As a measure to help businesses based in regional Australia, and to promote growth in rural areas, two new provisional visas opened to applications in November 2019 – the subclass 491 and subclass 494. Both visas offer a pathway to a permanent visa after first spending sufficient time in regional Australia and meeting other eligibility criteria. A third new visa will become available in due course to holders of either of these two visas – the subclass 191. The first two visas are “provisional” and the third visa is permanent.
How these visas might impact upon you
If you are a skilled person in Australia now (or hope to live and work here in the future), one of these new provisional visas might be available to you. If you have an eligible Australian family member living in a regional area (and they are willing and able to assist you), then the points-tested skilled subclass 491 visa might be perfect for you. State and Territory governments are also able to nominate potential applicants for the subclass 491 visa, so those without an Australian relative might also be able to take advantage of this new migration pathway.
If you are a skilled person and have an employment offer from a business that operates in a designated ‘Regional Area’ (all of Australia except for Sydney, Melbourne, and Brisbane), the new subclass 494 visa system might assist you. Businesses can already nominate positions under the Temporary Skills Shortage (TSS) subclass 482 visa system, but many more occupations are available under the new subclass 494. Businesses that are unable to source a suitably skilled employee living locally to fill a key position would need to first become a Standard Business Sponsor. The business would then become able to nominate you to fill the role. When your subclass 494 visa application is approved, you would be able to start working with the business that has nominated you (unless you already hold a different visa that has appropriate work rights).
After a minimum of three years of holding either of these two new visas, you can become eligible for the new subclass 191 visa. The subclass 191 is a permanent visa. It will start in 2022 because only subclass 491 and subclass 494 visa holders that have held their visa for at least three years will be able to apply.
This article examines these three new visa subclasses and considers some controversial features about them. This information should be considered general in nature and not legal advice nor immigration assistance. For details about how these changes might advantage you personally, please contact our Immigration team.
Migration Amendment (New Skilled Regional Visas) Regulations 2019
The Migration Amendment (New Skilled Regional Visas) Regulations 2019 created these new visas. To make way for the new pathways, an existing visa subclass has been retired; and another visa subclass has had one of the streams close to new applications.
Final invitations for the previous subclass 489 (Skilled Work Regional (Provisional) visa were made in September 2019. No more applications for that visa can be lodged. The subclass 491 Skilled Work Regional (Provisional) visa replaces the 489.
The Direct Entry stream of the permanent subclass 187 Regional Sponsored Migration Scheme visa ceased in November 2019. Applicants under the Temporary Resident Transition stream of that visa will not be impacted by the change. Visa applicants that would have applied for a subclass 187 visa in the Direct Entry stream must now instead apply for the subclass 494 Skilled Employer Sponsored Regional (Provisional) visa.
Subclass 191 (Permanent Residence (Skilled Regional)) visas will only be available to those that have held a subclass 491 or subclass 494 visas for a minimum of three years. For this reason, subclass 191 will not become available until November 2022. Applicants for subclass 191 will need to hold either a subclass 491 or a subclass 494 visa when they apply; have met minimum income thresholds for at least three years while holding the visa; and have complied with their visa conditions. As the name suggests, the subclass 191 visa is a permanent visa.
Skilled Work Regional (Provisional) Subclass 491 visa
This five-year visa enables nominated skilled workers and their families to live, work, and study in the designated regional areas. Like applicants for the permanent subclass 189 and subclass 190 General Skilled Migration visas, potential applicants must first lodge an Expression of Interest. They are only able to apply if invited by the Department of Home Affairs. Before applying, candidates must first have their skills assessed by the relevant skills assessment authority. Applicants must be under 45.
The points test used for current General Skilled Migration visas applies. Amendments to the points test was introduced as part of the legislative changes. The updated system applies to both subclass 491 applicants, and to applicants for other permanent skilled migration visas that have not yet been assessed. All the changes are beneficial for applicants because additional points will become available and none removed.
Successful visa applicants will have a new requirement (Condition 8579) imposed on their visa. That will restrict them from moving to non-regional areas. They will be permitted to move to other designated regional areas.
The department is allocating 14000 places, with 504 eligible occupations, to the subclass 491. The occupation list will be periodically updated.
Holders of these visas will be prohibited from applying for other skilled permanent residency visas and for partner visas for 3 years. An unanticipated consequence of this restriction is the impact upon Australian citizens and Australian permanent residents that fall in love with a subclass 491 visa holder. The Australian would need to live in a regional area if they want to stay with their partner, as the visa holder would not be able to move with them to a metropolitan area. The practical implication is that an Australian might need to live in a regional area with few or limited suitable employment prospects. An Australian might need income and other support as they would be compelled to choose between a life with their partner in regional Australia or life with employment but without their partner in one of the non-regional cities.
Skilled Employer Sponsored Regional (Provisional) Subclass 494 visa
This visa too has five-year validity and is available to assist employers in the designated regional areas. Applicants must be under 45 and have at least competent English. Visa holders must be paid fairly. They must meet the Annual Market Salary Rate so that overseas workers will be paid no less than an Australian worker doing the same work in the same location. Like the former Direct Entry stream of the Regional Sponsored Migration Scheme visa, local Regional Certifying Bodies will have a roll in assessing the legitimacy of the need for the position.
Applicants will need to have at least three years of relevant skilled work experience. They will need to have a positive skills assessment.
Unlike almost any other temporary visa, successful applicants will be eligible for Medicare benefits.
The employer will need to establish that the position is likely to be available for at least five years. It is hard to imagine any employer being willing to make an employment commitment for such a long period of time.
Subclass 494 visa holders can be impacted by employers that are caught breaching sponsorship obligations. This parallels the circumstances of subclass 482 visa holders. Visa holders would need to find another business to nominate them (within 90 days) if their employment terminates.
Like the subclass 491 visa, subclass 494 visa holders too will be subject to the new visa condition that restricts their right to move to non-regional areas. They will be barred from applying for other permanent employer sponsored visas and for partner visas for three years.
9000 spaces are being made for this visa subclass and 673 occupations are listed. The occupation list will change from time-to-time.
The process for regional employers mimics the current Temporary Skills Shortage visa process. The business would need to establish that the position is genuine, and that they cannot readily find a suitably skilled employee living locally. The business will need to apply to become a Standard Business Sponsor. The process also involves a nomination application to be approved for the position, followed by a visa application for the nominee. Payment of the Skilling Australians Fund (the SAF Levy) will be also required by the business.
Like other current employer sponsored visas, provisions in the Migration Act 1958 will prohibit visa applicants from paying businesses to nominate them.
A so-called Labour Agreement stream is available.
The Visa Application Charges for both the subclass 491 and subclass 494 visa will be $4045 for the primary applicant. Secondary applicants such as de facto partners and spouses will need to pay $2025. Family member children fees will be $1010 each. Other disbursements including professional advisor fees and police clearances would be payable.
Permanent Residence (Skilled Regional) Subclass 191 visa
This visa will only be available to subclass 491 and subclass 494 visa holders. It will enable them to transition into permanent residency. The program will become available in November 2022.
Successful applicants will have held either of the temporary visas for at least three years and have substantially complied with the conditions that were imposed on that visa. Applicants will need to meet health and character requirements. The visa will allow the holder to work, live, and study in regional areas. If they are sponsored by an employer, they will need to work only in the nominated position.
Children that were dependants while holding the temporary visa but that are no longer dependent on their parents can be included in the subclass 191 visa application.
Applicants will need to have met minimum threshold taxable income levels, as evidenced by at least three Australian Tax Office Notice of Assessments. A consequence of this requirement potentially disadvantages applicants with salaries that are near the income threshold. For example, let’s say that a 491 visa holder has their visa approved in August and works the entire tax year ending the following June. Their annual salary could be above the threshold but if they only work 10 or 11 months, that year’s ATO Notice of Assessment will record their salary as too low. They would need to work at least an additional 3 full taxation years to become eligible. High income earners could potentially meet the first year’s threshold by working six months or less. High income earners would only need to complete an additional 2 years. Because of this unexpected consequence, some visa holders will become eligible far more quickly than others. This unfairness could be mitigated by allowing visa holders to provide evidence of their salary on a monthly basis instead of through Income Tax Assessment Notices, but it does not appear that this will happen.
We’ll know more about the permanent visa when details are released, which will be much closer to the inception date in 2022.
Conclusion
These visas open new opportunities to help promote growth and economic sustainability in Australia’s regional areas. We welcome enquiries from those that want to know more. Our Immigration Lawyers Craig DoRozario and Tom Foran will explain the provisions in more detail. We are able to consider your circumstances to assess your eligibility.
Next Steps
To obtain a free 20 minute consultation in relation to your immigration matter, please contact our office on (07) 5532 3133. Your immigration matter will be conducted by Craig DoRozario (MARN 1910298) and/or Tom Foran (MARN 1172414).