Crucial Elements of New Subclass 491 and 494 Visas

From November 16, 2019 we will see an introduction of two new regional provisional visas. Both are intended to lead to permanent residency.

1. Skilled Work Regional 491 Visa

To be rolled out on 16 November, the Subclass 491 Skilled Work Regional (Provisional) visa (Subclass 491), is a new and enhanced points-tested visa to assist regional Australia, for applicants nominated by a state or territory government agency or sponsored by an eligible family member residing in a designated regional area. This visa will be valid for five years.

Basic eligibility requirements include that an applicant may be in or outside Australia at the time of lodging their visa application. Similarly to the 489 Regional Visa (to be repealed in November 2016) A visa applicant must be invited to apply for this visa by the Minister visa Skill Select. At the time of invitation, an applicant must not have turned 45 at the time of the invitation to apply for the visa.

An applicant will be required to nominate a skilled occupation that is listed on the relevant Skilled Occupation List and have an appropriate skills assessment at the time of invitation.

Introduction of this visa will also see revised points system applicable to current skilled visas including Subclass 189 – Skilled Independent and Subclass 190 – State Nominated visas.

The changes to the points test are to introduce:

  • More points for having a skilled spouse or de facto partner (10 points);
  • More points for applicants nominated by a State or Territory government or sponsored by a family member residing in regional Australia (15 points);
  • More points for having certain STEM qualifications (10 points);
  • Points for applicants who do not have a spouse or de facto partner (10 points); and
  • Points for applicants with a spouse or de facto partner who has competent English (5 points).

Single applicants will no longer be disadvantaged as they will be ranked equally to those applicants with partner skills.  The ranking system will be as follows:

  • 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.

This new visa will carry two mandatory visa conditions

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.

Skilled Sponsored (Provisional) Regional 494 Visa

This visa will have two streams, Employer Sponsored and Labour Agreement.  In contrast to the 491 visa, this visa will require sponsorship by an employer and will carry a SAF Levy.  Applicant will need to be under 45 years of age at the time of application (unless exempt) and have a suitable skills assessment.

An applicant will not be required to undertake skills assessment where

  • The applicant’s skills must have been assessed as suitable for the applicant’s nominated occupation by the assessing authority for the nominated occupation (specified in a legislative instrument), the assessment must be made within the previous 3 years or must still be valid if the stated validity of the assessment is less than 3 years; or
  • (The applicant must hold a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa, and have previously been assessed by the assessing authority for the applicant’s nominated occupation (specified in a legislative instrument) as suitable for that occupation; and
  • The assessment must not have been made for a Subclass 485 (Temporary Graduate) visa; and
  • If the assessment was made on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification must have been obtained as a result of studying a registered course.

The visa may be cancelled under s116 of the Migration Act 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.

Designated Regional Area

As part of these reforms, new Regulation 1.15M will specify revised definition of Designated Regional Area. At the commencement of the new regional provisional visas it is intended that the designated regional areas will include all of Australia except for Sydney, Melbourne, Perth, Brisbane and the Gold Coast.

Skilled Occupations lists for these visas are due to be made available shortly.