Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa

The position must be located in a part of Australia that was a designated regional area when the nomination was made. [reg 2.72C(6)] Designated regional areas are specified by legislative instrument by postcode. In practice the metropolitan postcodes of Sydney, Melbourne and Brisbane fall outside the designated regional areas and the rest of Australia is within them, but eligibility is decided by the postcode tables, so the actual work location's postcode must be checked against the current instrument rather than assumed from a city label. [reg 1.15M] [LIN 22/022]

The regional connection does not end at nomination: after grant, the holder must live, work and study only in a designated regional area under condition 8579, so a position that sits near a boundary should be checked for both the nomination-time and post-grant implications. [condition 8579]

The Employer Sponsored stream uses the same annual market salary rate method as the other employer-sponsored visas, but the income floor is tested against the temporary skilled migration income threshold (TSMIT). This differs from Subclass 482, which applies one of two thresholds by stream (the Core Skills Income Threshold or the Specialist Skills Income Threshold); Subclass 494 uses TSMIT instead. Unless the Minister is satisfied the nominee's annual earnings will be at least the high-income amount specified by instrument, all of the following must be satisfied: AMSR has been determined in accordance with the method instrument; AMSR excluding non-monetary benefits is not less than TSMIT; the nominee's annual earnings will not be less than AMSR; the nominee's earnings excluding non-monetary benefits are not less than TSMIT; and there is no information indicating the AMSR is inconsistent with Australian labour market conditions (or it is reasonable to disregard any such information). Limited powers to disregard particular limbs exist. [reg 2.72C(15)] [reg 2.72C(16)] [reg 2.72(17)] [IMMI 18/033]

TSMIT and its indexation are set by the current statutory scheme and instrument, so the applicable amount must be confirmed on the advice or lodgement date rather than quoted from memory. [reg 1.03] [reg 5.42A] The Minister must also be satisfied that the nominee's non-earnings employment conditions are no less favourable than those of an equivalent Australian worker (or that it is reasonable to disregard contrary information), and that the sponsor has not engaged in discriminatory recruitment practices. [reg 2.72C(17)] The AMSR determination method and earnings classification are the same as for the other employer-sponsored visas; what the 494 adds on top is TSMIT and the regional certifying body salary advice.

In the Employer Sponsored stream the applicant must have been under 45 at the time of application, unless a circumstance specified in the exemptions instrument existed at that time. The exemption categories are instrument-based and must be read from the current instrument rather than from a remembered list. [cl 494.223] [LIN 19/216]

In the Labour Agreement stream the same under-45 rule applies unless the work agreement itself specifies a different age ceiling for the occupation and the visa, so an agreement-based concession must be located in the agreement's own terms. [cl 494.233]

Because the age criterion is fixed at the time of application, lodgement timing matters for an applicant approaching 45; and because the 494-to-191 pathway assesses its own criteria later without a further age test, meeting the age rule at the 494 stage effectively settles age for the permanent stage. [cl 494.223] [Sch 1 item 1139]

A primary holder's visa must carry conditions 8578, 8579, 8580, 8581 and 8608; secondary holders receive the same conditions except 8608. [cl 494.612] [cl 494.613] Where the visa is granted offshore, first entry must also be made before a date specified by the Minister, and a secondary applicant may have condition 8515 imposed (no marriage or de facto relationship before entering Australia). [cl 494.611] [condition 8515]

Condition 8608 is the occupation-and-employer condition. Its key points are:

• The holder must work only in the occupation nominated for the most recent 494; in the Employer Sponsored stream only in a position in the sponsor's business or an associated entity's business, and in the Labour Agreement stream only for the nominator, unless the occupation is instrument-exempt or the work continues only to meet an industrial-relations notice requirement.
• The holder must commence work within 90 days: of grant (onshore grant) or of arrival (offshore grant).
• Cessation of compliant work is capped at 180 consecutive days per period and 365 days total across the visa period.
• Where a licence, registration or membership is mandatory for the occupation in the location, the holder must obtain it within the same 90-day window, keep holding it while performing the occupation, comply with its conditions, not work inconsistently with it, and notify Immigration in writing as soon as practicable if the application for it is refused or if it ceases to be in force, is revoked or is cancelled.

[condition 8608] [reg 2.72C(14)] There is no separate licensing grant criterion in the Subclass 494 visa criteria: the licensing obligation operates through condition 8608 after grant, although licensing evidence can still matter earlier as practical support for the genuineness of the intention to perform the occupation. [cl 494.213(2)] As a matter of evidence it can also corroborate that the applicant worked at the occupation's required skill level, which bears on the skills-assessment and experience criteria.

The regional conditions bind the whole family, and 8579 carries the most weight:

• It restricts more than the workplace: while in Australia the holder must live, work and study only in a designated regional area. [condition 8579]
• It binds both the primary 494 holder and their family unit members.
• The area is fixed by reference to what was a designated regional area at the time the relevant nomination was made (not at grant); where there are later nominations, 8579(3) resolves which nomination governs. This is the same "at the time the nomination was made" benchmark used for the nomination location gate in reg 2.72C(6).
• The restriction runs during the "regional residency period": from grant (onshore grant) or from first entry on the visa (offshore grant), with a separate rule keyed to the primary's start of work where a later nomination applies.
• It is the load-bearing one because the Subclass 191 permanent stage specifically checks compliance with 8579 (cl 191.221(2)); a breach can defeat the permanent-residence pathway. [cl 191.221]

The other three are shorter: 8578 requires notification, within 14 days, of a change to the holder's residential address, email, phone number, passport details, an employer's address, or the address of the position; 8580 and 8581 allow the Department to require evidence of address, employment or study within 28 days and attendance at an interview. [condition 8578] [condition 8580] [condition 8581]

The pathway is the Subclass 191 (Permanent Residence (Skilled Regional)) visa in the Regional Provisional Visas stream (that is the stream for 494/491 holders; the 191 also has a separate Hong Kong stream that does not apply to 494). At lodgement the applicant must hold a regional provisional visa and have held it for at least 3 years; that holding period is a Schedule 1 validity requirement. [Sch 1 item 1139(3)(c)]

The grant criteria are the applicant's own to satisfy, and the employer plays no nomination role at the 191 stage. There are three limbs:

• Condition compliance: the applicant must have complied substantially with the visa's other conditions, while the regional-residence condition 8579 is singled out and requires compliance (subject to an instrument-specified class); that is a sharper standard than the "substantial" test used for the rest. [cl 191.221]
• Income requirement: notices of assessment for 3 relevant income years. The clause also requires the taxable income for each year to be at least an instrument-specified amount, but no instrument specifying that amount is currently in force, so there is currently no operative minimum; if an instrument is later made, the amount must be checked. [cl 191.222]
• Public interest criteria: the common PICs, including PIC 4007 health, apply at the 191 stage. [cl 191.211]

Describing the 191 as automatic after three years understates it. The income evidence (tax assessments), the condition-compliance history, and the regional-residence record decide the outcome, so the 191 case is effectively built during the 494 years: the notices of assessment for the three relevant income years must be in order, the family must stay inside the designated regional areas, and records of both must be kept. [cl 191.222]