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Skilled visa newsletters ​​​– March 2022

As millions of people have fled the conflict in Ukraine, countries around the world are responding.


Ukraine Visa Support: 

The Department of Home Affairs is supporting Australia’s response to the escalating crisis in Ukraine and is progressing outstanding visa applications from Ukrainian nationals as a priority, across all visa categories. 

The Prime Minister has also announced that automatic visa extensions for 6 months will be given to Ukrainian nationals in Australia who have a visa expiring before 30 June 2022. 

Reopening to international travel 

On 21 February 2022, Australia reopened its border to remaining, fully vaccinated, temporary visa holders, including Visitor and Bridging Visa B holders, as part of our step-by-step and safe reopening to the world. 

This graduated and safe reopening is a result of the success Australia, and Australians, have achieved through the vaccine rollout and in implementing the National Transition Plan. 

Having supported the reunion of families, and Australia’s economic recovery through the return to skilled and unskilled migration, and international students, it is now time to open Australia’s doors to all remaining fully vaccinated visa holders. 

All visa holders who are fully vaccinated in accordance with Australia’s international border entry requirements will be able to travel to Australia without needing a travel exemption. 

Unvaccinated passengers are still able to travel to Australia under agreed passenger caps established with the states and territories. Unvaccinated passengers will need to be either in an exempt category, hold an individual travel exemption to enter Australia, or will need to provide evidence that there is a medical reason that they cannot be vaccinated (medical contraindication). It is important to note that previous infection with COVID-19 is not considered to be a medical contraindication for a COVID-19 vaccine. 

Global Talent (subclass 858) visa program 

Streamlined processing 

Migrations Agents can help us streamline EOI assessments by: 

  • providing documents for submitted EOIs to the mailbox (not Global Talent Officers’ regional mailboxes), 
  • providing new evidence in response to requests for further information rather than resending previously provided evidence, 
  • clearly labelling documentation, 
  • listing the client’s passport number and BCC file number in the subject line of any emails, and 
  • minimising enquiries to the Global Talent mailbox. 

On 2 March 2022, Minister Hawke announced changes to the subclass 408 Australian Government Endorsed Event (AGEE) COVID-19 Pandemic event, which included expanding the visa beyond key sectors to allow work in all sectors. 

Temporary visa holders with work rights will be able to access the Pandemic event visa for nil Visa Application Charge (VAC) for a period of 6 or 12 months if they work in any sector of the Australian economy. 

The length of stay granted to applicants under the revised Pandemic event visa arrangements is based on meeting certain eligibility requirements. Applicants applying to work in: 

  • The Commonwealth Aged Care sector may be granted a visa of up to 12 months to remain and work in that sector. 
  • A key sector (aged care, agriculture, childcare, disability care, food processing, health care and tourism and hospitality) may be granted a visa of up to 12 months to remain and work in any of those key sectors. 
  • Any other sector may be granted a visa of up to 6 months to remain and work in those sectors. 

The new arrangements will only be available for Pandemic event visa applications made on or after 21 February 2022 by: 

  • Temporary visa holders who were in Australia prior to 21 February 2022; as well as 
  • Temporary visa holders who arrive in Australia after 21 February 2022 and have work rights or a job offer from a Commonwealth funded aged care service at time of application. 

Business Innovation and Investment Program (BIIP)

Reminder: Uploading Business Innovation and Investment Program visa documents 

For applications lodged on or after 13 November 2021, all documents for Business Innovation and Investment Program visas should now be submitted online through ImmiAccount across all streams and for all locations. Failure to upload documents via ImmiAccount may result in delays in processing. 

Requests for extension of time to provide documents

Within the Business Innovation and Investment Program, requests for an extension of time to provide documents may not be responded to immediately. These requests will be considered in line with local procedures and any extensions are made in accordance with legislation. When requesting extensions of time to provide documents, it is important to provide information and evidence of any attempts to obtain the requested information within the original timeframe. 

Business Innovation and Investment Program processing in Hong Kong 

The Business Innovation and Investment Program processing team in Hong Kong has been impacted by local COVID-19 measures. Applicants may experience some delays in processing their visa. Please see the local website for more information. 

Employer Sponsored Visa Program 

Labour Market Testing (LMT) – advertising vacant positions on JobActive 

Advertising on JobActive requires the use of an Australian Business Number (ABN) and/or a MyGov account. This is to ensure that genuine employers are advertising job vacancies. There are a number of solutions that can be used if the sponsor does not have either an ABN or a MyGov account: 

  • use of a free Government recruitment agent – a list is available on the JobActive website, 
  • use of a private recruitment agency, or 
  • contacting the JobActive helpline and requesting posting of an advertisement – contact details are available on the JobActive website at: 

Visa processing times – Priority Migration Skilled Occupation List (PMSOL)/critical sector 

The Department continues to receive a large number of enquiries seeking finalisation of applications with occupations on the PMSOL or in a critical sector. The Department endeavours to allocate high priority Temporary Skill Shortage (TSS) and Skilled Employer Sponsored Regional (SESR) applications for assessment within one month of lodgement, however due to a number of factors, this is not always possible. Applicants and authorised representatives are requested to wait five weeks from the date of lodgement for PMSOL and critical sector applications before following up with the Department. 

Labour Market Testing (LMT) 

Please refer to the Labour market testing for detailed information regarding this requirement, for both the TSS and SESR programs. 

Older applications 

Nominators for Employer Nomination Scheme (ENS), Regional Sponsored Migration Scheme (RSMS) or SESR visas are encouraged to provide the following in relation to applications lodged more than 12 months ago: 

  • A recent statement on business letterhead, signed by the authorised representative of the business, confirming that there is an ongoing genuine need for the nominee to fill the position, and that the position will be available for at least two years at the nominated salary. 
  • Documentation showing income from 1 July 2021 to date, such as company financial statements, lodged Business Activity Statements (BAS) and/or business tax returns. Where not available for most recent months, other independent evidence such as bank statements or bank transaction listings with income identified. 

TSS, ENS, RSMS and SESR visa applicants are also encouraged to check that all required police certificates and health examinations are valid and have not expired. Further information regarding police certificates is available at Character requirements for visas, and information regarding health examinations is available at Health. 

Temporary Skills Shortage (TSS) Visa 

On 18 March 2022, the Department implemented legislative changes to the Temporary Skills Shortage visa. From 1 July 2022, existing TSS visa holders in the short-term stream will be able to apply for permanent residence through the Temporary Residence Transition (TRT) stream of the Subclass 186 Employer Nomination Scheme (ENS) visa – in line with the Minister’s 25 November announcement. 

To be eligible to apply as a short-term stream TSS visa holder, applicants must have been in Australia between 1 February 2020 and 14 December 2021 for at least one year. Applicants must meet all other nomination and visa requirements for the TRT stream of the ENS visa. The pathway will be accessible for two years from its commencement on 1 July 2022. 

The above arrangements also apply to subclass 457 visa holders with an occupation on the Short-term Skilled Occupation List (STSOL). This complements the pathway to permanent residency for TSS visa holders in the short-term stream, by allowing eligible subclass 457 visa holders to apply for the TRT stream of the ENS, without first applying for a TSS visa. 

Transitional arrangements for subclass 457 visa holders, seeking to access permanent residency through the TRT stream of the ENS were introduced with the announcement of the TSS visa. The transitional arrangements were due to end on 18 March 2022 but have been preserved and will continue to be accessible past 18 March 2022. The relevant Procedural Instruction for Regulation 5.19, relating to employer nominations, is currently undergoing review, and will be updated with this information, for intended publication by 1 July 2022. 

General Skilled Migration program Updates 

Definition of De Facto Relationship and Implications for GSM Points 

The relevant legislation for assessing De Facto relationships in the context of a General Skilled Migration visa application, are: 

  • Section 5CB of the Act – defines a de facto partner/de facto relationship 
  • Regulation 1.09A of the Regulations – specifies four matters which may be considered in determining if an applicant meets the definition of de facto partner prescribed in s5CB 
  • Regulation 2.03A of the Regulations – specifies prescribed criteria applicable to de facto partners, including, where the visa application is for a GSM visa, the requirement that unless the de facto relationship has been registered, any de facto relationship claimed by a GSM applicant must have been in existence for the 12 months immediately prior to the GSM visa application 

Schedule 6D of the regulations sets out the General Points Test for GSM visas, including making provision for the allocation or denial of points based on the applicant’s marital status. 

For the purposes of calculating points under Schedule 6D, the definition of a de facto relationship is still as set out in 5CB of the Act and Reg 1.09A, however the difference is that reg 2.03A (the 12-month rule) is not applicable. 

The SkillSelect system will allocate points for partner relationship status as follows (item 6D112): 

  • Single – SkillSelect will award 10 points 
  • Engaged – SkillSelect will award 10 points 
  • Married – SkillSelect will award 0 points 
  • De Facto – SkillSelect will award 0 points 

GSM visa applicants’ marital status will sometimes change between lodging the EOI, lodging the visa application, and when a decision is made on points. This change of status may result in the loss or gain of points at visa assessment. For example, a person assigned 10 points (as single) at EOI, may lose these 10 points at the visa application stage if they have subsequently married or entered a de facto relationship. 

Where intending applicants are both in a de facto relationship and engaged simultaneously at time of EOI, they may consider selecting “De Facto” rather than “Engaged” when calculating their point score irrespective of the length of the de facto relationship. This will avoid being invited at a higher point score than what the visa applicant will be able to meet. 

It is also important to note the implications of the overlay of the 12-month rule at visa stage. For example, an intending applicant may declare a de facto relationship at EOI (where no 12-month rule is applicable) but if that de facto relationship is of less than 12 months standing at visa application then that de facto partner will not be eligible for consideration as the visa applicant’s partner for purposes of the visa. 

The specialists at Immigration Solutions Lawyers Sydney are all specialists in their specific areas of law and will put their many years of experience to work on your case. So if you want to get the best advice, from the most experienced Immigration legal counsels in Australia, then call us today.
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