Work restriction changes for student visa holders from July 2023

Earlier this year we discussed the re-introduction of student visa work restrictions and extended post-study work rights for graduate visa holders. This article builds upon the topic of work restrictions and explains the conditions that employers should be aware of to ensure they are compliant.

Do all student visa holders have work restrictions? 

All student visa holders, including dependant family visa holders, will have mandatory work restrictions imposed on their visas. These conditions are designed to ensure that international students come to Australia for the purpose for which their visa is granted. 

All student visas will be granted with mandatory condition 8105 applies for primary visa applicants and condition 8104 applies to for dependant visa applicants. Both conditions limit the amount number of hours a visa holder can engage in work when courses are in session. 

Condition 8105 restricts students to 40 hours of work per fortnight, while their course is in session. This will be increased to 48 hours per fortnight from 1 July 2023. Courses of study are considered to be ‘in session’:

• during the advertised semesters, which includes exam periods
• if a student is undertaking another course during a break from their main course and the points will be credited towards their main course.

Additionally, students are not permitted to work until their course has actually commenced. 

It is important for employers to note that: 

• the 40 hours per fortnight relates to each fortnight during which the course of study is in session
• the hours cannot be averaged out over the duration of the course. 

‘Fortnight’ is defined as the period of 14 days commencing on a Monday and ending on the second following Sunday. 

Careful consideration must be given when rostering student visa holders. Although the number of hours worked in a fortnight can be calculated from any given Monday, it is not generally consecutive and cannot be averaged. Given this, it is suggested that visa holders do not exceed 24 hours of work in any given week from Monday to Sunday from 1 July 2023 to ensure they do not exceed 48 hours of work per fortnight.

Can dependant family members work full-time?

Condition 8104 restricts dependant applicants from working more than 40 hours per fortnight, soon to be increased to 48 hours per fortnight from 1 July 2023. 

Dependant applicants are also restricted from commencing any employment until the primary applicant visa holder has commenced their course of study.

What about school holidays?

Student visa holders are able to work full time hours when their course of study is out of session. Courses are considered to be ‘out of session’:

• during scheduled course breaks (for example, holiday periods between semesters)
• if the course has been deferred or suspended in line with Standard 9 of the National Code of Practice for Providers of Education and Training to Overseas Students
• if a student has completed their scheduled course and still holds a valid student visa
• if a student’s enrolment has been cancelled due to the default of their education provider, until they secure alternative enrolment and commence the course.

Dependants of students visa holders are limited to 48 hours.

What about when a student completes their course?

Generally, students will be granted a visa for the duration of the course for which they are enrolled, or until 15 March of the following year. There are many options for recent graduates to transition to skilled visas once they have completed their course. 

If a student visa holder completes their course of study and applies for a permanent visa while still holding their student visa, they are likely to be granted a Bridging A visa (BVA) in association with the application. The BVA allows applicants to remain in Australia while their new application processes. The BVA would not come into effect until the student visa ceases. Therefore, the applicant would remain subject to student visa conditions until their student visa ceases or they are granted a permanent visa.

It is important to review the conditions attached to the BVA as the conditions from the previous student visa will, in some circumstances, be applied to the BVA.

Are there any exemptions to the work restrictions?

As noted above, there are some exemptions to work restrictions including:

• primary visa applicants who have commenced a masters by research or a doctorate may work unlimited hours after commencing their postgraduate course. This also applies to their dependant applicants
• students required to undertake a registered placement or work experience component as part of their course are permitted to work more than 40 hours per fortnight. Volunteer work may be carried out by a student or their dependants, if: 
  • their main purpose is to study in Australia and any voluntary work remains incidental to this
  • the work involved would not otherwise be undertaken by an Australian resident
  • the work is genuinely voluntary for a non-profit organisation and no remuneration, in cash or kind, is received in return for the activity.

If you have any questions or would like more information on any of these updates, please contact our Migration Practice Director Rebecca Macmillan or Partner Rachel Drew.

Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Rebecca Macmillan

Nicola Howell

Share this