PATHWAY TO PERMANENT RESIDENT’S VISAFOR EMPLOYER NOMINATED VISA APPLICANTS

LEGAL NOTES

 

by LINDA GERONIMO-SANTOS,
Solicitor NSW & WA 

Migration Agent
#9687414
Member WIRO

 

•457 visa still in business


Prior to change of government, there were proposals to reduce number of 457 temporary workers visa for rationale that overseas workers are assuming work placements of Australian citizens.


In so far as notices we receive from the Department of Immigration and Border Protection, 457 visas are still on foot. The DIBP continues to issue this type of visa.


The same procedures apply, i.e. skills assessment (exempt in some occupations on CONSOL Lists (Occupations Lists). Some occupations may be exempt from skills assessment if there is sufficient number of years of work experience either here or abroad, and evidence of such experience is provided by the visa applicant.


IELTS or English test requirement is still at 5.0 on all IELTS 4 components; unless the visa applicant falls under the category of exemption from English proficiency requirements, i.e. coming from English speaking countries like USA, UK, etc., or having had medium of instructions in English for the last 5 years of study including secondary and post-secondary education.


•PATHWAYS TO PERMANENT RESIDENCY UNDER THE EMPLOYER NOMINATION SCHEME
There are several pathways for obtaining permanent residence visas via Employer Nomination Scheme (ENS).


•Subclass 186 – (a) temporary residence transitional stream visa
For subclass 457 visa holders who have worked for their employer in the nominated position for the last two years and the employer wants to offer them a permanent position that matches, or closely aligns with their subclass 457 occupation.


Criteria include:
•V
ocational English (IELTS 5), or be exempt ,No skills assessment required. `
,A health waiver may be available in limited circumstances who have an employer.
• Subclass 186 – direct entry stream
•This applies to applicants who are in Australia but do not hold a 457 visa, or have not held a 457 visa for the last 2 years, or are applying from overseas.
Criteria include:
Nominated in an eligible occupation
Competent English (IELTS 6.0), or be exempt
Positive skills assessment, and relevant work experience unless exempt
Health waiver Not available.
(c) Subclass 186 – the Agreement Stream
For applicants who are sponsored by an employer through a tailored labour agreement or a regional migration agreement, this visa is suitable. This applies generally to semi-skilled occupation. Criteria and requirements are specified in the relevant agreement. Health waiver not available.
•Subclass 187 – regional sponsored Migration Scheme (RSMS). This applies to visa applicants who wish to work in regional areas. There are likewise two options, transitional stream and direct entry stream.
• Conclusion


The above are excellent pathways for permanent resident’s visa if you meet the requirements. Processing time is faster as these visas are on priority processing list.


• Words of caution re the 457 visa holders
Some employers have policy where they refuse to sponsor a 457 employee for permanent residence visa until after 4 years of service; one reason is that the employee tends to leave employment once he/she receives permanent residence visa.


If this is the case, you may wish to look for another replacement sponsor and if you qualify under subclass l86 direct stream visa (higher IELTS requirement, etc.), you may not need to wait for your employer to sponsor you.


Please note that 457 visa holders, who leave their present employment by resignation or termination, are now given 90 days to locate a replacement employer.


For 457 visa holders who apply for ENS permanent residence visa (subclass 186 transitional stream), do note that if the employer company changes hands, i.e. the company is sold and is under new management, your 2 years 457 visa experience will not apply. It is likely that the nomination will be rejected, and if nomination is rejected, your visa application will also be rejected. It means not only that you lose your 457 visa status, you also become subject to S.48 rule, i.e. if your visa application is rejected, you will be required to return to your home country, subject to successful appeals that you will need to file within 21 days from rejection notice.


When in doubt, always seek the help of a professional.

 

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