COVID-19 changes to visa entitlements and working hours explained

Recent and consistent changes to working requirements and restrictions however have caused confusion and concern for employers and workers alike. The closing of public facing businesses has significantly impacted temporary visa holders who have often lost their jobs in heavily casualised industries.

With over 1 million temporary visa holders, most of whom have work rights, the widespread job loss in Australia has had a devastating financial impact on temporary migrants, including international students, backpackers, graduates, seasonal and sponsored workers and refugees. As well as not being able to meet their basic living needs, temporary migrants are challenged in meeting their Visa requirements, especially without eligibility to support through JobKeeper and JobSeeker support packages.

Read more: Supreme Court awards worker nearly $1M after employer found negligent

Legislative amendments to migration requirements in COVID

To try and mitigate the impact of working restrictions on temporary visa holders, the Australian Government has introduced amendments to regulation on visa and visa application requirements. 

The Migration Amendment (COVID-19 Concessions) Regulations 2020 (COVID-19 Concessions) has amended the Migration Regulations 1994 (the Migration Regulations) to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who have been disadvantaged by the consequences of the COVID-19 pandemic, such as border closures, restrictions imposed on businesses and the general economic downturn. 

Schedule 1 to the COVID-19 Concessions Regulations outlines the amendments to Migration Regulations in six ways:

• Part 1 – COVID-19 Concession period: inserts concession period as a defined term into Migration Regulations from 1 February 2020 and until a date determined by the Minister in a legislative instrument
• Part 2 – Subclass 887 (Skilled – Regional) visas: to provide concessions in relation to application requirements, and in relation to visa criteria requiring specified periods of residence and full-time work in regional Australia
• Part 3 – Subclass 888 (Business Innovation and Investment (Permanent)) visas amends visa criteria to provide concessions to visa applicants who are on a pathway from the Subclass 188 to permanent visa, in relation to application requirements, visa criteria and specified levels of business and investment activity
• Part 4 – Subclass 790 (Safe Haven Enterprise) visa (SHEV): provides concessions to holders and certain former holders of a Subclass 790 in relation to eligibility to apply for other visas
• Part 5 – Subclass 485 (Temporary Graduate) visas amends the application requirements and visa criteria for the Subclass 485 (Temporary Graduate) visa, to assist international students, by allowing applications for, and granting of this post-study visa to be made from outside Australia during a concession period
• Part 6 - Application and transitional provisions amends Schedule 13 to the Migration Regulations to provide for the application of the amendments and transitional arrangements.

Read more: Fair Work: How do maximum term contracts work?

The impact on the employers and workers

Skilled Regional Visa 887

The Subclass 887 visa is a permanent visa and the COVID-19 Concessions assist holders of qualifying provisional visas or related bridging visas, who are on a pathway to the permanent visa.

• A visa applicant will be taken to have lived in regional Australia for six months (or as otherwise advised by the Minister) if the applicant was outside Australia during a concession period and made the application during the said period.
• The requirement for full-time work in a specified regional area is reduced from one year to 9 months (or as otherwise specified by the Minister) if the applicant held a provisional visa during a concession period and the application is made no later than three months after the end of the concession period.

Skilled Graduate Visa 485

The 485 visa is a temporary visa for post study skilled work assisting graduates and their families who are on a pathway to the permanent visa. COVID-19 Concessions assist holders in the time of application requirements by:

• Allowing offshore applications during a concession period without the usual requirement to have held a student visa within the six months immediately prior to making the application.
• Extending the period of time to meet the Australian Study Requirement (ASR) from six months to 12 months for applicants prevented from returning to Australia due to COVID-19 travel restrictions.
• Allowing applicants that made an offshore Subclass 485 visa application during a concession period to be granted the visa in or outside of Australia and regardless of whether the concession period has ended.

This is particularly beneficial for international students employees who may be affected by ongoing or future travel restrictions.

Are these changes sufficient?

Whilst the COVID-19 Concessions demonstrate an unprecedented reconsideration of Visa and work requirements for temporary migrants, feedback and recommendations provided to the Australian Government suggests that these measures alone are insufficient. Along with the financial consequences of the pandemic, the government faces further long-term challenges to the reputational of Australia as appealing and supportive to temporary visa holders.