Immigration Breaking News

The new PR Pathway is for 457/482 visa holders through the Temporary Residence Transition Stream is a political promise by the Liberal Federal Government subject to no change being made by a new Labour government, should Labour win the national elections later this month (May 2022) and choose to change the law, which only becomes effective on 1 July 2022. We have to wait and see what happens.

This new change is pursuant to- Reg 5.19 (5) (a)(iii) “for a person specified in a legislative instrument made by the Minister for the purposes of this subparagraph–a Subclass 482 (Temporary Skill Shortage) visa in the Short-term stream” The remainder of Regulation 5.19 remains unchanged.

• A person who held a 457 or was an applicant for a 457 that was subsequently granted;
  OR
• Had been in Australia for at least 12 months between 1 February 2020 and 14 December 2021(the “Covid Period”);
  AND
• At the time of the application is employed by a person actively and lawfully operating a business in Australia.

Interpretation of the Criteria

The Applicant for the Transitional ENS Subclass 186 must:

1. Have been lawfully residing in Australia for at least 12 months during the Covid Period (no mention of type of visa or working requirement- just lawful presence in Australia);
2. Be on a 482 Short Stream Visa occupation for at least 3 years with the same 482 Sponsor at time of lodging the ENS Application. This may require current 482 visa holders to apply for a further 482 Visa in order to comply with the 3 year requirement. The applicant must meet 3 out of the past 4 year full-time work requirement for the Sponsor with the exception of Covid allowed reduced hours which will count as full-time work.

Note: Can only apply for up to three (3) 482 visas onshore-
Sunset Clause: You cannot apply for a 3rd onshore 482 visa after 1 July 2023.

Covid-19 Reduced Work Period

From 1 February 2020 any covid reduced hours, until otherwise advised by Immigration, will be considered as full-time.

Age Exemption for ENS TRT
Reg 186.221(b) allows an exemption from the age requirement for specified persons, in this category being legacy 457 workers.

Definition of a Legacy 457 Worker

Means a person who:

• held or applied for 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 “Covid Period”).
  No age limit has been specified for Legacy 457 workers in this Instrument.

Schedule 3 – Third onshore application for 482 visas

This amendment allows 482 holders to apply for a third 482 visa onshore where they:

• were in Australia as the holder of a 482 visa in the Short-term stream for periods that total at least 12 months between 1 February 2020 and 14 December 2021; and
• make that further application before 1 July 2023 unless the Minister specifies a later date.

Please note that this sunset clause period of 1 July 2023 may require you to apply for your third 482 Visa Application prior to 1 July 2023 to ensure you meet the 482 3 year visa requirement with the same employer”.

Details of the Partner Visa Change Bill were released today which target proposed changes to the partner visa program to avoid mandatory offshore activity due to the COVID19 pandemic to a single visa. Subclass 309 Visas are affected. 

The “Migration Amendment (Common Sense Partner Visa) Act 2020”, a private members bill by MP Julian Hill, targets a single visa – the subclass 309 temporary partner visa, and alters the legislation to enable that visa to be granted regardless of whether the applicant is onshore in Australia or offshore. Currently, applicants for this visa must be offshore at the time of grant of the visa.

Contact us immediately if the Partner Visa Change Bill Subclass 309 Visa may affect you and your spouse. We can help guide you through the complex and difficult immigration process due to COVID-19 changes. 

While the bill, if enacted, would address travel restriction concerns for subclass 309 applicants, this bill does not extend the benefit of onshore grants to other visa subclasses including:

• Prospective Marriage (subclass 300), Adoption (subclass 102)
• Child (subclass 101)
• Dependent Child (Subclass 445) 

 The Department of Home Affairs has indicated it will be changed in 2021 to allow visa grant while onshore in Australia:

“It is intended that changes will be implemented in early 2021 that would allow certain family visas, which have been applied for outside Australia, to be granted while the visa applicant is in Australia.  This temporary concession will be for people who are in Australia and are not able to travel offshore to be granted the visa due to COVID-19 related border closures.” (DHA Website Statement – https://covid19.homeaffairs.gov.au/covid-19-visa-concessions)

A significant issue facing onshore partner visa applicants who have been unable to leave Australia is the Schedule 3 criteria which affect onshore partner visa applicants who hold only a bridging visa or no visa. The threshold for a waiver of the Schedule 3 criteria has increased considerably in recent years, and a temporary waiver of enforcement of the Schedule 3 conditions has not been formally proposed. 

Subclass 300 Prospective Marriage Visa (PMV)

Offshore subclass 300 Prospective Marriage Visa (PMV) applicants and visa holders remain concerned that as fiances of Australians are not given an automatic exemption from the travel ban to Australia, any hopes of entering Australia on a PMV are remote at present. 

The Australian partner visa program is set to undergo the most substantial changes in years in 2021 when. The requirements for these visas will be changed to include:

• An English test
• Splitting of the sponsor application and visa application
• Thus, creating a scenario where a sponsor must first apply for a sponsorship application prior to a visa applicant being able to apply for a partner visa and receiving a bridging visa allowing the applicant to remain in Australia from that point until the partner visa is decided.

 Implementation of these changes is planned for 2021, however, no specific information has been announced as to when in 2021 these changes will be made.

Shakenovsky & Associates will provide updated coverage of changes in immigration policy and requirements as they develop. Visit our immigration law services page often and contact us directly with any questions about your personal situation.