Unsure if you are Protected or “Grandfathered”?

Here’s the million-dollar question you need to answer.

Pathways to permanent residence from subclass 457 or subsequent TSS visa

There is still a lot of confusion out there regarding whether subclass 457 visa holders have a pathway to permanent residence. This blog aims to explain whether or not you might be one of the lucky protected or “grandfathered” visa holders.

 

The good news is that if your employer has complied with its obligations as a subclass 457 sponsor, the Government was actually pretty generous when it introduced the TSS visa.

A lot of people who currently hold a subclass 457 visa or TSS visa will find that their pathway to the permanent residence has been protected or “grandfathered”.

To work out whether or not you are protected or “grandfathered”, there is one million dollar question:

Do either of these scenarios apply to you?

You held a 457 visa on 18 April 2017 AND you still hold that visa or a subsequent 457/TSS visa/bridging visa

You applied for a 457 visa on or before 18 April 2017 AND that visa was granted?

If the answer to that question is yes, then your pathway to permanent residence has been protected – you are “grandfathered”.

What does being “protected” or “grandfathered” mean?

If you are “protected” or “grandfathered”, then the following special rules apply to you:

Your occupation does not need to be on any particular occupations list (or any list); and

You must be under 50 years at time of PR application rather than 45 (unless an exemption is available); and

You must have held the 457/TSS visa for at least TWO years rather than three.

To take advantage of this protection, you must lodge your PR application by March 2022

In another bonus, if you can answer “yes” to the million dollar question above, then your ability to access this protection isn’t dependent on you:

Continuing to hold the same subclass 457 visa that allows you to access these rules. That means that if you need to apply for a new TSS visa to meet the two years working for the same employer permanent residence eligibility requirement, then that new visa will still allow you to access the special rules.

Continuing to work for the same employer. That means that if you change employer, that change doesn’t stop you accessing the special rules. It will still “re-set” the two years working for the same employer permanent residence eligibility requirement, so you will need to work for that new employer for two years before potentially being eligible to apply for permanent residence.

Having said that, if you are considering a change of employer or role, it is a good idea to get advice on how that will affect your permanent residence pathway BEFORE you change jobs.

Although the Australian Government was relatively generous, there are some things that can affect your protected or “grandfathered” status.

A relatively common example is if your new employer nominates you in a different occupation. For example, you are currently employed as a carpenter, but your new employer nominates you as a cabinet maker because you have the qualifications and/ or work experience for both roles. That new nomination as a cabinet maker will prevent you from accessing these special rules. If in doubt, get advice BEFORE changing jobs!

 

If you would like more information please contact us!