Permanent Visas: Skilled Migration

Based on the contribution of Michael Clothier, Accredited Immigration Law Specialist, as amended by Er-kai Wang, registered migration agent and Associate Lecturer at the ANU College of Law and current to 20 April 2018

NOTE: The Immigration and Refugees chapter is under substantial revision. The information in the following section may not be accurate. Readers should be aware that the Migration Regulations change rapidly. Before using the information listed here, we recommend that you check if the law still current by seeking advice from a migration agent or visiting the Department of Home Affairs' website.

Who are “skilled migrants” under the SkillSelect system?

Applicants for a skilled visa must complete an “expression of interest” indicating which stream they are interested in and whether they are seeking nomination by a state or territory. If the applicant gets a certain score and there is a need for their particular occupation, they will be invited to apply for the visa.

The expression of interest must be accompanied by a skills assessment by the appropriate skills assessing body for the applicant’s occupation (obtained at the applicant’s expense) and other personal information. Only those occupations on the relevant Skilled Occupation List will be considered (see www.homeaffairs.gov.au). The Department will then decide whether it will accept their offer by “selecting” them.

Whether a SkillSelect offer will be made will depend upon how many applicants for each skilled occupation have already been selected in the migrant program year. If the number in a particular occupation has been reached, no offer will be made. If the number has not been reached and the expression of interest indicates that the proposed applicant would score more than 60 points, an offer may be made. However, if the numbers in the particular occupation category are greater than needed, offers only go to the highest points scored in that round.

The government hopes, by this system, to avoid long standing problems it has had with its “pipeline” of skilled visa applicants in particular occupational groups “clogging up” the system, when there are already enough skilled migrants in that occupation. This increased efficiency is at the expense of the rights of visa applicants, because they will not know, at the time they lodge their expression of interest, whether they will be selected. If they are not selected, they cannot recover the money they have spent on getting a skills assessment, undergoing English testing, etc. This same SkillSelect selection system also applies to business owners who wish to apply for a visa to start a business in Australia.

List of Eligible Skilled Occupations

On 19 April 2017, the government abolished the Consolidated Sponsored Occupation List (CSOL). The CSOL had replaced the:

• State and Territory Nominated Skilled Occupation List (STATSOL);
• Employer Nomination Scheme Occupation List (ENSOL);
• subclass 442 Occupational Trainee List; and
• subclass 457 Skilled Occupation List.

Two new lists have been created:

1. Medium and Long-term Strategic Skills List (MLTSSL);
2. Short-term Skilled Occupation List (STSOL);
3. Regional Occupational List (ROL)

The government has stated that these lists will be adjusted every six months depending on the skill needs of the Australian economy. Applicants for skilled migrant visas should check the latest lists. These lists are used for both employer-sponsored migration and independent skilled migration.

Those who have an Australian or overseas business that is willing to sponsor them, and their occupation is on one of the lists, can access various periods of stay in Australia. If their occupation is on the STSOL, they can only receive a two-year work visa and cannot apply for permanent residence on the basis of their skills. Those whose occupations are on the MLTSSL can receive a four-year work visa and are eligible to apply for a permanent visa.

The following visas are available to individuals who are qualified to work or train in an eligible skilled occupation in Australia and can meet all other requirements:

• Employer Nomination Scheme (ENS) visa (subclass 186);
• Regional Sponsored Migration Scheme (RSMS) visa (subclass 187)*;
• Skilled Independent visa (subclass 189) – Points-tested stream;
• Skilled Nominated visa (subclass 190);
• Training visa (subclass 407);
• Temporary Skill Shortage (TSS) visa (subclass 482);
• Temporary Graduate visa (subclass 485) – Graduate Work;
• Skilled Regional (Provisional) visa (subclass 489).

The occupations available are reviewed regularly by the Department of Jobs and Small Business to ensure their responsiveness to changes in the Australian labour market and regional variations across Australia. For more information, including how to make a submission in relation to a particular occupation.

The most recent update to these lists occurred on 18 March 2018 - see Summary of 18 March 2018 changes to the lists of eligible skilled occupations. This update was, however, outside of the regular review schedule and was implemented to coincide with the introduction of the new Temporary Skill Shortage (TSS) visa (subclass 482) and related changes to the permanent employer sponsored skilled visas. For information on recent reforms to Australia's skilled visa programs - see Abolition and replacement of the 457 visa – Government reforms to employer sponsored skilled migration visas.

A current list of eligible skilled occupations can be found in a legislative instrument for the relevant visa program (see www.homeaffairs.gov.au). In order to determine which visa program may be available to you depending on your occupation, we recommend that you first check the Combined current list of eligible skilled occupations.

Skilled migration (189, 190, 489) common requirements

To lodge a valid application for this visa you need to first submit an expression of interest through SkillSelect. You can do this within or outside Australia. You must meet the following basic requirements:

• be invited to apply;
• be younger than 45 years of age when you are invited to apply;
• nominate an occupation that matches your skills and qualifications and is on the SOL;
• have your skills assessed by the relevant assess­ing authority as suitable for your nominated occupation;
• have at least competent English;
• score at least 60 on the points test (sometimes more than 60 points are required if the occupation is oversubscribed; see www.homeaffairs.gov.au/trav/work/skil;
• meet the health and character requirements.

Skilled independent (subclass 189) visa

This points-based visa is for skilled workers who are not sponsored by an employer, a state or territory, or a family member. A visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application.

The visa applicant must apply under an occupation on the MLTSSL for this visa. Prior to lodging an expression of interest, a visa applicant should undertake a skill assessment with the relevant regulatory body if an applicant does not hold the relevant Australian qualification.

Skilled – nominated (subclass 190) visa

This visa is for skilled workers who are nominated by a state or territory. A visa holder can live and work permanently anywhere in Australia. Certain family members can be included in the application.

The main advantage of state or territory nomination is that it provides the applicant with additional points in the “points test”. The relevant occupation list for the subclass 190 visa is the MLTSSL and ​ the STSOL for a smaller number of skilled occupations in order to support Australia's regional economy. 416 skilled occupations remain eligible for this visa program (as of 18 April 2018).

The ACT Skilled Migration Program is now closed for overseas applicants (effective 23 August 2017). However, if you are living overseas and you have close ties (either family or genuine job offer) in Canberra OR you have completed a PhD at an ACT university, you can still apply for ACT 190 nomination if you meet the criteria.

If you are living in Canberra, you can apply for ACT 190 nomination as soon as you meet the nomination criteria. See www.canberrayourfuture.com.au.

Skilled – nominated or sponsored (provisional) (subclass 489) visa

This visa is for skilled workers who are nominated by a state or territory or sponsored by an eligible relative living in a designated area in Australia. The visa is valid for four years, and a visa holder must live and work in a specified regional area. Certain family members can be included in the application.

The advantage of applying under for the subclass 489 visa is that it provides the applicant with additional points in the “points test”. Subclass 489 visas are also given processing priority by the Department. For this visa the relevant occupation list is the MLTSSL.

Employer Nomination Scheme (subclass 186)

This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in Australia. It has three streams:

• Temporary residence transition stream: for subclass 457 visa holders who have worked for two years and their employer wants to offer them a permanent position;
• Direct entry stream: for people who have never, or only briefly, worked in the Australian labour market;
• Labour Agreement stream: for people sponsored by an employer through a labour or regional migration agreement.

Regional Sponsored Migration Scheme (subclass 187)

This visa is for skilled workers from outside Australia or skilled temporary residents who live and work in regional Australia. It has two streams; these are identical to the first two streams listed above, Employer Nomination Scheme.

Business talent (permanent) (subclass 132) visa

This visa has two streams:

Significant business history stream

You, your partner, or you and your partner combined must have all of the following:

• total net assets of at least AUD$400 000 as the ownership interest in one or more qualifying businesses for least two of the four fiscal years immediately before you are invited to apply and if the qualifying business(es) was a publicly listed company, a shareholding of at least 10 per cent of the total issued capital;
• net business and personal assets of at least AUD$1.5 million that are legally acquired and can be transferred to Australia within two years after the visa is granted;
• a total annual turnover of at least AUD$3 million in one or more of your main businesses in at least two of the four fiscal years immediately before you are invited to apply;
• ownership of at least:
  • 51 per cent of a business with turnover of less than AUD$400 000 per year;
  • 30 per cent of a business with turnover of more than AUD$400 000 per year; or
  • 10 per cent of a publicly listed company.
• an overall successful business career;
• no involvement in unacceptable business activities; and
• a genuine desire to own and maintain a manage­ment role in a business in Australia.

You must also be younger than 55 years of age, although a state or territory can waive this requirement if your proposed business will be of exceptional economic benefit to the region where it will operate.

Venture capital entrepreneur stream

You must have received at least AUD$1 million in funding from an Australian venture capital firm.

The funding must be for the start-up, product commercialisation or business development of a promising high-value business idea.

The venture capital firm must be a member of the Australian Private Equity and Venture Capital Association Limited (AVCAL). AVCAL has information about the venture capital category of membership in its venture capital entrepreneur visa factsheet. You must have entered into a formal (contractual) agreement with the venture capital firm for the funding.

Business innovation and investment (provisional) (subclass 188) visa

The purpose of these visas is to boost Australia’s economy and to compete effectively for high net worth individuals seeking investment migration. Applicants must be invited to apply by the minister and, in some cases, must be sponsored by the relevant state or territory.

This visa includes five streams:

1. Business innovation stream : for people with business skills who want to establish, develop and manage a new or existing business in Australia.
2. Investor stream : for people who want to make a designated investment of at least AUD$1.5 million into an Australian state or territory and want to maintain business and investment activity in Australia after the original investment has matured.
3. Significant investor stream : for investors who are willing to invest at least AUD$5 million into complying investments in Australia and want to maintain business and investment activity in Australia.
4. Premium investor stream : for investors who make a complying and designated investment of AUD$15 million into an Australian state or territory.
5. Entrepreneur stream : for people who have a funding agreement from a third party for at least AUD200 000 to undertake a complying entrepreneur activity that is proposed to lead to either the commercialisation of a product or service in Australia or the development of a business in Australia. Applicants must be nominated by a state or territory government.

Holding this visa is the first stage before becoming eligible to qualify for a business innovation and investment (permanent) visa (subclass 888).

Business innovation and investment (permanent) (subclass 888) visa

The business innovation and investment (permanent) visa (subclass 888) is the second stage of the business innovation and investment (provisional) visa (subclass 188). Applicants can apply for this visa after satisfying the requirements of their provisional visa.

For holders of a subclass 188 visa, the subclass 888 visa is the expected pathway to Australian permanent residency.

The Points Test and Other Issues

What is the points test?

The points test is a mechanism used to help select skilled migrants who offer the best in terms of economic benefit to Australia. As part of the new SkillSelect process, potential visa applicants will be tested in evidence and given a nominal score as part of the selection process involved in “inviting” an applicant to apply. The points test as part of the selection process, awards points to the skills and attributes considered to be in need in Australia. The points test focuses on:

• English levels;
• extensive skilled employment;
• high level qualifications obtained in Australia and overseas; and
• targeted age ranges.

Points are not awarded for specific occupations. Although, all applicants must nominate an occupation on the occupation list corresponding to their chosen visa subclass (the Medium and Long-term Strategic Skills List (MLTSSL) and have their skills assessed by a regulatory authority corresponding to their nominated occupation.

Since 1 July 2012, the points test pass mark for points tested skilled migration visas invited through SkillSelect (subclasses 189, 190 and 489) has been 60 points. However, it constitutes a “minimum” score and the Department may only give invitations to those who score (for example) 70 points, if enough applicants in a particular occupational category can be sourced at that higher score. Older visa subclasses (e.g. 885, 886, 487) that remained open until 1 January 2013 used a points test minimum pass mark of 65 points. A table summarising the points awarded can be found on the previous page.

The points test applies to applicants for the following visas:

• subclass 489: provisional skilled visa;
• subclass 189: skilled independent visa;
• subclass 190: skilled nominated visa.

Threshold requirements

To apply for one of the above visas, applicants need to satisfy the following threshold requirements:

• lodge an expression of interest in the SkillSelect online portal and receive an invitation to apply;
• be under 45 years of age at the time of applying for a visa;
• meet the threshold English language requirement of competent English;
• nominate and hold a skilled assessment for an occupation on the MLTSSL at the time of lodging their expression of interest; and
• provide evidence of recent skilled employment in a skilled occupation or have recently completed the Australian study requirement. Your nominated occupation is any occupation in which you have been employed for remuneration for at least 20 hours per week.

For the purpose of awarding points, the Department considers skilled employment in the nominated occupation or a closely related occupation. In determining whether an applicant’s skilled employment is closely related to their nominated occupation, the Department takes into consideration the occupations within one unit group classified under Australian and New Zealand Standard Classification of Occupations (ANZSCO). Further information about ANZSCO can be found on the Department’s website.

Generally, applicants can request an opinion about their skilled employment claims from the relevant assessing authority when seeking their skills assessment. For further information about this process, applicants should contact the relevant assessing authority. See Department’s website.

If you have never worked or if you have been unemployed for longer than 12 months in the past 24 months, you will not get any points in the skill sub-factor.

International student graduates

International students who are unable to meet the requirements for a permanent skilled visa under SkillSelect or under sponsorship from an Australian business, have an opportunity to apply within six months of completing their studies, for a skilled – temporary graduate visa (subclass 485) to build on their skills and work experience. There are two streams:

1. Graduate work stream: for international students who graduate with skills and qualifications that relate to an occupation on the MLTSSL. A visa in this stream is granted for 18 months.
2. Post-study work stream: for international students who graduate with an eligible qualification (minimum: a Bachelor’s degree; maximum: a PhD). This stream is only available to students who were granted their first student visa to Australia on or after 5 November 2011. A visa in this stream can be for up to four years, depending on the qualification; the MLTSSL is irrelevant.

The skilled – temporary graduate visa (subclass 485) visa has unrestricted work rights. The visa aims to ensure that overseas students who decide to stay on in Australia after completing their studies have an opportunity to gain work experience and eventually qualify under the new SkillSelect system or find and Australian business to sponsor them.

The availability of these visas to international students who complete their studies (which are specifically designed to entice them to Australia with the promise of a work visa when they finish their studies) sits uneasily with the criteria that to be granted a student visa, students must prove they will leave Australia at the end of their studies. Ministerial direction No. 69 (1 July 2016) specifically states that intending students must show an intention to return to their own country after their studies.

Independent and sponsored skilled migrants

The migration law states that to enter, an independent migrant must be invited to apply for a subclass 189 visa and gain at least 65 points in the points test, set out above, as it applies to the Skilled - Independent category.

Designated areas of Australia

Applicants for a skilled – regional-sponsored (provisional) visa, who have a relative in that area gain extra points under the points test. The sponsor must usually be a resident in a designated area.

*State or territory*	*Designated areas*
Victoria	Anywhere
South Australia	Anywhere
Northern Territory	Anywhere
Tasmania	Anywhere
Australian Capital Territory	Anywhere
Queensland	Postcode areas 4019–4028, 4037–4050, 4079–4100, 4114, 4118, 4124–4150, 4158–4168, 4180–4899 (anywhere except Brisbane metropolitan area)
Western Australia	Anywhere
New South Wales	Postcode areas 2311–2312, 2328–2333, 2336–2490, 2535–2551, 2575–2739, 2787–2899 (anywhere except Sydney, Newcastle and Wollongong)

Other permanent skilled visas

Subclass 858: distinguished talent visa

This visa is available to an applicant who is in Australia and:

• has an internationally recognised record of exceptional and outstanding achievement in a profession, a sport, the arts, or academia and research; and
• is still prominent in the area; and
• would be an asset to the Australian community; and
• would have no difficulty in obtaining employment, or in becoming established independently in Australia in the area; and
• produces a nomination testifying to their achieve­ment and standing in the area from an Australian citizen, an Australian permanent resident, an eligible New Zealand citizen, or an Australian organisation;
• having a national reputation in relation to the area; and
• has not turned 18, or is at least 55 years old, at the time of application.

Skilled Regional visa (subclass 887)

This visa is available to an applicant who is in Australia and:

• holds a hold a subclass 489, 495, 496, 475 or 487, or a Bridging visa A or B after applying for a subclass 489, 495 or 487 visa; and
• has lived in a specified regional area of Australia for at least two years; and
• has worked full time in a specified regional area for at least one year.