The significant changes to the Employer Sponsored visa categories in March 2018 limited access to permanent residency for many applicants. The assessment of eligibility for a Subclass 186 – Employer Nomination Scheme (186 visa) visa under the Temporary Residence Transition (TRT) stream has become increasingly complicated, and requires a comprehensive analysis of an applicant's circumstances. Transitional provisions, commonly referred to as grandfathering provisions, are available to certain Subclass 457 – Temporary Work visa ('457 visa') holders applying for a 186 visa under the TRT stream, if they held or had applied for a 457 visa on or before 18 April 2017.
Grandfathering (transitional) arrangements for 186 visas
Where a 186 visa nomination under the TRT stream is lodged on or after 18 March 2018 from a client who falls within the grandfathering provisions, the standard nomination requirements apply with the exception that:
- occupation list requirements will not apply. Therefore, you may still apply if your occupation is no longer on the current list;
- the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or Subclass 482 – Temporary Skills Shortage visa ('482 visa') will remain at two years;
- the relevant age limit is 50 (instead of 45).
However, the application of these provisions is not always so straight forward. We have successfully assessed clients in many different circumstances who otherwise thought they might not fall within the grandfathering provisions.
Scenario 1: Change of employer after 457 visa grant
Our client was granted a 457 visa in December 2016, however, in May 2017, he changed his employer. Even though our client changed employers, he held a 457 visa on 18 April 2017, and therefore would still fall within the grandfathering provisions. Our client was, therefore, eligible to apply for a subclass 186 under the TRT stream in May 2019 after completing 2 years of employment with his new employer sponsor.
Scenario 2: Held 457 visa as a secondary applicant in April 2017
Our client was granted a 482 visa in March 2018 with a nominated occupation on the Short-term Skilled Occupation List (STSOL) and came to us to determine her eligibility for a 186 visa. On the face of it, she would not qualify for a 186 visa under either stream due to her nominated occupation being on the STSOL. However, after further enquiry, we learned that she had in fact previously held a 457 visa on 18 April 2017, however as a secondary applicant. This information was critical because the grandfathering provisions do not make a distinction between primary and secondary visa applicants. What this meant for our client is that in March 2020 she will become eligible to apply for a 186 visa under the TRT stream.
Scenario 3: 457 visa held in April 2017 cancelled
Our client previously held a 457 visa on 18 April 2017, however, his 457 was cancelled by the Department of Home Affairs (DHA). He applied for a review of the cancellation with the Administrative Appeals Tribunal (AAT), and in May 2019 the AAT set aside the decision to cancel his 457 visa, and his visa was subsequently reinstated. If a visa cancellation is set aside it is as if the cancellation never occurred. This meant that our client would fall within the grandfathering provisions in an application for a 186 visa under the TRT stream.
Scenario 4: 457 visa holder left Australia for 1 year
Our client held a 457 visa from 2015 until May 2017 with company A. He then left Australia and went overseas for 1 year from May 2017 – May 2018. His 457 visa was later cancelled by the DHA due to the cessation of employment. However, he returned to Australia in June 2018 on a 482 visa sponsored by a new employer. This meant that as he held a 457 visa on 18 April 2017, he would fall within the grandfathering provisions and would become eligible to apply for a 186 visa under the TRT stream in June 2020.
Scenario 5: 457 visa application made before April 2017 refused
Our client applied for a 457 in March 2017, however it was refused by the DHA and he subsequently appealed the decision to the AAT. The appeal was successful and the AAT remitted the application to the DHA and our client was then granted a 457 in March 2019. Because our client had applied for a 457 on or before 18 April 2017, and that visa was subsequently granted he falls within the grandfathering provisions and can apply for March 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.