When the Department of Home Affairs (‘DHA’) introduced the TSS visa, it ensured transitional arrangements were in place for clients who held or had applied for a subclass 457 visa on 18 April 2017 so that they were not unfairly affected when they applied for permanent residence via the Employer Nomination Scheme (‘ENS’). Since then, we have become familiar with these ‘grandfathering’ provisions and the concessions they afford clients who come within this cohort.
Yesterday, the DHA confirmed that yet another concession would apply to this cohort of clients. The DHA confirmed that the policy on ENS nominations would be updated to reflect that standard nomination requirements must be met for clients who come within the transitional arrangements, with the following further exception: the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or TSS visa will remain at two years. However, decision makers can accept 23 months as having satisfied this requirement. This is to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked.
This policy shift is a welcome change for many employees, who now have further clarity about their pathway to permanent residence. Up until this point, there was considerable debate within the migration profession about when a subclass 457/TSS visa holder actually met the ‘two-year’ mark with their nominating employer. At Nomos, like many others, we took the conservative approach and advised clients holding a two-year subclass 457 visa that they would need to make a further TSS visa application to make sure there was no question carry them over the two-year mark, so that they could clearly evidence the requirement as set out in the Regulations – that is, that they had a full two years of working with their nominating employer as the holder of a subclass 457/TSS visa. Only then could we proceed with an application under the ENS. In our view, this was the most pragmatic way of ensuring the ENS application had the best prospects of success.
Many employers are also relieved at this policy update, which will save them from having to pay for a new TSS visa application for any staff who may have otherwise fallen short of meeting the ‘two-year’ requirement by as little as one day. Applying for a new TSS visa costs thousands of dollars, factoring in the DHA application charges and the training contribution charge payable towards the Skilling Australia Fund (‘SAF’) levy.
The law underpinning this policy change has not yet been updated, but it will be “in due course”. Similarly, whilst the policy will not be updated until 18 August 2019, the DHA has advised that this has immediate effect and that processing officers have been told that they should apply this policy immediately.
If you think that you or one of your employees may be positively affected by this change, please contact us as soon as possible.
*This is general information only, as at the date of publication, and should not be interpreted as legal advice. For an accurate and current assessment of your circumstances and visa options, please contact us to receive this advice.
