COVID-19 Update: New concession arrangements for TSS / 457 visa holders applying for employer sponsored permanent residence

The COVID-19 pandemic has severely disrupted Australia’s labour market. Many workers who are employed by businesses operating within Australia have been stood down, have had their hours reduced or have been required to take unpaid leave. This includes Subclass 482 (TSS) and Subclass 457 (457) visa holders. You can read more about the obligations for employers and visa holders in the COVID-19 context here.

On 23 November 2020 the Department released several new legislative instruments which focus on addressing the disadvantages to certain Subclass 186 and 187 visa applicants who would have, but for COVID-19 related issues, been eligible for permanent residence.

Changes to duration requirements for 457 / TSS visa applicants applying under the Temporary Residence Transition stream of the ENS / RSMS visas (LIN 20/190)

To be eligible for a 186 or 187 visa under the TRT stream requires an applicant to be employed on a TSS / 457 visa for a duration of at least 3 years in the last 4 years before being eligible for permanent residence . This duration of employment must be on a full-time basis (not including any periods of unpaid leave).

“Transitionary” provisions also exist for individuals who either held or had made a Subclass 457 visa on or before 18 April 2017 which was subsequently granted (see here). Among other things, these individuals can ordinarily apply for permanent residence under the TRT stream if they were employed on a TSS / 457 visa for a duration of at least 2 years (in the last 3 years). Again, this duration of employment must be on a full-time basis (not including any periods of unpaid leave).

What is the new change?

The effect of the new legislative instrument is that a person has had one or more ‘coronavirus reduced work periods’ or ‘coronavirus unpaid leave periods’ during the ‘concession period’ can deduct these periods from the total work duration requirements listed above. For example, if an applicant can demonstrate 3 months of either a ‘coronavirus reduced work period’ or a ‘coronavirus unpaid leave period’ during the ‘concession period’ then they would only need to demonstrate 33 months of work instead of 3 years (or 21 months of work instead of 2 years for ‘transitionary’ applicants).

What is ‘coronavirus reduced work period’ and ‘coronavirus unpaid leave period’?

A ‘coronavirus reduced work period’ is a period where a person has been on unpaid leave or has had their hours reduced due to the COVID-19 pandemic, during the period of 4 years (or, if the person is subject to transitionary provisions, of 3 years) immediately before their application for a nomination application was made.

Similarly, a ‘coronavirus unpaid leave period’ is a period where a person has been placed on unpaid leave due to the COVID-19 pandemic, during the period of 4 years (or, if the person is subject to a transitionary period, of 3 years) immediately before their application for a nomination application was made.

Evidence would need to be provided of the employment position – ideally written documentation from the employer setting out the amendment arrangements due to COVID-19.

What is the ‘concession period’?

The concession period commenced on 1 February 2020 and ends on a day specified by the Minister (yet to be determined).

Higher income threshold and age exemptions for 186 / 187 visa applicants (LIN 20/189)

Ordinarily, a 186 / 187 visa applicant must be under the age of 45 at the time of making their visa application. However, an exemption applies to the age restriction if a Subclass 457/482 worker has worked for the nominating employer for 3 years, and has had earnings equal to, or greater than, the high income threshold for each of the three years prior to making their application for the 186 / 187 visa in the TRT stream.

Note that exemption only applies to TRT stream (Direct Entry applicants do not have an age exemption).

What is the new change?

If a person is a ‘Subclass 457/482 coronavirus concession worker’ a person who would have been eligible for the age exemption due to the FWHIT provisions will continue to be eligible for the age exemption, if their earnings fell below the required level due to a ‘coronavirus employment change’.

Who is a ‘Subclass 457/482 coronavirus concession worker’?

A ‘Subclass 457/482 coronavirus concession worker’ is defined as someone who was, at all times during the 3 years immediately before the day the visa application was made:

1. employed by the employer who made the nomination to which the visa application relates in the nominated occupation to which the visa application relates;
2. had their employment affected by a ‘coronavirus employment change’;
3. had earnings that are equal to, or greater than, the high-income threshold for earnings of any of the 3 years that were not part of the concession period;
4. had earnings that are equal to, or greater than, a pro-rata threshold (instead of the high income threshold) during the concession period (excluding any earnings in a week when the person’s employment was affected by a coronavirus employment change); and
5. held a subclass 457 / 482 visa.

It is not yet clear how the Department will treat periods where an applicant was a Bridging Visa A (BVA) holder.

What is a ‘coronavirus employment change’?

A ‘corona virus employment change’ is a change that happens during the concession period, due to coronavirus, where the person is:

1. required to work at a reduced salary; or
2. required to work reduced hours; or
3. required to work part‑time; or
4. unable to work full‑time; or
5. stood down.

What is the ‘concession period’?

The concession period commenced on 1 February 2020 and ends on a day specified by the Minister (yet to be determined).

How can we help?

The concessions are great news for TSS or 457 visa holders who have been stood down or subject to reduced hours or salaries during the COVID-19 pandemic and assists in clarifying questions around permanent residence eligibility that would be otherwise impacted by unprecedented labour market conditions. Importantly, these concessions apply to ENS / RSMS applications lodged on or after 1 February 2020 which have yet not decided, as well as any ENS applications lodged on or after 24 November 2020.

Hannan Tew have been working actively with our corporate clients to ensure compliance with existing requirements, and fluid adaption to new concessions. If you require any advice or assistance, please contact us at [email protected] for further information.