494 Visa - Regional Employer Sponsored
Subclass 494 skilled employer sponsored regional (SESR) visa is a provisional visa that allows one to enter and stay in Australia for a period of 5 years from the date of visa grant. Much like the 491 regional visa, the 494 visa provides an avenue to permanent residency with the skilled employer via the Subclass 191 visa. Provisional visa holders are largely committed to remaining in regional areas for at least 3 years. It is generally not possible to transition to any other permanent visa prior to the expiry of the aforementioned 3 years residency in rural areas.
Much like the 491 visa, the Skilled Employer Sponsored Regional visa visa is designed to respond to labour shortages in regional areas. It provides concessions to regional employers to recruit skilled overseas workers who are willing to live and work in the region on an ongoing basis. The visa can only be used if the employer is genuinely unable to source appropriately skilled Australian workers. The specification of “regional area” for subclass 494 largely mirrors proscribed areas under the 491 visa requirements.
494 Visa Entitlements
- Must work for the approved sponsor in the approved occupation;
- Must live and work (and, if relevant, study) only in a designated regional area;
- Can bring eligible dependents with them to Australia. If those dependents satisfy the secondary criteria dependents can work and study (but must live, work and study only in a designated regional area);
- Can travel in and out of Australia while the visa is valid.
494 Visa Streams
- Employer Sponsored stream for employers in regional Australia to recruit skilled overseas workers to work in specified skilled occupations for 5 years. Visa holders become eligible to apply for permanent residence after 3 years;
- Labour Agreement stream for employers in regional Australia who have a labour agreement with the Commonwealth to source skilled overseas workers to work. Applicant’s occupation must be specified in the labour agreement and the visa lasts for 5 years. Visa holders become eligible to apply for permanent residence after 3 years.
494 Visa Stages
- 494 Sponsorship: The employer applies for approval as a standard business sponsor (SBS) or seeks to enter into a labour agreement with the Commonwealth. The SBS class is the same class of sponsor as used for the TSS visa program, and Australian businesses that are already approved as SBSs do not need to apply again.
- 494 Nomination: The employer, or sponsor, nominates an occupation for a prospective visa applicant or an existing visa holder. Decision makers are generally satisfied that the position is genuine if the related nomination is approved. However, further assessment may be warranted if adverse information about the sponsor or the visa applicant becomes available after the approval of the nomination. For example, information suggesting that the position has been created primarily to assist the visa applicant rather than to address a genuine business need.
- 494 Visa application: The person identified in the nomination applies for a visa, in the stream (either the Employer Sponsored stream or Labour Agreement stream) that was identified in the nomination.
- The three (3) stages identified above can be initiated at the same time. For example, an online application to be an SBS can be immediately followed by an online nomination. The online nomination can be immediately followed by an online visa application. The approval process then cascades in the same way. The nomination cannot be approved unless the sponsorship has been approved, and the visa cannot be granted unless the nomination has been approved.
- The visa holders who continue to work in their nominated occupation can change employer on the basis of a new nomination by the new employer (an SBS or an employer with a labour agreement). However, they cannot change their employer before a nomination by the new employer is approved, unless they are in a specified occupation.
- If an existing visa holder wishes to change their occupation, they must apply for and be granted a new Subclass 494 visa. It is not permitted to change occupations, even if remaining with the same employer, without first obtaining a new visa (which also requires a new nomination). This is to ensure that overseas workers are thoroughly assessed in relation to the new occupation before they work in this occupation in Australia – see: Visa Condition 8608 – Approved Work Only.
The applicant must have been under 45 years of age or be a person in any of the five categories of applicants specified in a legislative instrument, namely:
- Academic applicants
- Regional medical practitioner applicants
- Science applicants
- Subclass 444 / 461 workers
- Subclass 457 / 482 workers
If you are above 44 years of age and are looking for permanent residency under an exemption, it is important to obtain independent legal advice on your sponsored regional provisional visa subclass 494 matter. The provision relating to exemptions applicable to those over 44 years of age are complex, and inadequate addressable of exemption requirements will result in refusal of your 494 visa.
- Have had their skills assessed as suitable for the nominated occupation by the relevant assessing authority; or
- Have previously had their skills assessed as suitable for the nominated occupation by the relevant assessing authority in order to be granted a subclass 457 or TSS visa; or
- Be a person in either of the 2 categories of applicants specified in a legislative instrument, namely: academic applicants, or subclass 444/ 461 workers.
- The employment period does not need to be continuous and does not need to have been immediately before the application was made.
- Any period of employment during which an applicant changed careers (gained employment in another occupation), was unemployed, or took extended leave without pay should be excluded when calculating the period of employment.
- Unpaid and volunteer work cannot be counted as employment experience.
- Decision makers may consider work undertaken as a part-time employee that is equivalent to 3 years full-time, where they are confident that the applicant’s experience and skills are relevant and current.
- Casual employment, which is not undertaken on a full-time basis, should not be counted towards meeting the employment experience requirement.
- Consistent with the National Employment Standards (NES), employment will be considered ‘full-time’ where the visa applicant worked 38 hours per week. Employment experience will, however, also be considered ‘full-time’ where the visa applicant worked for a period between 32 and 45 hours per week under an industry award or an agreement that was consistent with the NES, where applicable.
The same definition applies as per the definition used in the assessment of the Annual Market Salary Rate requirements at nomination stage. Earnings include:
- Wages, including allowances such as a living away from home allowance and other allowances packaged under salary packaging arrangements;
- Any amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and
- The agreed money value of non-monetary benefits, for example, the value agreed between nominator and the employee of a motor vehicle provided for private use.
Amounts not included or permitted are:
- Payments the amount of which cannot be determined in advance
- Reimbursements of expenses incurred
- The nominator’s statutorily required contribution to superannuation, and
- Contingent payments such as overtime, commissions and bonuses.
Restrictions on other permanent visas
The visa holders are unable to make a valid application for the following visa subclasses for at least 3 years:
- Subclass 820 (Partner)
- Subclass 124 (Distinguished Talent)
- Subclass 132 (Business Talent) visa
- Subclass 186 (Employer Nomination Scheme)
- Subclass 188 (Business Innovation and Investment (Provisional)
- Subclass 189 (Skilled – Independent)
- Subclass 190 (Skilled – Nominated)
- Subclass 858 (Distinguished Talent)
494 Visa Conditions
8578: The holder must notify Immigration Australia of a change to any of the following within 14 days after the change occurs:
- (a) the holder’s residential address;
- (b) an email address of the holder;
- (c) a phone number of the holder;
- (d) the holder’s passport details;
- (e) the address of an employer of the holder;
- (f) the address of the location of a position in which the holder is employed.
8579: While in Australia during the regional residency period, the visa holder must live, work and study only in a part of Australia that was a designated regional area at the time the relevant nomination in relation to the primary person was made.
8580: If requested, in writing, by the Minister to do so, the holder must provide evidence of any or all of the following within 28 days after the date of the request:
- (a) the holder’s residential address;
- (b) the address of each employer of the holder;
- (c) the address of each location of each position in which the holder is employed;
- (d) the address of an educational institution attended by the holder.
8581: If requested, in writing, by the Minister to do so, the holder must attend an interview:
- (a) at a place and time specified in the request; or
- (b) in a manner, and at a time, specified in the request.
8608: The visa holder must work only in the nominated occupation identified in the application for the most recent Subclass 494 – Skilled Employer Sponsored Regional (Provisional) visa granted to the holder.