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491 Skilled Regional Visa Lawyers

Subclass 491 visa is a points-tested general skilled migration visa designed to remedy skill shortages in regional Australia. It is a temporary regional skilled visa permitting holders to enter and remain in Australia for up to 5 years from the date of visa grant. It is a provisional visa whereby holders may later apply for permanent residency via the Subclass 191 visa.

This subclass replaces the previous Subclass 489 Skilled Regional (Provisional) visa. 

 

491 Visa Streams

There are 2 streams available under this visa program. The applicants can be sponsored by either a State or Territory Government authority, or an eligible family member residing in a designated regional area.

  • State Sponsorship stream

The State Sponsored stream requires applicants to obtain a nomination from an Australian State or Territory. Each State and Territory imposes its own constantly evolving requirements, often offering nominations under various diverging “streams.” 

Once nominated, case officers are usually satisfied that nomination by a State or Territory Government authority continues to be valid unless the Department is notified, in writing, by the relevant authority that the nomination has been withdrawn. If it is withdrawn after the visa application but before a decision is made in relation to the application, the visa application must be refused, as the applicant cannot satisfy the key requirements.

  • Family Sponsorship stream

The family sponsor must sponsor the primary as well as all secondary applicants in the applications for subclass 491 visas, and satisfy the requisite criteria. A signed declaration is to be submitted to the Department by the family sponsor acknowledging his or her obligations. 

This stream has very limited availability, meaning 

 

Eligible Family Sponsor

Furthermore, eligible family sponsors must be:

  • At least 18 years old; and
  • An Australian citizen, Australian permanent resident or eligible New Zealand citizen; and
  • Usually resident in a designated regional area; and
  • Directly related to either the primary applicant or the primary applicant’s spouse or de facto partner, that is:
    • a parent; or
    • a child or step-child; or
    • a brother, sister, adoptive brother, adoptive sister, step-brother or step-sister; or
    • an aunt, uncle, adoptive aunt, adoptive uncle, step-aunt or step-uncle; or
    • a nephew, niece, adoptive nephew, adoptive niece, step-nephew or step-niece; or
    • a grandparent; or
    • a first cousin.

In determining whether the family sponsor is usually resident in a designated regional area, the Department is to consider the sponsor’s actual physical residence. That is, where they eat and sleep, and have their usual abode. Establishing a familial relationship is central to one’s application and must be substantiated to a significant degree.

 

Occupations

Refer to our blog – Subclass 491 occupations. 

 

Skills Assessment 

One of the first steps after identifying your eligible occupation is to undertake a skills assessment. At the time of invitation to apply for the 491 visa, the relevant assessing authority must have assessed the applicant’s skills as suitable for the applicant’s nominated occupation. The assessment must not have been made for the purposes of a Subclass 485 (Temporary Graduate) visa.

For each eligible occupation, an authority is tasked with assessment of the suitability of applicants for the corresponding occupation. This process of assessment is known as a Skills Assessment. Each assessor operates with its own procedures and prerequisites, information for which may be found on each assessor’s website. Whilst an occupation generally has one assessor, certain occupations may have multiple bodies which may conduct skills assessments for migration purposes. Applicants must meet the skills assessment requirement of their chosen occupation prior to commencing an application for their skilled nominated visa.

For any general skilled migration visa, the skills assessment is always the first step. If you are looking to commence your permanent residency journey, identifying an occupation and the skills assessment criteria applicable thereto is often a first step. Don’t commit to a course of study on the basis of rumor and hearsay, risking tens of thousands in school and visa fees. Book a consultation and obtain quality migration advice from our qualified migration solicitors. Our migration experts will look at your circumstances and your migration ambitions to plan out the best visa pathway for you and your family. 

 

Points Test

Subclass 461 is a points tested pathway, requiring applicants to achieve a minimum point score on the applicable points test. More information on this matter is available on our Skilled visa.

 

Small Business Owner Pathways

If you operate a small business or are looking to operate a small business in Queensland, Tasmania or South Australia, you may look to qualify for nomination under concessional criteria. Note that in all instances, you must establish a business first before seeking nomination. 

Please note that you must meet all other requirements of the Subclass 491 visa, including having an eligible occupation and appropriate skills assessment.  

 

Queensland – “I’m operating a small business in regional Queensland”

As the largest and longest operating scheme of its kind, the Queensland regional business owner nomination aims to attract migrants and capital to regional Queensland. The requirements under this stream are as follows:

  • Have an occupation on the Home Affairs LIN 19/051 occupation list
  • Not currently be studying
  • Hold a visa providing full-time work rights and allows running of a business
  • Have purchased a pre-existing business in regional Queensland
  • Have successfully operated your regional business for at least 6 months
  • Invest a minimum of $100,000 into your business prior to submitting your EoI
  • Have 100% ownership of the business
  • Employ 1 Australian resident employee for a minimum of 20 hours per week
  • Demonstrate sufficient settlement funds

Note that in relation to many of the above criteria, additional caveats exist. This is particularly true for franchisee applicants who are subject to additional requirements. Further, nomination is largely discretionary, meaning Business and Skilled Migration Queensland will priorities applicants with superior profiles.  

 

Tasmania – Category 5 Nomination – “Small Business Owner”

The Tasmanian Category 5 Nomination carries the following requirements:

  • Be living in Tasmania
  • Demonstrate establishment and operation of your Tasmanian business for at least 6 months
  • Demonstrate that your business will likely provide a personal income no less than the minimum taxable income set by the Subclass 191 visa requirements (currently $54,900) for at least 3 years in the next 5 years
  • Provide a comprehensive business plan
  • In addition to the above, note that your prior business ownership or management experience, as well as the nature and economic benefit of your Tasmanian business, will be considered in determining your eligibility for nomination. 

In addition to the above, note that your prior business ownership or management experience, as well as the nature and economic benefit of your Tasmanian business, will be considered in determining your eligibility for nomination. 

Further note that your business must not constitute any of the following:

  • Franchise businesses
  • Share-owned businesses
  • Service/Petrol stations
  • Massage clinics
  • Taxi and ridesharing (e.g., Uber) businesses

Finally, when considering your business plan, it is vital that it demonstrates your efforts to prepare and conduct research for your business, as well as to show the viability of your enterprise. Matters that must be addressed include:

  • Evidence of market research
  • Evidence of research into your chosen industry and any regulatory requirements to which your business is subject
  • Identifying realistic market opportunities, especially in sectors where competition exists in Tasmania

 

South Australia – Talent and Innovation Program

South Australia has announced its intention to introduce a nomination stream for skilled migrants operating a small business or startup. This scheme will fall under the greater South Australian Talent and Innovation Program.

As at the time of writing, further information on this stream has yet to be published. 

 

FAQ 

 

Can I apply from within Australia?

You can apply for Subclass 491 from within Australia, provided you hold a substantive visa or bridging visa A, B or C. If you have an accompanying partner or child who is also applying from within Australia, they do not need to hold the same type of visa you do, provided it is still a substantive visa or a bridging visa A, B or C. 

 

Do I need to be a certain age?

Primary applicants must be below the age of 45 at the time they are invited to apply for the subclass 491 visa. 

 

What if my family don’t meet the criteria?

Secondary applicants, such as partners and children, must meet certain criteria to be eligible for this visa. Some criteria apply to members of your family unit who are not included in your application. If any such person does not meet the criteria applicable to them, your application will also fail.  

 

What are the English Requirements?

Applicants are generally required to have competent English, which is equivalent to Band 6 in IELTS or 50 in PTE. In some instances, nominating states and territories or skills assessing bodies may require higher levels of English depending on your nominated occupation. 

 

Do I need a skills assessment?

At the time of invitation to apply for the Subclass 491 visa, the relevant assessing authority must have assessed your skills as suitable for your nominated skilled occupation. Skills assessments that are intended for the subclass 485 or 492 visas will not be accepted.

It is important that you understand which body is responsible for providing assessments in relation to your nominated occupation and that you are aware of the requirements set by the assessor. You should obtain a positive skills assessment before you submit your Expression of Interest. 

 

Can I add my partner after my visa is already granted?

Adding your partner to your Subclass 491 after it has been granted is possible under the law, but it will be heavily scrutinised. Because of the risk of abuse and visa fraud, case officers will examine your relationship closely to determine whether it is genuine. 

If you declared yourself as single when completing your finalised Subclass 491 application, the case officer will query why you did not disclose your relationship. If your relationship commenced shortly after being invited to apply for subclass 491, this too will be treated as a red flag when assessing your partner’s application. 

It is critical that you prove the genuineness of your relationship to the highest standards in order to prevent your partner from having his or her visa application refused. 

 

What are the Subclass 491 visa conditions?

The following conditions typically apply to the Subclass 491 visa: 

  • 8578: The holder must notify Immigration of a change to any of the following within 14 days after the change occurs:
  1. the holder’s residential address;
  2. an email address of the holder;
  3. a phone number of the holder;
  4. the holder’s passport details;
  5. the address of an employer of the holder;
  6. 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:
  1. the holder’s residential address;
  2. the address of each employer of the holder;
  3. the address of each location of each position in which the holder is employed;
  4. 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:
  1. at a place and time specified in the request; or
  2. in a manner, and at a time, specified in the request.

 

Can I apply if I have a “no further stay” condition on my current visa?

Some onshore applicants may be subject to Visa Conditions 8503 or 8534. These conditions usually prevent applicants from making a subsequent visa application from within Australia. Conditions 8503 and 8534 read as follows:

  • Visa Condition 8503: The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

*The Department’s system will automatically waive the condition to enable lodgement of the Subclass 491 application and grant an associated BVA.

  • Visa Condition 8534: The holder will not be entitled to be granted a substantive visa, other than:
  1. a protection visa; or
  2. a Subclass 485 (Temporary Graduate) visa; or
  3. a Subclass 590 (Student Guardian) visa;

while the holder remains in Australia.

*The Department’s system will waive the condition and allow lodgement of a Subclass 491 application, but the waiver is not automatically granted in every case.

Unique to the Subclass 491 visa, it is general policy to issue exemptions to applicants who are subject to 8502 or 8534 on their current visa. If you are on a student visa with condition 8534, it is expected that you finish your studies in order to be granted a waiver of your condition. The waiver provisions can be found in regulation 2.07AG, sub-regulation 2.05(4AA) and paragraph 2.05(5A)(b) of the Migration Regulations 1994.  

 

Can I get a bridging visa if I applied from outside Australia?

Unlike many other visa subclassess, it is sometimes possible to obtain a bridging visa even where you did not apply from within Australia. 

A person, who applied for a Subclass 491 visa whilst outside Australia is eligible to apply for a BVA if he or she held a substantive visa at the time the visa application was lodged. Note that a separate BVA application is required, and can only be made in Australia, meaning you will need to have some way to enter the country.

If the offshore applicant did not hold a substantive visa at the time of the visa application, a bridging visa cannot be issued in association with their pending Subclass 491 application. 

 

Can I apply for a different visa once my 491 has been granted?

The purpose of Subclass 491 is to try and direct immigrants towards regional Australia. As such, restrictions are in place to prevent Subclass 491 holders from transitioning to permanent visas that allow them to leave their regional area. Subclass 491 holders are unable to apply for the following visa subclasses for 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)

 

Qualifying Visas

Onshore applicants must hold either a substantive visa or a Bridging Visa A, B or C. Although secondary applicants do not necessarily have to hold the same visa, each of the secondary applicants must also hold the qualifying visas at the time of application if they are also in Australia.

 

Waiver of Visa Conditions

Some onshore applicants may be imposed with Visa Conditions 8503 or 8534. The conditions are stipulated below:

  • Visa Condition 8503: The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.

*The Department’s system will automatically waive the condition to enable lodgement of the Subclass 491 application and grant an associated BVA.

  • Visa Condition 8534: The holder will not be entitled to be granted a substantive visa, other than:
  1. a protection visa; or
  2. a Subclass 485 (Temporary Graduate) visa; or
  3. a Subclass 590 (Student Guardian) visa;

while the holder remains in Australia.

*The Department’s system will waive the condition and allow lodgement of a Subclass 491 application, but the waiver is not automatically granted in every case.

 

Age

The primary applicant must not have turned 45 years of age at the time (date) of the invitation.

 

491 Skills Assessment

At the time of invitation to apply for the Subclass 491 visa, the relevant assessing authority must have assessed the applicant’s skills as suitable for the applicant’s nominated skilled occupation. The assessment must not have been made for the purposes of a Subclass 485 (Temporary Graduate) visa.

 

English Proficiency

Applicants are required to demonstrate that, at the time of invitation to apply for a Subclass 491 visa, the applicant has competent English.

 

Criteria – One fails, all fail

The primary applicant cannot satisfy the primary criteria unless all members of the family unit who are Subclass 491 visa applicants (and in some cases, members of their family unit who are not visa applicants) satisfy the relevant criteria.

 

Subsequent Entrant Applications

In this context, subsequent entrants refer to secondary applicants applying for Subclass 491 visas when they have already been issued and granted. This practice is allowed, but they must be members of the family unit of the primary person who holds the Subclass 491 visa. The subsequent application may include more than one person.

Case officers will closely review the declared relationship history, in conjunction with the information provided in the associated primary visa holder’s previous application. This will be considered when determining whether the subsequent entrant applicant is a member of the family unit.

The Department will scrutinise any application where the Subclass 491 visa holders had previously declared themselves to be ‘single’ and were awarded the points and then declared their relationship in the subsequent application. Strict scrutiny also applies in cases when the declared relationship commenced shortly after the associated visa holder was issued the invitation to apply for or was granted the Subclass 491 visa. If the de facto or spouse relationship commenced after the invitation to apply but before a decision, the visa applicant is required to notify the Department of the change in circumstances.

 

Bridging Visa for Offshore Applicants

A person, who applied for a Subclass 491 visa whilst outside Australia, is eligible to apply for a BVA if he or she held a substantive visa at the time at which the visa application was lodged. A separate BVA application is required, and can only be made in Australia.

To the contrary, if the offshore applicant did not hold a substantive visa at the time of the visa application, a bridging visa cannot be issued in association.

 

Restrictions on applying for other permanent visas

Holders of Subclass 491 visas are restricted for 3 years of the visa grants from lodging valid applications for the following visas:

  • 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)

 

491 Visa Conditions

  • 8578: The holder must notify Immigration of a change to any of the following within 14 days after the change occurs:
  1. the holder’s residential address;
  2. an email address of the holder;
  3. a phone number of the holder;
  4. the holder’s passport details;
  5. the address of an employer of the holder;
  6. 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:
  1. the holder’s residential address;
  2. the address of each employer of the holder;
  3. the address of each location of each position in which the holder is employed;
  4. 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:
  1. at a place and time specified in the request; or
  2. in a manner, and at a time, specified in the request.

Application Charges

The costs of the Subclass 491 visa are as follows:

First instalment payable at the time of application;

  • Base application charge: $4,240
  • Additional applicant charge for an applicant who is at least 18: $2,120
  • Additional applicant charge for an applicant who is less than 18: $1,060

Second instalment payable prior to visa grant;

  • Applicants aged 18 and over who do not demonstrate functional English: $4,890
  • Any other applicant: Nil

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