Skills in Demand Visas and Employer Nominated Scheme – some unanswered questions

by Ming-Hao (Sandy) Chen

Since the introduction of the new Skills in Demand (Subclass 482) Visa on 7 December 2024, a number of questions have arisen as a result of the legislative changes, particularly regarding the impacts on Employer Nominated Scheme (Subclass 186) Temporary Residence Transition (TRT) stream requirements. For example, due to the rushed nature of the legislative changes and changes to the ANZSCO codes and occupation names, there have been discussions around what previous work experience on the 482 visa can be counted towards the 186 TRT’s employment requirements.?

The Department has yet to update their policies but have provided some guidance for some of the frequently asked questions.??

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Questions around eligibility for Subclass 186 TRT visa pathway?

Previously, to be eligible for the Subclass 186 TRT pathway, a 482 visa holder must have worked for at least 2 years in the last 3 years, in their nominated occupation with their sponsoring employer, while holding a 482 visa in Australia. The new legislative updates have removed the requirement to be with the same sponsoring employer for at least 2 years. Instead, the 482 visa holder would need to have worked at least 2 years in the last 3 years in the same nominated occupation while on the 482 visa.?

Understandably, there are a lot of questions around what work experience can be counted towards the Subclass 186 TRT requirement, especially when 482 visa holders now have a 6-month grace period to look for a new employer to take over their sponsorship. During this grace period, they are allowed to work for any employer, in any occupation, to allow them more flexibility and financial stability while changing jobs.?

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The Department has confirmed that:?

• All work must have been undertaken while sponsored on the Subclass 457 and/or TSS or SID Subclass 482 visas.??
• Where the occupation has changed, applicants will need to show that the work experience is “related”.??

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Closely related occupations for the Subclass 186 TRT applications?

Given the removal of the 4-digit ANZSCO unit code “closely related” policy, it is unclear how the Department will assess the “relatedness” of the work experience.??

Prior to the changes, if the occupations share the same 4-digit unit group code, they are considered as closely related occupations. For example, the Accountant occupations are under the 2211 Unit Group code, which includes the occupations of 221111 Accountant (General), 221112 Management Accountant and 221113 Taxation Accountant. These occupations are considered closely related and experience in one of these occupations are considered relevant experience for another occupation within the same unit group.?

The 4-digit unit code flexibility/concession has been removed from the new 186 TRT legislations so it is not clear if the Department will continue to apply the same approach to the closely related occupation interpretations.??

Furthermore, another concerning issue that has arisen is the removal and replacement of certain occupations from the Core Skills Occupation List (CSOL) as part of the update or refresh made to the ANZSCO 2022 list.?

For example, the occupation of 262112 ICT Security Specialist has been removed from the CSOL and updated with newer Cyber Security occupation codes, such as 262114 Cyber Governance Risk and Compliance Specialist, 262115 Cyber Security Advice and Assessment Specialist, 262116 Cyber Security Analyst, 262117 Cyber Security Architect, 262118 Cyber Security Operations Coordinator. These are all ICT Security Specialist occupations, however, they are no longer under one occupation code.?

The issue is that since the previous 262112 ICT Security Specialist occupation is no longer available, would the Department consider the new Cyber Security occupations as closely related and allow 482 visa holders to count the time under both 262112 ICT Security Specialist and the new Cyber Security occupations? Or will they consider the new Cyber Security occupations as different occupations and require the 482 visa holders to restart their time on the 482 visa???

It would not seem fair to require 482 visa holders to restart their 2 years employment where the occupation codes are changed due to a refresh of the ANZSCO codes, where the occupations are clearly still related or similar to the removed occupation codes, rather than a complete removal of the occupation from the relevant occupation list.??

While we await the Department’s further guidance on this, it is clear that the rushed nature of the updates has led to oversight of the potential impacts to the current 482 visa holders and the continuity of their 186 TRT eligibility. One of the intentions of the ANZSCO 2022 update was to update the occupation codes and definition to better reflect the ongoing changes to the Australian labour market and to include emerging occupations identified by the National Skills Commission in 2020. It does not appear that the Department has considered how these updates would have affected current 457/482 visa holders, whose ANZSCO occupation codes were still based on the older 2013 version.?

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Work Experience for the Subclass 186 TRT applications?

Another question that has arisen is what experience can be counted towards the 2 years requirement for Subclass 186 TRT, now that it is not restricted to experience with one sponsoring employer. The Department confirmed that all work must be undertaken while sponsored on the 457 and/or 482 visas. However, does this include experience undertaken during the 6-month grace period on the 482 visa prior to the nomination transfer is approved??

According to the Department (but not yet released in their policies), previous work experience on the 482 visa can be counted if the new nomination transfer is subsequently approved. Work experience cannot be counted where the applicant holds a 482 visa but has left the previous sponsor and has not yet had a new nomination lodged. Work experience cannot be counted where a subsequent nomination transfer was refused.?

This will become a bit of a logistical nightmare and will require 482 visa holders, as well as sponsored employers, to keep clear records of employment, as well as nomination approvals. For 482 visa holders, keeping a record of nomination transfer approvals may be difficult. Nomination approvals, being part of the employer’s application process, are generally, in practice, not shared with the 482 visa holder. While the employers can share it if requested, some employers may not do so, especially if the employee has ceased employment with them. This would make tracking relevant sponsored experience difficult for some visa holders.?

If employment prior to the 482 nomination transfer is approved could also be counted in the 2 years eligibility requirement, then employers and 482 visa holders would need to keep clear records of employment, leave, position details, etc, for that period as well. Given the grace period concession that allows 482 visa holders to work in any occupation during that time, they must also ensure that their role continues to allow with their nominated occupation to maintain continuity of their eligibility for the 186 TRT requirements.?

Calculation of these work experience and evidence to provide may become more complex and onerous, particularly as now that the 2 years employment requirement fall on the visa applicant, rather than the employers. Income Statement/PAYG statements alone may not be sufficient evidence of the employment period. Clear records of nomination transfer approvals, position descriptions, employment contracts, leave/pay records, etc, may need to be provided to support 186 TRT applications. We may see increased risks of miscalculation of eligible employment periods, unless the Department provides clear policy and guidance around this.?

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At this stage, we can only wait patiently for the Department to release their updated policies and guidance around these issues.??

If any of the above changes impact you, please feel free to reach out for a consult.?

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