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Confused with the changes in legislation for the 186 visa in Australia?

If you are looking to move to Australia and have an employer that is willing to nominate you, you may be eligible for a Subclass 186 Employer Nomination Scheme Visa. This is a permanent visa that allows skilled workers to live and work in Australia on a permanent basis, with their employer sponsoring their application.

A lot of our clients and followers didn’t know about this visa until we told them about it, with the Subclass 482 TSS (Temporary Skills Shortage) Visa (also known as the Sponsorship Visa) being the most well-known and talked about employer visa.

The Australian Employer Migration Program has 2 temporary visas and one permanent visa:

1. Temporary Skills Shortage (TSS) Sponsorship Visa – Subclass 482

2. Employer Sponsored Regional (Provisional) Visa – Subclass 494

3. Permanent Employer Nomination Visa (ENS) – Subclass 186

Understand how the 186 visa works in Australia

The Subclass 186 Employer Nomination Scheme Visa allows for applications under 2 different Streams:

  • Temporary Residence Transition (TRT) Stream: where you apply after you have worked for the same employer in the same position while holding a TSS 482 visa for at least 3 years, or
  • Direct Entry Stream: where you apply anytime, even if you have never worked for the employer.

In both Streams, only applicants whose occupations are on the MLTSSL (Medium and Long Term Skills Shortage List) can initially apply, unless you fall under current Transitional Arrangements.

That is what we will be discussing in this blog post. But first, an overview of the

General criteria for the Australian 186 Visa:

  • You must be aged under 45 years (there are very few and specific exceptions);
  • You must have a job and nomination offer from an Australian employer;
  • You must have Competent English: this means you must either hold a passport from the US, the UK, Canada, Ireland or New Zealand, or if that is not your case, you must score at least 6 in each component of the IELTS Exam or the equivalent in one of the other accepted exams;
  • If your occupation requires mandatory licensing, you must be licensed in your occupation;
  • You must have the required skills and qualifications for the job you have been offered in Australia.
  • You must meet health and character requirements.

For the (TRT) Stream, as mentioned above, you must have worked for the same employer in the same position while holding a TSS 482 visa for at least 3 years. For the Direct Entry Stream, you must show evidence of having the equivalent of at least 3 years of full-time work experience in the same role being offered to you in Australia (or something relevant and related) and you must obtain a positive Skills Assessment, regardless of your occupation.

Your employer or future employer will have to meet some requirements as a business and the position being offered has to meet certain criteria as well, such as the salary package being offered among others.

Who can apply for the 186 Visa?

So initially, only applicants who can nominate an application in the MLTSSL would be eligible for this visa. However, since March 2018 there have been Transitional Arrangements, which allow certain applicants who were affected by legislation changes, to still apply for this visa, even if their occupations are on the Short Term List (STSOL) or the Regional Occupation List (ROL).

From March 2018 to March 2022, certain applicants who held or had applied for a Subclass 457 visa on or before 18 April 2017 had access to arrangements allowing them to apply for the 186 visa when the legislation per se would normally not allow that. Those arrangements were set out on a Legislative Instrument (18/052).

This instrument ceased on 18 March 2022 and it was replaced by another instrument which came into effect on 1 July 2022 (22/038).

Legislative Instrument (22/038) is a legal document issued by the Australian government that provides updates and changes to the requirements and criteria for certain visa applications.

In plain English, it means that the government has made some changes to the rules and regulations surrounding 186 visa applications, and these changes mean that some applicants may be exempt from certain criteria.

For example, the Instrument sets out that if you meet all of the below, you may be eligible for the 186 visa even if your occupation is on the STSOL or the ROL. * Remember: initially applicants for the 186 visa must nominate an occupation on the MLTSSL.

  • You were in Australia, for a minimum of 12 months, holding any visa;
  • within the specified period between 1 February 2020 and 14 December 2021 – which were the “pandemic years” in Australia when our borders were closed for the majority of temporary visa holders;
  • and you are sponsored by an Australian employer on a 482 TSS Visa at the time of lodging your 186 visa

This is for people applying under the Temporary Residence Transition Stream (TRT) only. The arrangements do not include applications under the Direct Entry Stream.

If you are also what is now known as a “legacy 457 visa holder”, the arrangements continue to include you and you could also meet the 186 visa criteria. See the legislation below:

Specified persons

(1) For subparagraph 5.19(5)(a)(iii) of the Regulations, a person (a specified person) mentioned in subsection (2) or (3) is specified.

(2) A person (a specified 457 visa holder) who, on 18 April 2017:

(a) held a subclass 457 visa; or

(b) was an applicant for a subclass 457 visa that was subsequently granted.

(3) Commencing on 1 July 2022—a person who:

(a) has been in Australia for at least 12 months between 1 February 2020 and

14 December 2021; and

(b) at the time of application, is employed by a person actively and lawfully operating a business in Australia.

*Important to remember: the arrangements address only nominated occupation, allowing people to nominate outside of the MLTSSL, but you will still have to meet all the other criteria for the visa to be granted, as per above and the part that requires you to have held a 482 for at least 3 years.

This is where problems may arise, at least one important problem as per below:

–  The instrument came into effect on 1 July 2022 and Immigration has “informally” announced that the Instrument will cease on 1 July 2024. What do we mean by saying this was “informally” announced? It means that no official date of end has been attached to the instrument and no changes in legislation have been announced to action this end date.

It’s important to remember that this decision to end the arrangements in July 2024 was made by the Liberal government, which lost the elections to the Labor Government in 2022, so the current government could extend the life of the Instrument (fingers crossed).

The problem with this is that people who were granted their first 482 TSS visa after 1 July 2021 or who changed employers around that time probably won’t have time to work the minimum 3 years required with the same employer before the arrangements end on July 2024. (Hence the crossed fingers!)

They concessions seem to be rather limited in scope than originally envisaged. For instance, based on the concessions as they currently stand, anyone granted a TSS visa on or after 1 July 2021 may not meet the requirements.

Other concessions for the 186 Visa

The instrument also sets out concessions for workers who were sponsored on a 482 TSS visa and were stood down, or had their hours reduced during the pandemic. Normally workers in these circumstances would not meet the criteria for the 186 visa under the TRT Stream, but under the transitional arrangements prescribed in the Instrument, they might.

Overall, if you meet the eligibility criteria and have an Australian employer willing to sponsor you, a Subclass 186 visa may be a good option for you to live and work in Australia on a permanent basis. Consider the Transitional Arrangements and don’t discard the possibility of applying even if you at first believe you don’t qualify.

While we acknowledge that the concessions may cease to be available in 2024, we still hold a hopeful perspective that these arrangements might be extended in the future, especially with a new government in power. This could result in more people benefiting from the opportunity, particularly if labor shortages persist in Australia. We will monitor the situation closely and report on any new developments as they arise.

We hope this helps you understand your chances in applying for a 186 visa in Australia, but nothing beats personalized consultation with a Registered Migration professional and, we obviously would love it if you chose Bravo Migration for yours.

And don’t forget: If have a Job Offer from an Australian employer, you qualify for a Free Assessment where we will identify if you are eligible for the 186 visa. No obligations!

Send us an email on visas@bravomigration.com.au

Thanks for reading!