In March 2018, at the time of the implementation of the Temporary Skill Shortage Subclass 482 visa, there were a number of concerns about how newly introduced criteria would be assessed. In particular, the additional requirement for 482 visa applicants to have 2 years full-time work experience in the nominated occupation, or a closely related occupation, posed a number of potential issues.
The 2-year work requirement is of greatest concern for businesses seeking to sponsor high-value onshore student visa holders on the 482 visa. This article seeks to address some of the underlying issues posed by the new work experience requirement.
What is the 2 year skills requirement?
The Temporary Skill Shortage 482 visa introduced a regulatory criterion that the holder must possess at least 2 years’ full-time work experience in their occupation, or a closely related occupation. However, this experience does not need to be post-qualification, meaning that a person does not need to hold any qualifications in the occupation or have past experience, at the time they complete the 2 years of work.
The Department’s policy rationale is that the additional work experience requirement prevents employees from securing highly skilled and sponsored jobs without proven experience.
It has been our experience to date that this requirement is being applied flexibly and with appropriate discretion. However, should a person not meet the 2-year requirement there is real risk the application may be refused.
What type of work is considered?
For work experience to qualify toward the requirement, it must be either in the same field as the nominated occupation or, in some instances, involve tasks requiring the same level of skill in a closely related field. Whether work is closely related is determined according to ANZSCO. The ANZSCO system assesses occupations in Unit Groups, Minor Groups, and Major Groups. Typically experience is considered closely related if it is undertaken in another occupation in the same Unit Group. Again, there is some discretion for the case officer to take a broader approach.
Work undertaken during studies such as research and formal placements or internships is accepted, provided it is a requirement of the course. Where work is through a voluntary placement the issue is more complicated and the outcome may vary.
The Department calculates a full-time position on the basis of 38 hours per week. Work can be calculated on a pro-rata basis (i.e. 1 week at 20 hours is calculated as 0.5 full-time weeks) and does not need to be continuous. Work experience should document the number of hours worked per week. The applicant is expected to provide evidence in the form of payslips, PAYG summaries, and employment references.
*Policy states, ‘it is expected that the work experience should have been undertaken in the last five years.’* While policy cannot be more restrictive than the regulations, the Department frequently applies policy and such applications may be refused by a Case Officer. In such cases, it may be open to the applicant to appeal, though this process can take 2-3 years and the circumstances should be considered closely.
How strict is the requirement?
In the limited history of the 482, our experience suggests the Department’s application of the 2-year requirement appears to be highly selective. In some cases, individuals with little or no experience (i.e., less than 6 months) have been approved in highly skilled occupations. In other occupations, approvals have consistently been seen for applications with 18 months or more experience.
Anecdotally, the Department appears to apply the rule more strictly to occupations perceived to be low skilled or low value while highly skilled and valued occupations (such as medical practitioners, nurses, engineers and IT occupations) seem to be approached more flexibly. These issues should factor into any consideration of how to deal with a visa applicant’s experience.
Assessing where the Department will apply the rule strictly is challenging and includes a degree of risk.
What if the employee does not have the requisite 2 years?
If it is clear that an employee does not possess the requisite work experience, it may be necessary to consider whether other visa options are available. Depending on specific circumstances this can include options such as the Working Holiday Visa; alternatively, where an employer is willing to accept less than full-time work, a 408 Trainee visa or Student visa may be appropriate. This would enable an individual to accrue additional experience to meet the requirement.
Other approaches include using more tactical techniques to potentially increase work experience, such as lodging the application as close to the expiry of any existing visa as possible or looking at the timing of when they apply for a 485 visa to maximise their possible work experience. If approached correctly, appropriate tactics can gain several months for the visa applicant.
How can issues with meeting the requirement be avoided?
There are a number of ways a business can maximise the likelihood they can sponsor current Student visa holders and support them to obtain 2 years’ experience prior to sponsorship.
Firstly, employers can seek to identify applicants who are completing post-graduate education and already have prior work experience in their occupation
Another is to focus on students who are currently working in the relevant field (i.e., working part-time in the relevant, or a closely related, occupation during their Bachelor degree studies).
Seeking to engage with prospective applicants early (i.e. during their studies) can provide an advantage by ensuring they manage the end of their Student visa period and any 485 application in the right time frames to maximise work experience prior to a 482 application.
The 2-year experience requirement has been applied with varying consistency over the relatively short time the 482 has been in operation. The perceived value of the occupation appears to be the primary driver of this flexibility. Employers seeking to sponsor employees should factor the occupation, salary level, required qualifications as well as the work experience of the individual into account. Caution should always be applied however given the potential to refuse any application that does not meet the 2-year work experience requirement.
*This article has been updated following feedback from Bronwyn Markey Professional Services Manager of the Migration Institute of Australia. We would like to thank Bronwyn for pointing out the error in the article.
By Francis Stevens Harrop with Jackson Taylor.
The above is a summary and should not be treated as a definitive
statement of the law. You should seek personalised immigration advice