Moving from a 457 Visa to Permanent Residency
From 1 July 2012 the employer-sponsored permanent residency visa programs – known as ENS and RSMS – have been significantly changed in response to the findings of a review of these programs by the Department of Immigration & Citizenship in 2011.
One of the aims of the amendments is to make it simpler for current holders of Subclass 457 visas (a temporary visa) to move to permanent residency.
Use the following checklist to assess your eligibility for an employer-sponsored permanent residency visa:
Have you held a Subclass 457 visa:
- With the same employer
- Who is a Standard Business Sponsor
- For the past two years; and
- Are under 50 years of age?
If yes, then you are likely to be eligible to apply for an employer-sponsored permanent residency visa. You should approach your employer and ask if your employer will sponsor you.
The sponsored position must be the same as the position for which you hold the Subclass 457 visa.
In general terms, if you work in Melbourne, Sydney, Brisbane or the Gold Coast, you would apply for a permanent residency visa under the Employer Nomination Scheme (ENS) for a Subclass 186 visa using the Temporary Residence Transition (“Transition”) stream.
If you work anywhere else in Australia, you would apply under the Regional Sponsored Migration Scheme for a Subclass 187 visa under the Transition stream.
There are other requirements for these visa and you should take specific advice about your circumstances.
But what if I meet the above requirements but am 50 years of age or older?
You will probably be ineligible for both the ENS and RSMS program. There are limited exemptions for those over 50 years in certain occupations or who are high-income earners. You should take specific advice about your position.
What if my employer is a party to a Labour Agreement, not a Standard Business Sponsor?
There is a specific stream in the new ENS and RSMS visas for Labour Agreement sponsored positions under which you would apply.
Have you held a Subclass 457 visa for fewer than two years?
You could apply for either the ENS or RSMS visa (depending on the location of your position) under the Direct Entry stream immediately.
Alternatively, you could wait until you have been in your position with the same employer for two years and apply under the Transition stream.
Why is the Transition Stream preferable?
There are several reasons why Transition stream may be preferable in your circumstances. It has:
- Lower requirements for English language (IELTS 5) for those who are not exempted from the English language requirement;
- No skills assessment requirement as skills are considered to be tested by two years’ working in the 457 position; and
- For RSMS Transition stream, no certification requirement by the Regional Certifying Body as the need for the position to be filled by an overseas worker has already been established.
These factors can make application preparation and processing faster and less expensive. It may also be of assistance to applicants with weaker English language skills.
What if you do not hold a Subclass 457 visa?
- If you have an offer of employment with an Australian company you can apply under the Direct Entry stream for either the ENS or RSMS visa – depending on the location of the employment position;
- If you do not have an offer of employment, you can enter your details in the SkillSelect database and elect to make your details available to Australian employers who can use SkillSelect as a recruitment tool; or
- You can apply for positions through employment websites offering sponsored positions like www.skilledmigrantjobs.com or www.austjobs.com.
There are different pathways to permanent residency. Under the new ENS and RSMS programs there is only one visa subclass for each program, which now has three different streams for Transition, Direct Entry and Labour Agreements. Each stream has specific requirements that must be met in the visa application. All visa applicants (including the dependents of the primary applicant) must also meet health and character requirements.
For further information on the new programs please contact Mackey Lawyers