there is a rule in the Migration Regulations that stops many of them from applying until they have held their regional visa for 3 years.

Who the rule applies to

The rule is tested at the time you lodge your 189 or 190 application. It applies if, at that time:

• you hold a Skilled Work Regional (Provisional) visa (subclass 491) or a Skilled Employer Sponsored Regional (Provisional) visa (subclass 494); or
• the last substantive visa you held was a 491 or 494. This catches people whose regional visa has ended and who are now on a bridging visa or are outside Australia without another substantive visa.

If it applies, you must have held that 491 or 494 for at least 3 years at the time of application. The wording is the same for both visas: clause 189.224A for the 189 and clause 190.215A for the 190.

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What the rule does not stop

• It does not stop you from keeping an EOI in SkillSelect. The test is applied when you apply for the visa, not when you submit your EOI.
• It does not affect the Permanent Residence (Skilled Regional) visa (subclass 191), which is the permanent visa designed for 491 and 494 holders.
• It does not apply if, at the time you apply, you hold a different substantive visa that is not a 491 or 494. Be careful here: the test looks at the visa you hold, or your last substantive visa, at that moment.

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What about exceptions?

The regulations allow the Minister to specify circumstances in a legislative instrument where the 3-year rule does not apply. The Department’s instructions refer to these circumstances but do not list them. Before you rely on an exception, check the current instrument or get advice. Lodging an application that cannot meet a Schedule 2 criterion usually ends in refusal, and the visa application charge is generally not refunded.

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Which visa should you aim for?

Your situation	What to consider
You hold a 491 and have held it for less than 3 years	A 189 or 190 application will not meet the 3-year rule unless an exception applies. Check your progress towards the 191 instead.
You hold a 494 and have held it for less than 3 years	The same rule applies. The 191 is the usual pathway, and employer-sponsored options may also be available.
You have held your 491 or 494 for 3 years or more	The 3-year rule is met. You can compare the 189, 190 and 191 on timing, requirements and cost.
Your 491 or 494 has ended and you are on a bridging visa	Your last substantive visa is still a 491 or 494, so the rule is counted against the time you held it.

Your invitation, points and every other 189 or 190 criterion still need to be met. If you are relying on employment points, read our guides on what counts as skilled employment for points and on why work in breach of visa conditions earns no points.

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What you should do now

• Check your grant date: work out the date you will have held your 491 or 494 for 3 years. A 189 or 190 lodged before then will not meet the rule unless an exception applies.
• Keep your EOI current: you can stay in SkillSelect while you wait, so keep your skills assessment, English and points claims up to date.
• Compare the 191: if you are working towards the subclass 191, check your progress against it before you commit to a 189 or 190.
• Check any exception carefully: if you think an exception applies, confirm it against the current instrument before you lodge.