Migration update: changes affecting temporary visa-holders and migrant workers
By Rosemary Roach, Kristopher Kunasingam and Jordon Lee
Recent changes announced by the Federal Government will affect the employment of temporary visa-holders and migrant workers. This article discusses alterations to:
- the Working Holiday Maker (WHM) program;
- work restrictions for student visa holders; and
- the Temporary Graduate Visa – subclass 485 (TGV) and Temporary Activity Visa (COVID-19 Pandemic event) – subclass 408 (Pandemic Visa) programs.
The WHM program comprises two visa subclasses:
- Working Holiday (subclass 417); and
- Work and Holiday (subclass 462).
Although these visa subclasses have different eligibility requirements, their purpose is substantially similar. They allow people aged between 18 and 30 (or 35 in certain cases) stay in Australia for up to 12 months, and to work throughout their stay.
The WHM program is generally subject to a condition which prevents the visa holder from working for any one employer for longer than six months (subject to limited exceptions). In other words, WHMs can work for the entire 12 months of their stay, provided that they do not work for a specific employer at the same location for longer than six months.
This condition was relaxed in January 2022, allowing WHMs to work for one employer for the entirety of their stay. This relaxation was initially in place until 31 December 2022.
Earlier this year, the government extended the relaxation of the six-month work limitation until 30 June 2023. This means that any period of employment of WHMs prior to 1 July 2023 will not count towards the six-month limitation period when this condition resumes.
Although the extension is good news for employers and WHMs, they should be mindful that the six-month limitation will soon apply to new visa holders whose visas are granted on/after 1 July 2023.
Existing employees on WHM program are able to effectively work with the same employer at the same location until 31 December 2023.
Student visa holders
Depending on the length of their education courses, the student visa (subclass 500) allows the holder to stay in Australia for up to five years while they complete an eligible course of study.
Before the pandemic, student visa holders were generally subject to work restrictions which prohibited them from working more than 40 hours per fortnight while in Australia. This condition was removed for all student visa holders in January 2022, to alleviate shortages of workers caused by COVID-19.
In February 2023, the Federal Government announced that work restrictions for student visa holders will be re-introduced from 1 July 2023, at an increased cap of 48 hours per fortnight.
The purpose of this change is to ensure that international students can ‘focus on obtaining a quality Australian education and qualification, while remaining able to support themselves financially, gain valuable work experience, and contribute to Australia’s workforce needs.’
Employers and student visa holders should be mindful of the cap when it is re-introduced, given that:
- students may have their visas cancelled if they breach the condition; and
- employers may be subject to civil penalties if they allow an employee to work in breach of a visa condition.
TGV and Pandemic Visa programs
A Temporary Graduate Visa (TGV) allows a recent international student graduate to remain in Australia for between 18 months and five years, depending on the graduate’s qualifications and other eligibility requirements.
The Pandemic Visa was introduced in response to COVID-19, to allow individuals to remain in Australia for a further 12 months if their visa expired and they were working or intended to work in Australia. This visa was introduced in recognition of the fact that many temporary visa holders could not leave the country during the pandemic.
The government has announced the following changes, to take effect from 1 July 2023. Graduates with:
- any doctoral degree; or
- an eligible Bachelor, Honours or Masters qualification,
will be permitted to stay in Australia for a further two years beyond the current expiry date of their visa. At this stage, only an indicative list of eligible qualifications has been published by the government. This list is subject to change before 1 July 2023.
Relevantly, it has also been announced that certain TGV holders will be permitted to apply for a Pandemic Visa with a two-year period of stay. To be eligible for this visa, the graduates must be employed or offered an employment. The graduates also need to:
- hold/held a TGV which expires before 1 July 2023; and
- not be eligible to apply for a TGV under the Replacement stream but were in Australia during the pandemic period.
The effect of these changes is that a significant proportion of TGV holders will soon be eligible for a two-year extension in their visa terms. This will ideally help to increase the supply of skilled labour in Australia in the near future.
If you have any queries regarding these recent developments or any other migration matters, please contact us for assistance.
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