The Non-Ongoing Requirement: When a 3-Month Project Becomes a Migration Red Flag

A Subclass 400 can be granted for up to six months. That fact leads a lot of businesses to plan a five month engagement and assume the visa will follow. It often does not, because the length of the stay and the nature of the work are assessed together, and the longer the stay, the harder it becomes to argue the work is genuinely non-ongoing.

Home Affairs states the threshold directly on its Subclass 400 page: “Generally, for a stay period longer than 3 months, a strong business case must be provided with the application.”

This article explains what the non-ongoing test actually requires, why three months functions as a practical pressure point, and what the compliance exposure looks like for the Australian business hosting the work.

The requirement in the regulations

Clause 400.222 of the Migration Regulations 1994 is one sentence:

The applicant’s engagement in the work will be non-ongoing.

Home Affairs then supplies the working definition:

Non-ongoing work means work that is likely to be completed within 6 months or less, and you do not expect or arrange to stay in Australia after this time for any reason related to that work.

There are two limbs joined by “and”, and both must hold. Businesses tend to focus entirely on the first and forget the second exists.

Limb one is about duration. Will the work be finished within six months?

Limb two is about intention and arrangements. Is there any expectation, or any arrangement, that the person stays on afterwards for a reason connected to that work?

Limb two is where most otherwise-sound applications quietly fail. A project can be genuinely six weeks long and still fail the test if there is an understanding that the specialist returns for the next phase, transitions into a permanent role, or stays to support the thing they built.

Why three months is the pressure point

Nothing in the regulations makes three months a legal boundary. The visa can be granted up to six months. What changes at three months is the evidentiary burden, and Home Affairs says so plainly: beyond three months, a strong business case must generally be provided.

That makes sense once you see the criteria working together. A short, sharp engagement is self-evidently finite. A five month engagement looks a lot more like a job. The decision maker is being asked to accept two things at once: that this work is highly specialised and unavailable locally under clause 400.221, and that it will simply stop and the person will leave under clause 400.222 and clause 400.213.

The longer the stay, the more those two propositions pull against each other. If the role sustains a person for most of a year, the obvious question is why it is not a position that could be filled or trained for in Australia.

What a strong business case actually contains

“Strong business case” is not defined in the regulations, so this is drawn from what tends to satisfy the criteria rather than from a prescribed list.

A dated work plan with an endpoint. Not a start date and a duration, but milestones and a defined completion event. Commissioning signed off. System handed over. Certification issued.

An explanation of why the duration is what it is. If the work takes four months, something about the work should make four months necessary. Equipment lead times, a testing cycle, a regulatory sign-off window.

Evidence the skills are not reasonably available here. Home Affairs requires that the skills “can’t reasonably be found in the Australian labour market”, and notes the business “might need to show that they have tried to find Australian workers to do the work first”. If you ran recruitment, keep the advertisements and the outcomes.

A knowledge transfer plan. This one does double duty. It supports clause 400.224, which requires that the applicant does not intend to engage in activities with adverse consequences for employment or training opportunities for Australians, and it demonstrates the engagement ends because someone local takes it over.

Consistency across every document. If the work plan says twelve weeks and the contract says “ongoing support as required”, the contract wins the argument in the case officer’s mind.

The sentences that turn a good application into a refusal

We see the same phrases sink applications. None of them are dishonest. All of them tell the decision maker the engagement is not non-ongoing.

• “Following completion, [name] will return for phase two.”
• “This role may become permanent subject to performance.”
• “Ongoing maintenance and support will be provided.”
• “We anticipate a further engagement later in the year.”
• “[Name] will remain available to the Australian team after handover.”

The fix is not to delete the sentence. If any of those statements are true, the 400 is the wrong visa, and removing the words does not change the facts. It creates a different problem, because clause 400.215 requires the applicant to satisfy PIC 4020, which deals with information that is false or misleading in a material particular. An application that conceals a known intention is a far worse outcome than one that never gets lodged.

Where the work genuinely continues, the answer is an employer-sponsored pathway. We cover that across our employer sponsorship service.

The compliance exposure for the Australian business

This is the part that turns a visa question into a board-level one, and it is not widely understood.

Section 245AC of the Migration Act 1958 creates an offence for allowing a lawful non-citizen to work in breach of a work-related condition. A person contravenes it if they allow, or continue to allow, another person to work; that worker is a lawful non-citizen; the worker holds a visa subject to a work-related condition; and the worker is in breach of that condition solely because of doing the work.

The penalty for the offence is imprisonment for 2 years or 360 penalty units, or both. There is also a civil penalty provision carrying 240 penalty units. The value of a penalty unit is set under Commonwealth law and is indexed periodically, so check the current figure rather than relying on an older conversion.

There is a defence, and it is the reason this matters operationally. Section 245AC(2) provides that the offence does not apply if the person “takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition”, including by using a computer system prescribed by the regulations. In practice that means checking visa conditions through VEVO, and checking again when circumstances change, rather than once at onboarding.

Why this bites specifically on the Subclass 400: clause 400.611 provides that conditions 8107 and 8303 must be imposed on primary applicants. Condition 8107 prevents the holder from working in a position or occupation inconsistent with the one the visa was granted for, and from working for another person or on their own account during that employment.

So if the project overruns and you redeploy the specialist to a different site, a different task, or a different entity in the group, you are potentially allowing work in breach of a work-related condition. The intention behind the redeployment is irrelevant to whether the condition was breached.

If you want a sense of how actively this area is monitored, see our note on employer sponsorship audits.

What happens when the project overruns

Plan for this before it happens, because the options are narrow.

The visa cannot be extended. Home Affairs states you cannot stay longer by extending it and cannot apply for it from within Australia. A new application must be lodged from outside Australia.

There is also no bridging visa safety net. Home Affairs notes that if a person travels to Australia on a different visa and that visa ends, they cannot get a bridging visa to stay, because they must be outside Australia when the decision is made.

And condition 8503 may be imposed under clause 400.611. Where it is, the holder generally cannot be granted another substantive visa while they remain in Australia.

The honest planning position is this. If an overrun is genuinely foreseeable, that is evidence the work may not be non-ongoing, and the right response is to reconsider the visa rather than to build a contingency around extending one that cannot be extended.

Frequently asked questions

Can we apply for six months and just use three?

You can apply for the period the work requires. Asking for six months when the work takes three invites the question of what the person is doing for the other three, and weakens the non-ongoing argument. Ask for what the work plan supports.

Does a gap between visits reset the non-ongoing test?

Not by itself. The definition asks whether you expect or arrange to stay after the work for any reason related to it, and a pattern of repeat short stays covering continuous work speaks to the genuine temporary entrant requirement in clause 400.213.

Can the specialist do a small piece of unrelated work while here?

Condition 8107 prevents working in a position or occupation inconsistent with the one the visa was granted for, and prevents work for another person or on their own account during that employment. So generally no.

What if the client, not us, extends the scope?

The condition binds the visa holder, and section 245AC exposes whoever allows the work. Scope changes need to be assessed before the work starts, not after.

Is there a stronger option for longer projects?

Usually yes. If the engagement runs long or repeats, employer sponsorship is normally the more durable structure. Our guide to whether the 400 is the right visa compares the pathways, and why applications get refused sets out the patterns to avoid.

A realistic next step

Take the project plan and mark the completion event. If you cannot point to a specific thing that happens and then the work is finished, the engagement is probably not non-ongoing, whatever the calendar says. If you can, and it lands past three months, start building the business case now rather than assembling it in the week before lodgement.

If you would like the engagement structured and assessed before you lodge, you can book a consultation with our migration lawyers and we will look at the work plan, the conditions and the compliance exposure together.

About the author: Tina Nematian is the Principal Lawyer at One Planet Migration Law. She is admitted as an Australian Legal Practitioner and is a Registered Migration Agent, and has guided clients through partner, skilled, employer-sponsored, student, and humanitarian visa applications across Australia.

Legislative references in this article were checked against the Migration Regulations 1994 and the Migration Act 1958 as in force on 3 August 2026. Visa rules change frequently. Always check immi.gov.au before lodging.

This article is general information only and does not constitute legal or migration advice. Visa rules change frequently and outcomes depend on individual circumstances. Speak with a registered migration lawyer or agent before making any application.