One of the most frequently asked questions in this week’s live session went straight to the point that causes the greatest confusion among skilled applicants: the relationship between “federal processing priorities” and “state nomination invitations”. Negin Safaee, Registered Migration Agent (MARA 1791573), answered by setting out the precise boundary between these two mechanisms, based on the text of the Migration Act and the official practice of the Department of Home Affairs. What follows is the full version of that analysis, with references to the legislative provisions, ministerial directions and the official pages of the Department of Home Affairs and the state governments.
The short answer
No. Federal skilled visa processing priorities (ministerial directions made under section 499 of the Migration Act 1958, including Direction 122) determine only the order in which the Department considers and decides visa applications. They do not require states and territories to issue 190 and 491 invitations and nominations in the same order or against the same occupation lists. Each state has its own criteria, skills list and priority industries. The only indirect effect is that, once you are nominated, your visa application sits in the federal queue and is considered according to those priorities.
What the law says
The backbone of this discussion is section 499 of the Migration Act 1958 (Migration Act 1958, s 499). This provision allows the Minister to give directions to decision-makers, and a person or body must comply with a direction under subsection (1). But in the skilled stream, the subject matter of these directions is not the criteria for granting a visa — it is the order of consideration. The official title of this family of directions says exactly that: Direction no. 87 — Migration Act 1958 — Direction under section 499 — Order of Consideration — Certain Skilled Migration Visas.
The current generation of these directions performs precisely the same function. This family of directions is expressly described as follows: the direction does not change the legal requirements for visa approval; it changes the order in which the Department generally considers applications. Direction 122 was signed on 18 September 2026, took effect the following day, 19 September 2026, and replaced the previous priorities for these visas.
The scope of Direction 122 is also precisely defined: the direction applies to skilled pathways including subclasses 186, 187, 189, 190, 191, 491 and 494 and creates four broad processing groups. The decisive legal point lies right here: processing priority does not mean eligibility or visa approval; these directions merely control the order in which the Department deals with applications, and an applicant must still meet all the legal requirements of the visa in question. In other words, the eligibility criteria, the occupation lists and the points test remain unchanged — only the application’s place in the queue shifts.
On the other side of the ledger, state nomination is a separate process that falls outside the scope of this direction. The Department’s official page on state and territory nomination allocations states the principle with minimal ambiguity: states and territories assess applicants against criteria specific to their own jurisdiction. The same page then makes the indirect point of connection clear: the Department considers existing applications and new applications for visas nominated by a state or territory in line with Permanent Migration Program planning levels and skilled visa processing priorities.
So two independent decisions are made at two different layers: the state decides “who to nominate”, and the Department decides “when, and in what order, the nominated visa application will be considered”.
Separating the two layers: federal priority versus state criteria
| Issue | Federal layer (section 499 direction) | State layer (190 / 491 nomination) |
|---|---|---|
| Legal basis | Section 499 of the Migration Act 1958; compliance with the direction is mandatory | Each state’s own policy and criteria; criteria specific to that jurisdiction |
| Subject of the decision | The order in which visa applications are considered and decided | Selection and invitation for nomination, before the visa is lodged |
| Occupation list | the occupation lists and the points test remain unchanged | Each state’s own list / priority industries |
| Effect on eligibility | processing priority does not mean eligibility or visa approval | Determines access to an invitation and the 5 or 15 nomination points |
| Numerical cap | Migration Program planning levels | a nomination allocation is the number of new primary applicants a state may nominate; this figure does not determine how many visas are granted in the year |
The four-tier order of consideration in Direction 122
- applications relating to priority sectors and occupations
- other applications where the primary applicant was in Australia at the time of lodgement
- applications where the primary applicant was outside Australia at the time of lodgement and whose application has not at any time been combined with another person’s application
- all other applications
The first group is built around national industries: the highest processing priority is given to selected occupations in construction, healthcare, education, agriculture, aquaculture, fisheries and resources, alongside occupations relevant to Australia’s law enforcement and defence interests.
A practical example: two states, two different logics
- New South Wales: to be eligible for NSW nomination, your occupation must sit in one of the ANZSCO unit groups listed on the NSW Skills List — a list reflecting the state’s in-demand skills — and you must also be eligible for that visa. The baseline criteria include a valid skills assessment for an occupation that is both on the eligible skilled occupation list for that visa and in an ANZSCO unit group on the NSW Skills List; and meeting one of the residence requirements: working in NSW in the nominated occupation, or living in NSW for at least six continuous months, or living outside Australia for at least six continuous months. In addition, you cannot apply directly for NSW nomination.
- Victoria: the logic is quite different. All occupations on the Department’s relevant occupation lists are eligible for Victorian nomination, and only certain occupations within the healthcare, social services, education and construction industry groups receive priority. For 2026–27, Victoria has prioritised four industries — healthcare, social services, education and construction — and only the occupations listed within each industry receive priority. The selection mechanism is also state-based: in each invitation round, the ROIs with the highest total Victorian points test score across all eligible occupations in the pool are invited, and within each priority industry the highest-scoring ROIs for that industry are selected. And the key point: to be considered for Victorian skilled nomination you must meet both the federal government’s visa requirements and the Victorian Government’s nomination requirements.
This comparison alone shows why an occupation may appear on one state’s list and have no place at all in another: each state decides on the basis of its own industries, mining sector and labour market needs. At the same time, state lists are an “additional filter” layered over the federal list, not a substitute for it — as NSW itself notes, not every occupation within a listed unit group is eligible, and your occupation must also be on the Department’s eligible skilled occupation list for that visa.
The nomination allocation figures you should know
- On 4 November 2025 the Australian Government set state and territory nomination allocations for the 2025–26 program year at 20,350.
- The subclass 190 share is 12,850 and the subclass 491 share is 7,500 places, distributed as ACT 800/800, NSW 2,100/1,500, NT 850/800, QLD 1,850/750, SA 1,350/900, TAS 1,200/650, VIC 2,700/700 and WA 2,000/1,400.
What this means for you
As Negin Safaee, Registered Migration Agent (MARA 1791573), explains, the right strategy begins by accepting this duality: to secure a 190 or 491 invitation you must build your case around the “logic of your target state”, and to shorten decision times after lodgement you need to know where you sit in the “federal order of consideration”. These two tasks do not cancel each other out — they complement each other.
Three practical conclusions follow. First, having your occupation on the federal priority list creates no obligation for any state, and the reverse is equally true: invitations are governed by that state’s criteria. Second, if a state nominates an occupation outside the federal priority sectors, your nomination is entirely valid, but your visa application’s place in the federal queue will depend on the processing priorities and other relevant circumstances, because the Department considers applications nominated by a state or territory in line with Permanent Migration Program planning levels and skilled visa processing priorities — which means your timing expectations need to be realistic. Third, the nominated occupation must in every case appear on the federal eligible skilled occupation list for that subclass — no state can work around this requirement.
The reassuring part is that, however complex this structure may look, it is entirely manageable. When your choice of target state, the timing of your ROI/EOI, your skills assessment and the documentation of your employment and residence are all aligned under a single plan, both your chances of an invitation and your decision timeframes improve. That is precisely why the approach here has always been to test an applicant’s profile against state criteria and against the federal order of consideration at the same time, before any step is taken, so that the decision rests on the reality of the case rather than on hearsay.
Sources
- Migration Act 1958 — s 499 Minister may give directions — AustLII (consolidated text of the Act)
- State and territory nomination allocations — Department of Home Affairs (updated around September 2026)
- Direction no. 110 — Migration Act 1958, Direction under section 499 — Department of Home Affairs (an example of the structure of section 499 directions)
- Direction no. 87 — Order of Consideration: Certain Skilled Migration Visas — Parliament of Australia (official document)
- Direction no. 122 — Order for considering and disposing of visa applications for certain provisional and permanent Skilled Visas — Department of Home Affairs (in effect from 19 September 2026)
- Skilled Nominated visa (subclass 190) — NSW nomination — NSW Government
- Nominated Occupation — Live in Melbourne — Victorian Government
- Victorian Points Test — Live in Melbourne, Victorian Government (updated October 2026)
Your case, two separate queues — let’s map both of them precisely
If your occupation is on the federal priority list but no state has invited you, or the reverse — you have an invitation and you are worried about a drawn-out visa assessment — the answer lies in a careful, personalised assessment: which state aligns with your profile, which processing group will dictate your timeframes, and which step you should take today. Negin Safaee, Registered Migration Agent (MARA 1791573), is ready to review your case, with the same candour, precision and reliance on official sources you have seen in this article. Simply send us the details of your skilled profile (assessed occupation, points score, preferred state, and onshore/offshore status) and we will map out your clear, realistic next step together.
Frequently asked questions
Does Ministerial Direction 122 require states to issue 190 and 491 invitations according to the federal priorities?
No. The direction, made under section 499 of the Migration Act 1958, determines only the order in which the Department considers and decides visa applications; it does not change the legal requirements for a visa. The Department’s official page makes clear that states and territories assess applicants against criteria specific to their own jurisdiction.
If my occupation is on the federal priority list, does that improve my chances of a state invitation?
Not automatically. State invitations are issued on the basis of that state’s own skills list and priority industries. Victoria, for example, has prioritised four industries for 2026–27 — healthcare, social services, education and construction — while NSW ties nomination to the ANZSCO unit groups listed on the NSW Skills List.
Can a state nominate an occupation that is not on the federal occupation list for 190 or 491?
No. The nominated occupation must be on the Department’s eligible skilled occupation list for that subclass. State lists are an additional filter layered over the federal list, not a substitute for it: in NSW, the occupation must be both on the federal list for the 190 and in an ANZSCO unit group on the NSW Skills List.
What indirect effect do the federal priorities have on my nominated application?
Once the visa is lodged, the Department considers applications nominated by a state or territory in line with Permanent Migration Program planning levels and skilled visa processing priorities. So if your occupation is not in a federal priority sector, your place in the queue will also depend on other relevant circumstances, and decision timeframes are not guaranteed.
What is the order of consideration under Direction 122?
There are four broad groups: first, applications in priority sectors and occupations; then other applications where the primary applicant was in Australia at the time of lodgement; then applications where the primary applicant was outside Australia at lodgement and whose application has not at any time been combined with another person’s application; and finally all other applications. The highest priority goes to selected occupations in construction, healthcare, education, agriculture, aquaculture, fisheries and resources, as well as occupations relevant to law enforcement and defence interests.
What were the 190 and 491 nomination allocations for 2025–26?
On 4 November 2025 the Australian Government set total state and territory nomination allocations at 20,350 places: 12,850 for subclass 190 and 7,500 for subclass 491. That figure is the number of new primary applicants a state may nominate; it does not determine how many visas are granted in the year.
This answer reflects the law and policy as verified on October 30, 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.