Expanding Employer Sponsored Pathways to Permanent Residency on 23 November 2023

Written by: Roxy Topham Published: November 14, 2023

What is happening?

The Australian government is implementing another measure following the release of the Parkinson Review earlier this year, and in doing so, will once again create a clearer and more accessible pathway to Australian permanent residency (PR) for current and prospective Temporary Skill Shortage (TSS) visa holders in Australia.

The changes will come into effect on 25 November 2023, and while there is no legislation yet, it appears that visa candidates and employers will no longer need to navigate different skilled occupation lists, visa streams and conditional PR pathways moving forward.

Here is what we know – and the following information is subject to the specific provisions of the Migration Regulations 1994 and any legislative instruments adopted by the government in the lead up to 25 November 2023:

The limit imposed on onshore TSS visa applications in occupations listed on the Short-term Skilled Occupation List (Short-Term stream) will be removed
All TSS visa holders who have worked for their sponsor in their approved occupation for at least two (2) years will be eligible for Australian permanent residency
Eligibility for PR under the Employer Nomination Scheme (ENS) (subclass 186) visa – Temporary Residence Transition stream will no longer be dependent on a skilled occupation list and particular visa stream
The age exemption requirements for certain TSS visa holders will be reduced to two (2) years

RCR Lawyers, your trusted legal advisors in Australia, are committed to providing you with updates on the approaching changes as they become available.

Why the changes?

The main motivation behind these changes is to address the current restrictions and lack of clarity experienced by temporary skilled visa holders in planning their futures in Australia, particularly under the employer-sponsored permanent residency pathway. Additionally, the government aims to decrease the number of “permanently temporary” visa holders that reside in Australia, by reverting to the previous 2-year qualifying period and making permanent residency more easily accessible for skilled workers.

It is anticipated that these changes will:

result in a reduction of individuals holding temporary visas indefinitely
provide greater opportunity for current TSS visa holders to apply for permanent residency, in circumstances where they would not have been eligible for permanent residency prior to these changes
provide more clarity and certainty not only for TSS visa holders but also for current and prospective employers who will be subject to a more streamlined and straightforward nomination process
attract skilled workers to Australia, which it needs to support our economy and growth

Who is impacted by the changes?

The following people are impacted by the upcoming changes:

TSS visa applicants/holders in occupations listed under the Short-Term stream:

- no longer required to depart Australia to submit a third Short-Term stream TSS visa application provided that their current visa is not due to expire before 25 November 2023 – if your visa is expiring before the changes take effect, you must leave Australia to lodge the 3^rd Short-Term stream TSS visa application

Holders of TSS visas granted in the Short-Term stream and the Labour Agreement stream:

- eligible for Employer Sponsored PR under the subclass 186 (Temporary Residence Transition (TRT) stream) visa, after working for their sponsor in their approved occupation for at least two (2) years in the last 3-year period

Holders of TSS visas granted in occupations listed on the Medium and Long-term Strategic Skills List

- the wait-out period to become eligible for PR under the subclass 186 visa (TRT stream) will be reduced from three (3) years to two (2) years of working for their sponsor in their approved occupation

TSS visa holders aged 45 years and over who seek to rely on the age exemption provisions applicable to regional medical practitioners and high-income earners
- the 3-year wait-out period will be reduced to two (2) years to apply for PR under the subclass 186 visa (TRT stream)
- COVID-19-related age exemptions will be removed

Who are NOT impacted by the changes?

There are no changes to the Direct Entry stream of the Subclass 186 visa; or the Skilled Employer Sponsored Regional (Provisional) (subclass 494) visa.

The Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa will continue to be restricted to transitional subclass 457 and TSS visa holders.

Age concessions for legacy workers (as defined by legislative instrument) under the subclass 186 visa (TRT stream) remain unchanged.

Practice Tips

Be aware that ImmiAccount may experience system outages in the lead-up to 25 November 2023 due to an increase in users and the formal release of legislation. If your current visa is due to expire on or around 25 November 2023, we recommend you lodge early. The changes take effect on a Saturday and immigration support will be limited and difficult to access if you encounter any problems

If you hold a TSS visa under the Labour Agreement stream, you may be eligible to apply for PR after working for your sponsor in the same occupation for two (2) years instead of three (3) years, unless you seek to rely on specific concessions under the labour agreement (ie age, English language, evidence of skills) to qualify for PR under the standard subclass 186 visa (TRT stream)

If you are on your second Short-Term stream TSS visa, and it is due to expire before 25 November 2023, you must depart Australia to lodge a third TSS visa in the same stream

If you are on your second Short-Term stream TSS visa, and it is due to expire on or after 25 November 2023, you can remain in Australia to submit your application for a third TSS visa in the same stream

Any questions?

Australia’s immigration system is dynamic and everchanging, so continued awareness among visa holders and employers is essential to maintain legal compliance.

In navigating these changes, we encourage you to seek legal advice where needed. Leading the way in these changing advancements, the team at RCR Lawyers can provide knowledgeable support in guiding your steps in a shifting legal landscape.

Please contact Roxy Topham, Special Counsel and Head of Migration Services at RCR Lawyers who would be happy to assist you with any immigration-related enquiries. Contact her by email at [email protected] or call her on 07 3009 8444.