491, 494, 191 – The New Australian Regional Visas

491, 494, 191 – The New Australian Regional Visas

There is a lot of talk about these new Regional Visas! A lot of it confusing and conflicting!  I think it is exciting and something to look forward to! These changes are going to benefit a lot of you!  So keep reading, it is going to get juicy…….

I am keeping on top of all the changes as they come about, so you have no need to go anywhere else, but just keep checking in with me, or better still, join the “Regional News Updates” member list and I will make sure that as soon as I know anything, you will too!  I will endeavour to explain the changes as clearly as possible so that everyone can understand them!

First things first, the changes will occur on the 16th of November 2019.

Here is a snapshot of the changes and the visas that are being taken over

The way the visas are transitioning

Introducing the New 491 Visa

Skilled Work Regional (Provisional) Visa

The 491 is the most exciting of the two visas to be introduced in 2019 with an enhanced points test which we think could offer substantial benefits to skilled migrants.

The 491 has some fantastic benefits over the 489. However it will depend on how the government handle the invitation model which we will discuss later. The 489 like the upcoming 494 has two streams, family sponsored and state sponsored. And while the state sponsored program is fantastic the family sponsored stream has been ignored and manipulated by the department, and we hope with the 491 we will see the end of that manipulation.

The points are the most exciting change of the 491 visa. So lets go. 

The 15 points will be a big boost for trades that struggle to get to 65 points which is the current pass mark. I think we will see more people opting for regional living with this as an incentive.

The increase to 10 points for Spouses over the current 5 points is also a massive boost and now makes the cost of completing a skills assessment seem worthwhile. It is also worth noting that the skills for the spouse points are contingent on having competent English but there also seems to be ANOTHER 5 points for partners having competent English – so are we double dipping?

The answer to that is no, you can only claim one set of points for your partner. 

The most interesting is the 10 points for single applicants. What does this really do to the points. More points attract more people and the 10 points for singles is welcome. If we compare this the the old system a skilled partner with competent English would get 5 points. This ensures singles are not penalised which we are going to see in the next slide.  

It is going to be an exciting time to see what STEM occupations will be eligible. While we doubt accounting based occupations will be included it is like lt that mathematical based occupations will be if we consider what some states such as South Australia have been seeking. Occupations such as mathematicians and Analysts. 

When we consider all of the points advantages this is great for the state sponsored stream. However the family sponsored stream relies on the highest points to get an invitation. And if everyone is getting an uplift then the advantage is lost. 

o   15 points for nomination by a State or Territory government agency or sponsorship by a family member residing in regional Australia, to live and work in regional Australia;
o   10 points for a skilled spouse or de facto partner
o   10 points for certain Science, Technology, Engineering and Mathematics (STEM) qualifications
o   5 points for a spouse or de facto partner with ‘competent English’
o   10 points for applicants without a spouse or de facto partner

Points Ranking

The points system will also introduce a new “invitation” system 

Invitations to skilled visas were previously based on highest scores first followed by the time spent on the skill select database. 

If all other points claims are equal, invitations for points tested visas will be ranked by the Migration Points Test as described below:

First – primary applicants with a skilled spouse or de facto partner

Equal First – primary applicants without a spouse or de facto partner
Second – Primary applicants with a spouse or de facto partner who can demonstrate competent English but does not have the skills for skilled
partner points (age and skills)

Third –  Primary applicants with a partner who is ineligible for either competent English or Skilled partner points. These applicants will be
ranked below all other cohorts, if all other points claims are equal.

We can now see the focus the government is putting on English as the invitation model is also benefiting partners with strong English. 

Skills Assessment Trap!

While we don’t know what occupations will be available one of the buried traps in legislation we have noticed is the if the assessment was made on the basis of an Australian qualification obtained while the applicant held a student visa, it must have been obtained as a result of studying a registered course. This means skills assessments based on Recognised Prior Learning or courses that are not part of the student visa program will not be permitted. While this will not affect many people it is a shortcut that has been blocked by the department via legislation.

A valid skills assessment is required at TIME OF INVITATION
and if the assessment was made on the basis of an Australian
qualification obtained while the applicant held a student visa, it must
have been obtained as a result of studying a registered course

491 Family Sponsorship

I want to head into a bit of technical talk for a minute. I think this segway is important for people that might use family sponsors for the 491 visa.

Firstly – The sponsor must reside in a regional area and be an Australian Citizen, Permanent Resident or Eligible New Zealand Citizen and be related to the applicant or the applicant’s spouse or de facto partner, as a parent, child or step-child, sibling, aunt or uncle, nephew or niece, grandparent or first cousin.  

The interesting thing here is the sponsor has obligations. 

These obligations are as follows:

The sponsor must reside in a regional area and be an Australian Citizen, Permanent Resident or Eligible New Zealand Citizen and be related to
the applicant or the applicant’s spouse or de facto partner, as a parent,
child or step-child, sibling, aunt or uncle, nephew or niece, grandparent
or first cousin.  

Introducing the New 494  Visa

Skilled Employer Sponsored Regional (Provisional) Visa

The 494 is similar to the 482 TTS visa which is the 457 replacement. It is similar in so much as it requires a sponsor, a nomination and an application. But also the sponsor and nomination legislation is primarily identical, with changes being made to the 482 legislation to accommodate the 494.  
That said, Let’s start with sponsorship. 

494 Sponsorship
The standard business sponsorship requirements for the 457 or 482 can be used for the 494 with two exceptions. 
Obviously the nomination must be in a designated regional area. 

The 494 visa are only open to Australian Businesses. 

The 494 excludes overseas companies from being sponsors which is something the 482 visa allows. 
So you can see the 482 and 494 sponsorship set up is pretty much the same. I kind of like this because the department has double dipped a lot in the past. I think this is a simpler solution overall. 

494 Nomination
 The 494 nomination is also almost identical to the 482 temporary visa with three exceptions. 

  1. Obviously the nomination must be in a designated regional area. 
  2. The 494 visa are only open to Australian Businesses. 
  3. There are rumoured to be over 450 additional occupations on the 494 occupation list

We covered this last slide but it is key to note the 494 excludes overseas companies from being sponsors which is something the 482 visa allows. 
There are two things we don’t know about the nomination yet. 

494 Applicants

Right now we don’t know what occupations will be on the list, but with 450 extra occupations I expect we will see some of those that are appearing on the DAMA’s that are being announced all over Australia such as hospitality, aged care worker and dental occupations, so fingers crossed we will see most of these, I would also be excited to see some accounting based occupations like book keeper, but we will just have to wait. 

I suspect the list will be know 1-2 weeks before the 16th of November, But we hope for earlier of course. 

The skills assessment requirements have not been set yet either, this will be interesting as it could follow the 187 guidelines of trades needing assessments, or the 482 of certain occupations from certain countries, it could include only some occupations or it could include all. If it is going to include all additional 450 advertised occupations this could be a massive learning curve for the skills assessing Authorities so it will be interesting to see if any leaks occur regarding this information. 

Be under 45
Must have 3 years full time experience
Competent English

There will be waivers however for ALL of these conditions – we don’t know yet what they will be but I suspect it will be a selection of occupations and salaries. 

The 494 visa will, and I stress this, it will have a health waiver available. His is something the 187 only has under the transitional stream. 

The visa holder can only work in the nominated occupation – this is basically the same as the current 482 visa. And only work for the sponsor.  There will be provisions – like with the 482 that certain occupations may work for other employers. These include at the present time Chief Executive or Managing Director, Corporate General Manager, General Medical Practitioner and all of the specialist medical occupations. 

Waivers

The effect of visa condition 8503 is that a person subject to the condition cannot apply for another visa, other than a protection visa, after entering Australia. The Minister can waive this condition in prescribed circumstances. One of the circumstances, is that the visa holder has a genuine intention to apply for a skilled visa as listed in that subregulation. 

The Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa is listed to provide flexibility to the Minister to allow applications for that visa to be made.

The same applies to students with an 8534 condition, that a person subject to the condition cannot apply for a visa other than a protection visa, a Subclass 485 (Temporary Graduate) visa or a Subclass 590 (Student Guardian) visa after entering Australia.

So not only are these nice waivers but interesting that regional skilled workers are given waivers that partners and parents, children etc have to fight for.

Cancellations

One of the risks I see with the 494 visa is how easily the department can cancel the visa. Not that they wouldn’t have better things to do but basically a Subclass 494 (Skilled Employer Sponsored Regional visa can be cancelled if the visa holder did not have a genuine intention at the time of grant to perform the nominated occupation, the holder has ceased to have a genuine intention to perform that occupation, or the position associated with that occupation is not genuine.

When ever I see legislation use the work genuine I shiver… 

The 494 can be cancelled if the applicant is deemed not to have a genuine intention to perform the work or if the position is not genuine. The visa
can also be cancelled if the sponsor has paid the travel costs… 

In addition a Subclass 494 visa to be cancelled if: the sponsor has given false or misleading information to the Department or the Administrative Appeals Tribunal; the sponsor has failed to satisfy a sponsorship obligation; or the sponsor has been cancelled or barred, or in cases where the sponsor is a party to a labour agreement, the labour agreement has been terminated, suspended, or has ceased.

I don’t necessarily disagree with this but the applicant is being penalised here for the sponsors failing, it will be interesting to see how this plays out over time. 

One that I do agree with though, allows a visa to be cancelled where the sponsor has paid the return travel costs of the holder in accordance with the sponsorship obligation. 

So basically the applicant asks for the return flights to there home country because they no longer want to work for the sponsor then the visa is cancelled – why is this ok, because applicants currently have been known to leave the sponsor, request the flight back in order to get a free holiday and then return with a new sponsor. So this kills the unethical applicants charging the sponsor for a free holiday program, and I don’t disagree with this. 

The New Conditions

The four new conditions are imposed on the Subclass 491 (Skilled Work Regional(Provisional)) visa (see this Schedule, above) and Subclass 494 (Skilled Employer Sponsored Regional (Provisional)) visa (see Schedule 2 to these Regulations), to require visa holders to live, work and study only in designated regional areas of Australia, and to assist with monitoring compliance with that requirement.

The new conditions are:

Condition 8578 requires the visa holder to notify Immigration of any change, within 14 days of the change occurring, to the holder’s residential address, an email address of the holder, a phone number of the holder, the holder’s passport details, the address of an employer of the holder, or the address of the location of a position in which the holder is employed. 

Condition 8579 requires that while the visa holder is in Australia, they must live, work and study only in a designated regional area.

Condition 8580 requires that, if requested in writing by the Minister to do so, the visa holder must within 28 days provide any or all of the following: the visa holder’s residential address, the address of their employer or employers; the address of the location of each position in which the holder is employed; the address of any educational institution attended by the visa holder.

Condition 8581 requires the visa holder, if requested in writing by the Minister, to attend an interview at a place and time or in the manner specified in the request. The interview may be face to face or undertaken using modern video conferencing applications such as Skype or Facetime.

There are 4 new conditions on that have been create for the new 491 and 494 visas

Condition 8578 – Must notify changes
Condition 8579 – Live in designated area
Condition 8580 – Provide employment details
Condition 8581 – Must attend interviews

Introducing the New 191  Visa

Permanent Resident Skilled Regional Visa

Of course there would be no point if we did not offer a permanent option right. This is it. The 191. 

Regional provisional visas, the 491 and 494 are valid for five years and the income requirement to be eligible for the 191 visas is that income level should be met for three out of those five years.  This means that people who may not be earning income the entire time due to illness, injury, or any other circumstances, will still have reasonable time to satisfy this criterion.

This is not quite as generous as the current 489 to 887 eligibility that does not measure income but only full time equivalent work for 12 months, and it is also 1 year longer the the 887 at 3 years and not 2. But it is perhaps more generous on the 494 employer sponsored side in that the employer does not need to nominate you again, which is the standard requirement on the 187 visa. 

For the most part Mr Migration does not see a major disadvantage with this visa unless you are desperate to move out of a regional area, in which case this is likely not the visa for you. 

Regional provisional visas are valid for five years and the income requirements should be met for three out of those five years.  This means that
people who may not be earning income the entire time due to illness,
injury, or any other circumstances, will still have reasonable time to
satisfy this criterion.

Limiting Your Options

This visa has limitations!


To ensure people abide by the regional conditions the department has inserted some failsafes into legislation, If you hold a Subclass 491 (Skilled Work Regional) visa or a Subclass 494 (Skilled Employer Sponsored Regional) visa, or the last substantive visa held by the applicant was a Subclass 491 or Subclass 494 visa, the applicant must have held that visa for at least three years at time of applying for  Subclasses 124 (Distinguished Talent), 132 (Business Talent), 186 (Employer Nomination Scheme), 188 (Business Innovation and Investment (Provisional)), 189 ((Skilled – Independent) and 190 (Skilled – Nominated) visa or Subclass 858 (Distinguished Talent). 

This prevents 491 and 494 holders from bypassing the obligation to stay in a designated area. 

If you are applying for a partner the requirements are a little more relaxed and the applicant must have substantially complied with the conditions of that visa.

To prevent 491 and 494 holders from bypassing the obligation to stay in a designated area. 
Certain visas are restricted by 491 and 494 holders until AFTER they have held the visa for 3 years. ORIf you are applying for a partner visa, you
must have substantially complied with the 494 or 491 conditions

Thank You!

 

Join the “Regional News Member Updates” here

Thank you for reading these updates today, If you have made it this far there is one more suggestion to make. July 1 sees the start of the immigration program year. I recommend that this is the ideal time to start planning your GSM visas. If this applies to you I will be taking appointments, so please be sure to contact me to speak one on one about your personal circumstances. 

hope this was helpful and I ask you to like and follow Active Migration Australia on Facebook.  I also highly recommend that you join the “Regional News Updates” member list so that I can send you updates as soon as I get them!

Have a great day. 

Kind regards, Scott Walker MARN 106794

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