One of the questions I am asked most often since the new skilled visa processing directions took effect is whether state nomination is now confined to “first priority” occupations. In this note, Negin Safaee, Registered Migration Agent (MARA 1791573), draws the precise line between processing order at the federal level and nomination criteria at the state level — a distinction that, once properly understood, changes the outlook for a great many subclass 190 and 491 matters. What follows is the same framework I apply when assessing real files.
The short answer
Yes. Ministerial Direction No. 122 governs only the order in which lodged skilled visa applications are considered and decided; it does not alter eligibility criteria or the skilled occupation lists. States and territories may therefore nominate occupations outside the first priority group, provided the occupation appears on the skilled occupation list for the relevant subclass and the applicant satisfies that state’s published criteria, ranking and allocation. The only consequence is that the visa application sits in a lower processing tier.
What the law says
Direction No. 122 is a “written direction of the Minister” made under section 499 of the Migration Act 1958. Section 499 of the Migration Act 1958 empowers the Minister to give written directions about the administration of the Act and the exercise of powers under it. The Department of Home Affairs has, in turn, published the official order for processing skilled visa applications based on that direction and operative from its commencement date.
Here is the decisive legal point: the instrument is about processing procedure, not grant requirements. The direction does not change occupation lists or visa requirements. It changes only the order of processing, not eligibility; occupation lists, visa criteria and the outcome of an application remain governed by the Migration Act 1958 and the Migration Regulations 1994.
State nomination, by contrast, is a separate jurisdiction that each state administers according to its own program and allocation. Victoria’s official position is unambiguous: all occupations on the relevant Department of Home Affairs occupation list are eligible for Victorian nomination, and only specified occupations within the health care, social services, education and construction industry groups receive priority. In other words, “priority” is not the same thing as an entry requirement.
Victoria’s two-tiered selection structure makes the same point: in each invitation round, Victoria first invites the Registrations of Interest with the highest Victorian Points Test scores across all eligible occupations, and in addition invites the highest scores within each priority industry. The four priority industries for 2026–26 are health care, social services, education and construction; only the occupations listed within each industry receive priority, and priority is not a guarantee of an invitation.
In New South Wales the mechanism differs but the logic is identical: to be eligible for NSW nomination, the occupation must fall within one of the ANZSCO unit groups set out in the NSW Skills List and must also be eligible for the visa itself. Specifically, the applicant must meet all Department of Home Affairs visa requirements and hold a valid skills assessment for an occupation that appears both on the eligible skilled occupation list for that visa and on the NSW Skills List.
Key requirements and criteria at a glance
| Issue | Legal position | Source |
|---|---|---|
| Nature of Direction 122 | A processing-order instrument made under section 499 of the Migration Act 1958; applies to lodged visa applications | Migration Act 1958, s 499 |
| Effect on eligibility | None; occupation lists and visa requirements remain untouched | Department of Home Affairs |
| Subclasses covered | 186, 187, 189, 190, 191, 489, 491, 494, 887 and 888 | Department of Home Affairs |
| Tier one (first priority) | Occupations in construction, health care, education, agriculture, aquaculture, fisheries, resources and law enforcement/defence interests — both onshore and offshore | Department of Home Affairs |
| Tiers two to four | 2) other primary applicants in Australia at the time of lodgement; 3) certain primary applicants outside Australia; 4) all other applications | Department of Home Affairs |
| Temporal scope | Both applications lodged before 19 September 2026 that remain undecided and applications lodged after that date | Department of Home Affairs |
| Victorian nomination | All occupations on the relevant Department of Home Affairs list are eligible; the four industries are merely prioritised | Live in Melbourne |
| NSW nomination | The occupation must appear both on the eligible occupation list for the visa and within an ANZSCO unit group on the NSW Skills List | NSW Government |
What this means for you
As Negin Safaee explains, three independent layers must be kept apart: state nomination, the issue of an invitation, and federal processing order. The fact that your occupation is not in the first priority group under Direction 122 does not close the door on state nomination at all; what matters at that layer is whether the occupation appears on the skilled occupation list for the relevant subclass and whether you meet the state’s own published criteria — and Victoria’s official position is precisely that all occupations on the Department of Home Affairs list are eligible for nomination, with only certain industry groups receiving priority.
At the same time, realism is part of sound advice: if your occupation is not in tier one, your subclass 190 or 491 application will sit in tiers two to four and will generally be decided after the first priority cases. Nomination is possible — it simply is not “as fast”. That is why the right strategy is usually a combination: choosing your state intelligently against its published criteria and allocation, maximising your score within that state’s ranking mechanism (such as the Victorian Points Test), and planning at the same time to maintain lawful status throughout the processing wait. One important practical warning: an application lodged before 19 September 2026 that remains undecided is automatically arranged under the new order — withdrawing and re-lodging only imposes a second visa application charge and achieves nothing.
With years of focused work on skilled and state nomination matters, and registered with MARA under number 1791573, Negin Safaee, Registered Migration Agent, maps these three layers separately for every file, so that your decision rests on the text of the law and published criteria rather than on social media rumour.
Sources
- Migration Act 1958 (Cth), s 499 — legislation.gov.au
- Department of Home Affairs — “Skilled visa processing priorities” — immi.homeaffairs.gov.au
- Live in Melbourne (Victorian Government) — “Nominated Occupation” — liveinmelbourne.vic.gov.au
- Live in Melbourne (Victorian Government) — “Victorian Points Test” (updated October 2026) — liveinmelbourne.vic.gov.au
- NSW Government — “Skilled Nominated visa (subclass 190)” — nsw.gov.au
- NSW Government — “NSW Skills Lists” — nsw.gov.au
Which tier will your application fall into?
If your occupation sits outside the first priority group and you are not sure which state would realistically invite your profile, there is no need to guess. In a dedicated assessment session, Negin Safaee, Registered Migration Agent (MARA 1791573), will match your occupation and skills assessment against the occupation list for each subclass, measure your score within each state’s ranking mechanism, and tell you plainly which processing tier your application is likely to fall into — so that instead of waiting aimlessly, you have a road map with realistic timeframes. To book, send a message with your occupation code and your current points score.
Read the short answer ←
Frequently asked questions
Does Ministerial Direction No. 122 prevent state nomination for non-priority occupations?
No. The direction is made under section 499 of the Migration Act 1958 and governs only the order in which lodged visa applications are considered and decided. It does not change occupation lists or visa requirements, and it is not a nomination or invitation instrument at all.
So what actually limits state nomination?
Two requirements. First, the occupation must be on the eligible skilled occupation list for the relevant subclass, as published by the Department of Home Affairs. Second, the applicant must satisfy that state’s published criteria, ranking mechanism and allocation. In New South Wales, for example, the occupation must also fall within an ANZSCO unit group on the NSW Skills List.
What is Victoria’s position on non-priority occupations?
The Victorian Government has stated that all occupations on the relevant Department of Home Affairs occupation list are eligible for Victorian nomination, and that only specified occupations within four groups — health care, social services, education and construction — receive priority. Priority is not a guarantee of an invitation.
If my occupation is not in tier one, when will my application be assessed?
Your application will sit in tiers two to four: other primary applicants who were in Australia at the time of lodgement, then certain primary applicants outside Australia, and finally all other applications. It will therefore generally be decided after the first priority cases.
Does Direction 122 affect the issue of SkillSelect invitations?
No. Invitations are issued on the basis of points ranking and occupation ceilings, and no ministerial direction extends to that process.
Should I withdraw and re-lodge my application to move into a higher tier?
No. An application lodged before 19 September 2026 that remains undecided is automatically arranged under the new order; re-lodging only imposes a second visa application charge.
This answer reflects the law and policy as verified on October 28, 2026. Immigration rules change frequently — confirm the current position before acting.
Mrs. Negin Safaee Registered Migration Agent 1791573
This article is general information only, current at the date shown, and is not legal advice. Do not rely on it for your own situation — immigration law and policy change frequently. Seek advice from a registered migration agent or immigration lawyer about your circumstances.