Changes to 457, 186, 187 and Skilled Migration Programme announced on 18 April 2017: What does it mean and how does it affect you?


Australian Prime Minister Malcolm Turnbull announced on 18 April 2017 a significant reform to the employer sponsored skilled migration visas programme as well as the abolishment and replacement of the current subclass 457 visa.

While the abolishment of the subclass 457 Temporary Work (Skilled) visa and its replacement, a new Temporary Skill Shortage (TSS) visa will not happen until March 2018, there are many significant staged changes that will be implemented from 19 April 2017 until March 2018 which would affect existing and future visa applicant and holders of the affected visa subclasses.

As result of the announcement, we have received many queries concerning the implications on current 457 holders as well intended applicants of 457, 186, and 187 visas. This information pack summarises the changes that will occur and include a list of frequently asked questions (FAQs).

 

Firstly, on 19 April 2017, a new set of skilled occupation list was introduced:

 Old Skilled Occupation List  New (current) Skilled Occupation List
 Skilled Occupation List (SOL)  Medium and Long Team Strategic Skills List  (MLTSSL)
 Consolidated Sponsored Occupation list (CSOL)  MLTSSL and Short-term Skilled Occupations List  (STSOL) (also known as Combined list of eligible  skilled occupations)

 

If you apply for any of the following visas, you must nominate an occupation on the MLTSSL:

  • Subclass Independent visa (subclass 189)
  • Skilled Regional (Provisional) visa (subclass 489) – Family nominated
  • Temporary Graduate visa (subclass 485) – Graduate Work Stream
  • Employer Nominated Scheme (subclass 186) (after March 2018)
  • Regional Sponsored Migration Scheme (subclass 187) (after March 2018)
  • Temporary Skill Shortage visa – Medium-Term visa (when introduced in March 2018)

 

If you apply for any of the following visas, you must nominate an occupation that is on the Combined list of eligible occupations (i.e either on the MLTSSL or STSOL):

  • Employer Nominated Scheme (subclass 186) – Direct Entry stream (until March 2018 only)
  • Skilled Nominated visa (subclass 190)
  • Skilled Regional (Provisional) visa (subclass 489)
  • Temporary Work (Skilled) visa (subclass 457) (until March 2018 only)
  • Training visa (subclass 407)
  • Temporary Skill Shortage visa – Short-Term visa (when introduced in March 2018)

 

The occupation list changes do not affect invitation-based visa such as 189 and 190 whereby invitation to apply for the visa has been received prior to 19 April 2017.

Information published by the Department of Immigration and Border Protection about the reform can be found at http://www.minister.border.gov.au/peterdutton/2017/Pages/putting-australian-workers-first.aspx.

 

Changes affecting 457 visa

 Date of  Change  Nature of Changes  Pre-19 April 2017
 From 19  April 2017
  • Changes to occupations that can be nominated for 457 visa. Introducing Medium and Long-term Strategic Skills List (MLTSSL) and Short-term Skilled Occupations List (STSOL):
    • 216 occupations removed
    • 59 occupations will have nomination restriction (caveats) (applies to 457 visa only)
    • 24 occupations will have nomination restricted to regional Australia (caveats)
  • 457 visa grant period of 2 years if nominated occupation is not on the MLTSSL. Otherwise, 4 years.
  • Nominate an occupation that is on the Consolidated Sponsored Occupation List. No occupation specific nomination restriction.
  • 457 visa grant period of 4 years if business operated for more than 12 months, otherwise 1.5 years.
 From 01 July  2017
  • English salary exemption $96,400 removed.
  • Change to training benchmarks requirement.
  • Mandatory penal clearance certificate.
  • English requirement exempt if salary is at least $96,400.
  • Generally, no requirement for penal clearance certificate.
 Before 31  December  2017
  • Collection of TFN for 457 visa holders and other employer sponsored migrants for data matching with ATO.
  • Publication of sanctioned sponsors.
  • No collection of TFN.
  • No publication of sanctioned sponsor.
 From March  2018
  • 457 visa will be abolished and replaced with TSS visa.
  • TSS visa will have two streams:
    • Short-Term stream – 2 years visa
    • Medium-Term stream – 4 years visa

 

Changes affecting 186 ENS and 187 RSMS visa

 Date of  Change  Nature of Change and Effect  Pre-19 April 2017
 From 19  April 2017
  • Changes to occupations that can be nominated for 186 ENS (Direct Entry steam) visa – Direct Entry stream) (does not affect 187 RSMS visa or 186 RSMS (Temporary Residence Transitional stream) visa. Introducing Medium and Long-term Strategic Skills List (MLTSSL) and Short-term Skilled Occupations List (STSOL):
    • 216 occupations removed
    • 24 occupations will have nomination restricted to regional Australia (caveats)
  • Nominate an occupation that is on the Consolidated Sponsored Occupation List. No occupation specific nomination restriction.
 From 01 July  2017
  • English language requirement: IELTS of 6 required in each component.
  • Maximum age of 45 at the time of application for Direct Entry stream.
  • Maximum age of 50 at the time of application for Temporary Residence Transitional stream (current requirement).
  • Only the Direct Entry stream requires competent English (for IELTS, 6 in each component). Vocational English (for IELTS, 5 in each component) is required for Temporary Residence Transitional stream.
  • Maximum age of 50 at the time of application both Direct Entry and Temporary Residence Transitional stream.
 Before 31  December  2017
  • Collection of Tax File Number (TFN) for 457 visa holders and other employer sponsored migrants for data matching with ATO.
  • Publication of sanctioned sponsors.
  • No collection of TFN.
  • No publication of sanctioned sponsor.
 From March  2018
  • MLTSSL will apply for both 186 (ENS) and 187 (RSMS) visas with additional occupation available for 187 RSMS.
  • Employer must pay the Australian market salary and meet the Temporary Skilled Migration Income Threshold (TSMIT) which is currently $53,900.
  • The period before eligible to apply for permanent residence through the Temporary Residence Transitional stream extends from 2 years to 3 years.
  • At least 3 years’ relevant work experience.
  • Maximum age of 45 at the time of application for all applicants.
  • Strengthened training requirement.
  • For 186 ENS, nominate an occupation that is on the Consolidated Sponsored Occupation List.
  • For 187 RSMS, nominate an occupation that is at ANZSCO skill level 1 to 3.
  • Employer must pay the Australian market salary but do not need to meet TSMIT.
  • The period before eligible to apply for permanent residence through the Temporary Residence Transitional stream is 2 years.
  • No need for work experience for 187 RSMS.
  • Maximum age of 45 at the time of application with certain exemptions.
  • No training requirement for 187 RSMS. For 186 ENS, training requirement same as 457.

 

Key Difference: The to be abolished 457 visa and Future TSS visa

   457  TSS: Short-  Term visa  TSS: Medium-  Term Steam  visa
 Ability to renew visa onshore  Unlimited  Once only  Unlimited
 Pathway to 186/187 visa  After 2 years  Not possible  After 3 years
 Occupation  STSOL  STSOL*  MLTSSL*
 English language requirement
 IELTS of 5, min. 4.5 in each testing  component  Y  Y
 IELTS of 5 in each testing component  Y
 Genuine temporary entrant requirement  Not applicable  Y  Not applicable
 2 years work experience  Limited  occupations  Y  Y
 Labour marketing testing (LMT)  Limited  occupations^  Y^  Y^
 Minimum market salary rate and meet  TSMIT  Y  Y  Y
 Non-discriminatory workforce test  Not applicable  Y  Y
 Strengthened training requirement  Y  Y  Y

* Additional occupation available to 187 RSMS

^ Not required where international obligations applies (such as Free Trade Agreement)

 

Frequently Asked Questions (FAQs)

It is important to note that apart for the Medium and Long-term Strategic Skills List (MLTSSL) and Short-term Skilled Occupations List (STSOL) that came into effect on 19 April 2017, none of the other announced reform has been legislated into law. Therefore, the FAQs are only based upon analysis of currently available information.

 

Q1: I am currently holding a 4 years subclass 457 visa granted before 19 April 2017, am I still eligible to apply for subclass 186 ENS visa under the Temporary Residence Transitional stream (commonly known as 457 transition to 186) after having worked for 2 years?

A: Based on the currently available information, you will not be affected by the change. Specifically, in relation to nomination of occupation, the current 186 ENS and 187 RSMS Temporary Residence Transitional stream only requires an applicant to have worked in the nominated occupation on subclass 457 visa(s) for at least 2 years in the 3 years immediately before the nomination application. It does not require the nominated occupation under the Temporary Residence Transition stream to be on any skilled occupation list.

 

Q2: I am currently holding a 1 year/1.5 years subclass 457 visa granted before 19 April 2017, can I apply for a further subclass 457 visa to accumulate 2 years working requirement and be eligible to apply for subclass 186 ENS/187 RSMS visa under the Temporary Residence Transitional stream after March 2018?

A: As long the nominated occupation is on the STSOL when you want to apply for a further 457 visa, you can apply before the 457 visa is abolished in March 2018. At this stage, it is not entirely clear whether the current 186 ENS and 187 RSMS Temporary Residence Transitional stream will be available to 457 visa granted on or after 19 April 2017 for occupation that is not on the MLTSSL. However, there was no legislative change on 19 April 2017 to the 2 years transition period from 457 to 186 ENS/187 RSMS so to restrict it to 457 visa granted before 19 April 2017. For that reason, we believe it is highly likely you will continue to be eligible to apply for the subclass 186 ENS or 187 RSMS visa under the Temporary Residence Transitional stream after March 2018 when you have worked in the nominated occupation on subclass 457 visa(s) for at least 2 years.

 

Q3: I am planning to apply for the subclass 186 ENS/187 RSMS visa under the Temporary Residence Transitional stream after 1 July 2017. What is the English requirement?

A: Based on the currently available information, it appears you may need to meet IELTS scores of 6 in each four testing component even if applying through the Temporary Residence Transitional stream.

 

Q4: I have already lodged a 186 ENS nomination and visa application under the Direct Entry Stream before 19 April 2017 but is still in processing and the nominated occupation has been removed. Would it affect my application?

A: No, the changes to the occupation list will not affect already lodged 186 ENS applications.

 

Q5: I have already lodged 457 nomination and visa applications before 19 April 2017 but is still in processing, the nominated occupation is on the STSOL but not on the MLTSSL. This is my first 457 application with my current/prospective employer. If the 457 visa is granted how long would it be valid for? Can I apply for the subclass 186 ENS or subclass 187 RSMS visa under the Temporary Residence Transitional Stream after 2 years?

A: If the nominated occupation is not on the MLTSSL, any 457 visa granted on and after 19 April 2017 will be for only 2 years. Due to the Temporary Residence Transitional stream under the 186 ENS and 187 requiring an applicant to have worked in the nominated occupation on subclass 457 visa(s) for at least 2 years in the 3 years immediately before the nomination application, it is therefore not possible to apply under the Temporary Residence Transitional stream with a 457 visa of only 2 years validity. This is because the earliest time to meet the 2 years eligibility period to apply under the Temporary Residence Transitional stream will be 2 years and 1 day after the date of 457 visa grant and that you must hold a valid 457 visa at the time of the 186 ENS/187 RSMS application. Thus, a 2 years 457 visa is not sufficient time.

 

Q6: I am not currently holding a 457 visa but I am planning to lodge a 457 nomination and visa application. The nominated occupation is on the STSOL but not on the MLTSSL. If the 457 visa is granted how long would it be valid for? Can I apply for the subclass 186 ENS or subclass 187 RSMS visa under the Temporary Residence Transitional Stream after 2 years?

A: Same as the answer to Q5.

 

Q6: I have already lodged 457 nomination and visa applications before 19 April 2017 but is still in processing, the nominated occupation has been removed on 19 April 2017. That is, the occupation is not on the STSOL or the MLTSSL. How would this affect the applications?

A: Due to the nominated occupations being removed, the nomination and visa applications cannot be approved and granted. The Department of Immigration have indicated that in these situations, applicants should consider withdrawing the application and seek for refund of the application fees paid.

List of removed occupation can be found at https://www.border.gov.au/Trav/Work/Work/Skills-assessment-and-assessing-authorities/skilled-occupations-lists/removed-skilled-occupations.

 

Q7: Which occupations are subject to nomination restrictions (caveats) and what are the restrictions?

A: Please see attached list titled “457 Nomination Occupation Specific Caveats” for details.

 

Q8: I have already lodged 457 nomination and visa applications before 19 April 2017 but is still in processing, the nominated occupation is subject to nomination restrictions (caveats). How would this affect the applications?

A: Based on the current available information, if the circumstances of your case fall within the nomination restrictions (caveats), then the nomination and visa applicants may not be approved and granted. We are however in the process of analysing these nominations restrictions (caveats) further to consider whether it is legally valid. If you fall into this situation, you may wish to contact us to discuss your situation further.

 

Q9: Is there any possible that I can apply for 186 ENS or 187 RSMS visa after March 2018 if I am not currently holding 457 visa granted before 19 April 2017 and my occupation is not on the MTSSL?

A: It does not appear possible unless the occupation is an additional occupation specified for regional Australia. At this stage, it is not yet known what these occupations will be. Based on the currently available information, all 186 ENS and 187 RSMS applications after March 2018, with the except of 457 visa holder applying under the existing Temporary Residence Transitional stream, will have to nominate an occupation on the MTSSL.

 

Q10: Will the occupations on the STSOL and MTSSL change in the future?

A: The occupation list can and will be revised from time to time. The Department of Immigration and Border Protection have indicated that the STSOL and MTSSL will be further reviewed on 1 July 2017.

 

For further information please contact us.

 

David Gu

Solicitor Director

Accredited Specialist, Immigration Law

 

19 April 2017

 

PDF link: http://proactivelegal.com.au/wp-content/uploads/2017/04/2017-04-19-457-and-Employer-Sponsored-Migration-Reform_reduced-1.pdf

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