• Grandfathering provisions 457 to ENS/RSMS

Grandfathering provisions 457 to ENS/RSMS announced

The Australian Government introduced significant changes to the employer sponsored visa program in 2017 and 2018, which effectively limited the ability of many sponsored visa holders to access a permanent residence pathway.

To ensure that visa holders already pursuing a permanent pathway were not disadvantaged, the Australian government introduced transitional arrangements for a protected visa cohort, to provide them with concessions to the new stricter requirements.

Grandfatering arrangements extended : the government has announced the extension of the grandfathering arrangements in place for 457 visa holders who held or had applied for a subclass 457 visa as of 18 April 2017.

Who does this apply to?

These transitional arrangements apply to the ‘protected visa cohort’, which is defined as anyone who:

  • held a subclass 457 visa on 18 April 2017; or
  • had lodged an application for a subclass 457 visa on or before 18 April 2017 that was subsequently granted.

The visa holder does not need to still hold the same subclass 457 visa to be eligible for these concessions. They can also hold a subsequent subclass 457 visa (457 visa), subclass 482 visa (TSS visa), or related bridging visa.

These visa holders will be able to access certain existing provisions under the TRT stream:

  • occupation requirements remain the same (i.e. there are no restrictions as long as the nominee continues to work in the same position for the same employer as approved for their subclass 457 visa);
  • the age requirement will remain at less than 50 years of age; and
  • the work experience requirement will remain as two out of the three years on a subclass 457, prior to nomination remaining at two years.
Client Cohort TRT requirements expected to apply
Client held a subclass 457 visa on 18 April 2017 and continues to hold this visa or a 457 visa/TSS visa/related bridging visa at time of application New requirements apply subject to the transitional provisions outlined below:

  • occupation list requirements will not apply
  • the age requirement will remain at less than 50 years of age with existing age exemptions still available, and
  • the minimum period an applicant is required to have been employed in their nominated occupation as the holder of a subclass 457 or TSS visa will remain at two years.
Client lodged a subclass 457 visa application on or before 18 April 2017 which was subsequently granted and continues to hold this visa or a 457 visa/TSS visa/related bridging visa at time of application
All other applicants New requirements apply (e.g. new age requirements (45) and three year transitional period on a temporary visa, MLTSSL).

Important:

  • Eligible overseas workers will need to lodge their permanent visa application within four years (by 18 March 2022).
  • Access to these transitions by an overseas worker is not dependent on continuing to hold the same subclass 457 visa or working for the same employer. The overseas worker can have since been granted subsequent subclass 457/TSS visa and/or been re-nominated by a different employer.
What will this mean for your 457/TSS visa employee after 18 March 2022?

Without the concessions, the applicant must demonstrate the ability to meet certain criteria including:

  • being under the age of 45 at time of application (unless exempt);
  • working in the nominated occupation for their sponsor for at least three years on a TSS/457 visa (the 3-year period stats when the visa holder starts working on their TSS/457 visa) out of the previous four years; and
  • the nominated occupation must be on Medium and Long-term Strategic Skills List (MLTSSL).
‘Legacy 457 Worker’ Age Limit Exemption for 186 Permanent Visa

As defined in the legislative instrument, a legacy 457 worker, for a subclass 186 visa application, means a person who :

  • held a Subclass 457 visa on or after 18 April 2017; and
  • was in Australia for at least 12 months between 1 February 2020 and 14 December 2021.

The age exemption relating to legacy 457 workers is intended to capture all Subclass 457 visa holders after the abolition of the Subclass 457 visa was announced on 18 April 2017. Those holding a Subclass 457 visa at the time of application for the TRT stream of the ENS visa will be eligible for the age exemption. Additionally, those who previously held a Subclass 457 visa but currently hold a TSS visa, will also be eligible for the age exemption, provided they meet the above requirements.

This exemption is available to applicants who applied for the TRT stream of the ENS visa on or after 1 July 2022 and is intended to be accessible for two years from its commencement.

This measure seeks to complement the pathway to permanent residence for short-term stream TSS visa holders and retain skilled migrants, who worked in Australia throughout the COVID-19 pandemic. As such, it is expected that individuals seeking to access this exemption would have worked on an appropriate temporary skilled work visa throughout the period of eligibility. Where this is not the case, applicants may still be eligible for the age exemption, however, DHA will consider the applicant meets all other requirements to the TRT stream of the ENS.

186 Temporary Residence Transition Stream Age Limit Exemptions

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