Can you claim skilled employment before the “deemed skilled date” on your skills assessment?
Disclaimer: The information in this free guide is applicable to Australia's 2024-25 Skilled Migration Program as of 23 October 2024, and is subject to change. Additionally, the information contained in this guide is provided solely for general information and should not be relied upon or construed as legal advice. The information provided on our website or on any of our social media platforms about the migration regulations, policies and legislation is current as of the time it is published, and may be subject to change. Your use of the general information published on our website or our social media posts does not create a solicitor-client relationship between you and Inclusive Migration, and you should seek legal advice about your options from a legal practitioner or migration advice from a migration agent registered with the Office of the Migration Agents Registration Authority before proceeding with any application.
A question that often arises with skills assessments issued by skills assessing authorities like VETASSESS, the Australian Computer Society (ACS) and the Australian Community Workers Association (ACWA) is whether you are able to rely on skilled employment gained before the “deemed skilled date” determined by the skills assessing authority.
Why is my deemed skilled date marked as being years after I obtained my relevant qualifications?
Skills assessing authorities such as VETASSESS, ACS and ACWA sometimes have skills assessment criteria which effectively require that a skilled worker work for a number of years post-qualification before they can be deemed to have the necessary skills to perform a nominated occupation. This often occurs in circumstances where an applicant studied a qualification which is not highly relevant to the occupation, but is nonetheless deemed skilled a number of years post-qualification by VETASSESS after having subsequently accrued highly relevant work experience, within a 10-year period.
Alternatively, it may also occur where an applicant’s qualifications post-date their skilled employment. For instance, the ACS assessment process will seek to find the earliest Skill Level Requirement Met Date possible for each assessment pathway, and the Skill Level Requirement Met Date is dependent on the completion of both the relevant qualification and relevant work experience. If an applicant’s work experience is completed before the completion date of their qualification, the Skill Level Requirement Met Date (i.e. the deemed skilled date) will be determined by the earliest date that both the relevant work experience and the qualification are completed.
Why have other people said that I can only claim work experience before the deemed skilled date?
Commenters in a lot of Australian visa forums and sub-reddits may tell you that you can only rely on skilled employment gained after the date you are deemed to be skilled by VETASSESS and ACWA, and some registered migration agents may even tell you that you should “play it safe” and only claim work experience that you have accrued after your deemed skilled date.
ACS’s website states that all successful assessment letters will include a Skill Level Requirement Met Date (i.e. deemed skilled date), which is determined by the outcome of the suitability criteria, and that all relevant work experience completed after the Skill Level Requirement Met Date will be considered Skilled Employment, whereas:
PLEASE NOTE:
The work experience required to meet the suitability criteria is NOT included as Skilled Employment.
VETASSESS’s website likewise warns applicants against claiming years of work experience required to meet their skills assessment criteria for points test purposes relating to general skilled migration, despite skills assessing authorities not generally being able to provide migration or legal advice to prospective visa applicants:
The Date Deemed Skilled is the date you have met the VETASSESS skills assessment criteria. Only employment undertaken after the Date Deemed Skilled will be counted as skilled employment that is eligible for points test purposes. Years of work experience required to meet the skills assessment criteria is not counted as skilled employment eligible for points test purposes.
- Excerpt from VETASSESS’s website: https://www.vetassess.com.au/nominate-an-occupation
So is this true? In our opinion, this advice is not only potentially incorrect and misleading, but also unhelpful to persons who are exploring their eligibility for an employer-sponsored visa such as the Temporary Skill Shortage (Subclass 482) Visa, the Skilled Employer Regional (Provisional) (Subclass 494) Visa and the Employer Nomination Scheme (Subclass 186) Visa, but also General Skilled Migration candidates who are hoping to be invited to apply for the Skilled Independent (Subclass 189) Visa, the Skilled Nominated (Subclass 190) Visa and the Skilled Work Regional (Provisional) (Subclass 491) Visa.
In particular, limiting the amount of skilled employment may not only affect a Visa Applicant’s satisfaction of the work experience requirement for employer-sponsored visas, but also result in them being less competitive and attractive to the Department of Home Affairs as well as other State and Territory Governments for the purposes of general skilled migration.
Does this mean I claim work experience before the deemed skilled date?
The answer to this question depends on the qualifications you have, the type of visa you are applying for (i.e. is it an employer-sponsored visa or a general skilled migration visa), as well as which state or territory you are submitting an Expression of Interest or Registration of Interest for general skilled migration.
Employer-sponsored Visas
When it comes to employer-sponsored visas such as the Subclass 482, Subclass 186 or Subclass 494 Visa, the Department is unlikely to be solely influenced by the “deemed skilled date” on a person’s skills assessment application. Instead, the Department will generally apply its own Departmental policy when assessing whether someone has the necessary qualifications and/or work experience for the grant of that visa, with reference to the ANZSCO description of the qualifications and work experience which is generally required for the nominated occupation.
On the other hand, for the purposes of the Subclass 482, Subclass 186 and Subclass 494 Visas, Visa Applicants can only rely on skilled employment which was performed at the requisite skill level, which means that previous skilled employment which was performed at a lower skill level cannot be counted for employer-sponsored visas. For instance, work experience as a Kitchen Hand or Cook cannot be counted towards the work experience requirement for a Chef position, since the occupations of Kitchen Hands and Cooks are at lower ANZSCO skill levels than that of Chef.
General Skilled Migration
When it comes to general skilled migration visas such as the Subclass 189 Visa, Subclass 190 Visa or Subclass 491 Visa, the amount of skilled employment which can be claimed may vary depending on the particular state or territory government to which you are expressing or registering your interest. This is because the Department of Home Affairs and each state or territory government may have its own requirements and unique eligibility criteria as to what they consider as “skilled employment”, which need to be carefully considered.
1) The Department’s assessment of skilled employment
For the purposes of this blog post, let us first look at the Department’s policy in relation to the interpretation of “skilled employment” for the purposes of the general skilled migration points test.
Preliminarily, Departmental policy in relation to the points test requirements for Subclass 189, Subclass 190 Visa and Subclass 491 Visa presently outlines the following factors which apply when the Department is assessing periods of skilled employment:
the opinion of the relevant skills assessing authority on the period of skilled employment including the date on which they deemed the applicant skilled; and
the Australian and New Zealand Standard Classification of Occupations (ANZSCO) including any pre-requisite qualifications/work experience relevant to the claimed skilled employment; and
any other relevant information (such as employment records and references).
Departmental policy otherwise confirms that the regulations in relation to the points test require only that an applicant is employed in a nominated skilled occupation for a particular period of time, and does not actually require the applicant to have skills of a particular standard during that period of employment.
Departmental policy further clarifies that if the skills assessing authority’s opinion would result in the applicant being awarded less points than the applicant claimed in their EOI, then decision makers should consider the information in ANZSCO and apply the more beneficial outcome in determining when the applicant was working at a skilled level. This means that decision makers are obliged to consider skilled employment not just after the date an applicant was deemed skilled by a skills assessing authority, but also skilled employment that was gained before the deemed skilled date, as long as it post-dates the ANZSCO description of the qualifications which may be required for the nominated occupation, and is consistent with ANZSCO description of the tasks of the nominated occupation.
On the above bases, in circumstances where you have highly relevant qualifications which align with the ANZSCO description of the qualifications and work experience generally required for your nominated occupation, you may be able to claim skilled employment which both pre-dates and post-dates the deemed skilled date on your skills assessment in your Expression of Interest for the Subclass 189 Visa. Candidates who do not have highly relevant qualifications aligning with the ANZSCO description of the qualifications and work experience for a nominated occupation are encouraged to seek professional advice about their general skilled migration prospects and options.
As for the Subclass 190 Visa and Subclass 491 Visa, it is necessary to review each state/ territory government’s requirements to determine what skilled employment you may be able to rely on in your Expression of Interest and/or Registration of Interest.
2) The State/ Territory Government’s assessment of skilled employment
Now that we have reviewed the Department’s policy about its interpretation of “skilled employment” for the purposes of the general skilled migration points test, it is necessary to review each state/territory government’s nomination requirements and eligibility criteria when determining how much skilled employment you may rely on in Victoria, New South Wales, Queensland, Western Australia, the Northern Territory, the Australian Capital Territory and Tasmania.
Preliminarily, it is important to note that the requirements may differ from case to case, and only skilled employment in a nominated occupation or closely related occupation can actually be counted for the purposes of general skilled migration. Additionally, certain state or territory governments have a comprehensive list of requirements for different types of skilled employment which they may be interested in, in addition to their requirements on how much skilled employment candidates can claim in their Expression of Interest (EOI). For instance, many states and territories such as Tasmania and the Northern Territory require that an applicant have been resident in that state/territory for a minimum period of time and be engaged in skilled employment with a minimum contract period and minimum number of hours, before they are eligible for state/ territory nomination for the Subclass 190 Visa and/or Subclass 491 Visa.
Notwithstanding any of these additional requirements, in relation to whether skilled employment gained prior to the “deemed skilled date” on a skills assessment can be recorded in an Expression of Interest (EOI) for the Subclass 190 Visa or Subclass 491 Visa, the New South Wales Government was previously the only state or territory government which absolutely does not consider skilled employment gained before the deemed skilled date. In this regard, the NSW Government’s website previously stated that for the purpose of NSW nomination, you may only claim skilled employment from:
Skills Assessor's Date: The date your skills assessor officially recognises you as skilled, provided this date is explicitly stated on your skills assessment.
Qualifying Study Completion Date: If your skills assessor does not specify this date, you may only claim skilled employment from the date you completed your qualifying study.
The NSW Government previously further warned that if you have claimed employment in your EOI prior to meeting the above criteria including the Skills Assessor’s Date (i.e. the deemed skilled date), you are not eligible to accept an invitation to apply for NSW nomination, and that no exceptions will be made to this unique NSW requirement.
Nonetheless, the NSW Government’s website currently states that they have simplified their approach to skilled employment for the 2024-25 Program, removing previous restrictions on what employment can be claimed in your EOI, and expressly confirms that the NSW Government now adopts the Home Affairs definition of skilled employment.
As for the other state or territory governments’ 2024-25 Skilled Migration Programs-
Victoria aligns its assessment with the points that are claimed by an applicant in his/her Expression of Interest (EOI), such that they only assess whether or not an applicant has the work experience claimed in an EOI, and leave the final determination of points at the Department’s discretion.
Western Australia does not limit its consideration of skilled employment to work experience that post-dates the deemed skilled date on a skills assessment and will base its assessment on the documentary evidence that substantiates an applicant’s claimed skilled employment.
Queensland looks at the years of work experience that can be claimed for points, however they may also consider the deemed skilled date in so far as it aligns with the Department’s policy about skilled employment, which as outlined above, presently directs decision makers to apply the more beneficial outcome in determining when the applicant was working at a skilled level.
The Australian Capital Territory includes any skilled employment that was used to calculate the qualifying period required to meet the skill level of a nominated occupation by VETASSESS.
Tasmania accepts employment that meets its program requirements and which can be substantiated, including skilled employment which is outside the dates listed on an applicant’s skills assessment.
South Australia invites applicants who meet the eligibility requirements on their website to submit an online Registration of Interest (ROI) (Note: An ROI is not required for offshore applicants for South Australia’s Skilled and Business Migration Program) for their assessment, and their skilled employment requirement is for skilled work experience to be undertaken post-course completion (c.f. post the deemed skilled date), amongst other requirements.
In summary, it appears that most applicants may be able to claim skilled employment before the “deemed skilled date” on their skills assessment, subject of course to their skilled work experience meeting each state or territory government’s unique nomination criteria as well as Departmental policy about the interpretation of “skilled employment” for the purposes of the general skilled migration points test. This may differ from case to case so we encourage all applicants to seek professional advice about their eligibility prior to submitting an EOI and/or ROI, especially since the refusal of an ROI and/or nomination application may result in an applicant not being eligible for visa nomination from the same state or territory government in the current program year.
Our immigration lawyers at Inclusive Migration have extensive experience in advising prospective migrants to Australia about their employer-sponsored and skilled migration options in Australia. Should you wish to discuss your eligibility for migration to Australia through employer-sponsored and/or general skilled migration pathways, please email info@inclusivemigration.com.au or submit an enquiry using the contact form on our website.
