Temporary skilled shortage visa to permanent residency

The subclass 482 Temporary Skill Shortage visa, or TSS visa, is a temporary employer sponsored visa that allows skilled overseas workers in occupations that are experiencing recognised shortages to live and work in Australia. Depending on the occupation, the TSS visa can be approved for either a maximum of two or four years.

In addition to providing an excellent way for Australian employers to address ongoing worker shortages, the TSS visa also allows visa holders to have a direct pathway to Australian permanent residency with the subclass 186 Employer Nomination Scheme visa, or ENS visa.

Becoming a permanent resident poses a number of benefits to visa holders and their eligible family members, as well as to their employer, who will have the opportunity to retain a skilled worker that they have invested time and money in through training and sponsoring. This article aims to explain the process for sponsoring primary TSS visa applicants for permanent residence through the subclass 186 visa program.

The road to a PR from a Temporary Skills Shortage visa

The subclass 482 Temporary Skill Shortage visa is divided into three streams. The short and medium term stream relate to occupations on the respective occupation lists, while the labour agreement stream is related to employers who hold a labour agreement with the Department of Home Affairs.

The TSS visa has relatively straightforward requirements. Visa applicants will need to have a minimum of two years relevant work experience, as well as meet all health, English language, and character requirements. Once approved, the primary applicant and any of their eligible relatives included in the application will be able to live and work in Australia for the duration of the visa, with the restriction that the primary applicant may only work for their nominating employer in the nominated occupation.

The subclass 482 visa is an excellent way for employers to utilise foreign skilled labour, with the key limitation of being a temporary visa, valid for a maximum period of four years. A solution to the temporary nature of the TSS, however, is the subclass 186 Employer Nomination Scheme visa, a permanent visa which allows a nominated employee and their eligible family members to live and work in Australia indefinitely.

The 186 Employer Nomination Scheme permanent visa is divided into three streams, being the Temporary Residence Transition stream, the Direct Entry stream, and the Labour Agreement stream. The focus of this article will be the TRT stream, as this is the stream most closely linked to TSS visa holders.

The Direct Entry stream can be applied for even when the applicant has never worked for the employer while holding a TSS visa. The visa applicant will need a minimum of three years relevant experience, as well as a positive skills assessment from the relevant assessing authority, and will need to provide evidence related to their skills and experience.

The Labour agreement and Temporary Residence Transition stream are directly related to the TSS visa. Both streams require the primary applicant to have worked for their nominating employer for a minimum of two of the previous three years while holding a TSS visa. For the labour agreement, the TSS visa must have been under the labour agreement stream. For the TRT stream, the TSS visa could have been in either the short or medium term streams.

Pathways to permanent residency

The main pathway to permanent residency for TSS visa holders, as outlined above, would be the subclass 186 ENS visa. After recent changes to the requirements, TSS visa holders in either the short or medium term stream may apply for the 186 visa after two years of full time work, as long as they are sponsored for the 186 by the same employer who sponsored the 482. This application is made through the Temporary Residence Transition stream of the 186.

TSS visa holders also have the option to apply for permanent residency through alternate visa subclasses, such as the subclass 189 or 190, which require the primary applicant to receive a positive skills assessment from the relevant authority, and submit an Expression of Interest for the visa through SkillSelect on the basis of a points score. Further information about these visa options can be found on our webpage.

Lastly, TSS visa holders may seek to become an Australian permanent resident with an onshore partner visa, if they are in a marital or de facto relationship with an Australian citizen or permanent resident.

The best permanent visa options for an applicant to apply for permanent residency will be determined based on the Applicant’s individual circumstances, and whether or not their sponsor is willing to sponsor them for PR with the 186. Ultimately, it’s best to receive professional migration advice when determining which pathway is best for you, as a qualified professional can give you a clear overview of all available options and the benefits or drawbacks of each. At Australian Migration Lawyers, we have worked with a number of TSS visa holders to help them understand their PR options and apply to become an Australian permanent resident successfully.

Requirements for transitioning to PR

The basic eligibility criteria and visa requirements for the subclass 186 visa when applying under the Temporary Residence Transition Scheme can be summarised as follows:

• You must have a valid passport
• Your employer must lodge a nomination for your position, which must be in the same nominated occupation as your previous 482 visa
• You must have worked with your employer on a full time basis for at least two of the previous three years while holding a 482 TSS visa
• You must have all necessary qualifications and/or registration required for the nominated occupation
• You must be under the age of 45, unless an exemption applies
• You must meet the relevant English language requirements, and applicants over the age of 18 will need to supply English results as well
• You must meet the health and character requirements

The application process

The process for transitioning from a TSS visa to permanent residency with the subclass 186 can be broken down into three two stages, the nomination and visa application.

The Nomination must be lodged first, and is generally completed by the sponsoring employer. The nomination must be accompanied by evidence relating to the position, such as a position description and organisation chart, as well as evidence relating to the method used to calculate the salary, which must be over the minimum threshold of $70,000 plus super. When lodging the nomination, employers should always make sure that the tasks associated with the position would align with the ANZSCO description for the nominated occupation, and that the occupation is the same as the one that was used for the applicant’s subclass 482 visa.

Some of the documents that will generally be supplied in a 186 nomination include:

• A signed employment contract
• A written reference letter (TRT stream)
• Position details
• Salary details
• Evidence of the genuine need for the employee (DE stream)
• Evidence that the business is actively and lawfully operating

Once the nomination has been lodged, the visa applicant, along with any eligible family members who are to be included, will need to apply for the visa. For the TRT stream, this will include evidence that the applicant has worked for two years on a full-time basis while holding a 482 visa with the same sponsoring employer.

Subclass 186 TRT visa applications will generally be accompanied by the following documents:

• Passport
• Marriage certificate (if applicable)
• Birth certificates
• Current CV or resume
• Evidence of relevant qualifications
• Evidence of registration or licencing (if applicable)
• Reference letters from former employers
• Evidence that you have worked for your current employer for at least two years on a TSS visa, eg payslips, tax assessments, employment contracts
• Medical checks 
• Police clearance certificates from former countries of residence 
• English test results

If you lodge the visa application while onshore, you will generally receive a bridging visa, which will allow you to remain in Australia until a decision is made. Current processing times for the 186 visa range from eight to eleven months, however this will depend on the quality of the application, the nominated occupation that they are being sponsored under, as well as a number of other factors.

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Once granted, the 186 visa will allow the visa holder and any secondary applicants to live and work in Australia indefinitely. As a permanent resident, the visa holder will enjoy a number of benefits, including unrestricted work and study rights, commonwealth supported study, access to medicare, and the ability to apply for Australian citizenship upon meeting the residence requirements. The benefits for the visa holder are self explanatory, however this visa also greatly benefits the sponsoring employer, as they can retain skilled workers on a long term basis without worrying about monitoring their visa status and renewing their visas throughout the employment duration.

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If you are interested in getting more information about a work or skilled visa, get in touch with Australian Migration Lawyers for a free consultation.

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Challenges and solutions

TSS visa holders may encounter some obstacles when applying for PR under the 186 TRT. For example, any periods of unpaid leave will not count towards the minimum requirement of two years full-time employment on the subclass 482 visa. Furthermore, if you have applied for a 482 visa in the short-term stream, it would have been granted for a maximum of two years, which will mean that you may fall a few days short of the requirement when lodging the ENS application.

The Department does have some leniency when it comes to the ENS application if applicants fall a few days short, which aims to prevent the necessity of applying for a further TSS visa to bridge a small gap of a few days. This leniency is applied on a case by case basis, so it is important to seek advice from a professional if you are likely to fall short of the requirement to ensure that you would still be considered eligible.

Furthermore, the immigration system is subject to frequent changes, often with little notice. Recent changes appear to be trending toward making PR easier for skilled workers, as even TSS visa holders in the short-term stream may be eligible for PR, and the work requirement has been decreased from three years to two years. While these trends are favorable, utlising the skills and expertise of a trained professional, such as a lawyer or Australian migration agents, will ensure that you are up to date with any potential changes that may affect your eligibility in the every changing field of Australian migration law. 

Guidance from Australian Migration Lawyers

At Australian Migration Lawyers, we work with sponsors and visa applicants to determine the most suitable and cost effective pathways to secure skilled workers. We have provided migration advice to a number of TSS visa holders to secure their pathway to residency, and we’re proud to say that we have helped many skilled foreign workers in their journey to gaining PR.

Using skilled and experienced lawyers or Australian migration agents can greatly assist you in navigating the complex and ever-changing landscape of Australian immigration law, ensuring that you have the best chance for success and minimising the headaches involved with meeting vague and complex legal requirements.

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