Comprehensive Legal Guide: Remaining Relative (115/835) and Carer (116/836) Visas for US Citizens

Introduction

The Remaining Relative and Carer visa streams are permanent family visas designed for highly specific circumstances. The Remaining Relative visas (Subclass 115 Offshore / 835 Onshore) are for individuals whose only near relatives reside in Australia. The Carer visas (Subclass 116 Offshore / 836 Onshore) are for individuals who need to move to Australia to care for a relative with a severe, long-term medical condition. Crucial Note: Both visa categories are subject to 'cap and queue' arrangements under Section 85 of the Migration Act 1958. Remaining Relative visas currently face estimated wait times of up to 50 years, while Carer visas face wait times of 4 to 12 years.

1. Detailed Eligibility Requirements

Remaining Relative (Subclass 115/835)

• Sponsorship: Must be sponsored by an eligible parent, sibling, or step-equivalent who is an Australian citizen, permanent resident, or eligible NZ citizen.
• The 'Near Relative' Test: You (and your partner, if applicable) must not have any near relatives living outside Australia. A 'near relative' includes parents, siblings, children, and step-equivalents. If you have a sibling living in the US, you are ineligible.
• Age: No strict age limit, but you must not be a dependent child who should apply for a Child visa.

Carer (Subclass 116/836)

• Sponsorship: Must be sponsored by the relative requiring care (or their cohabiting partner).
• Medical Assessment: The Australian relative's medical condition must be formally assessed by Bupa Medical Visa Services. The condition must be rated at least 30/100 on the impairment scale and require direct care for at least 2 years.
• Lack of Local Alternatives: You must prove that the care cannot reasonably be provided by any other relative in Australia, nor by Australian health, welfare, or community services.

General Requirements (Both)

• Health & Character: Must pass Australian medical examinations and provide FBI Identity History Summaries and state police clearances.
• Assurance of Support (AoS): A mandatory legal commitment by an Australian resident (usually the sponsor) to repay the Australian Government for any welfare payments claimed by the applicant during their first 2-4 years in Australia.

2. Step-by-Step Application Process (US to Australia)

• Step 1: Medical Assessment (Carer Only): The Australian sponsor must initiate a medical assessment with Bupa Medical Visa Services before the visa application is lodged.
• Step 2: Gather Documentation: Compile all identity, relationship, and character documents. US citizens must obtain FBI checks and relevant state police clearances.
• Step 3: Lodge the Application: These visas generally require paper applications sent to the Parent/Other Family Visa Centre in Perth, Australia.
• Step 4: Receive a Queue Date: Once the Department of Home Affairs assesses that you meet the core criteria, you are given a 'queue date'. You are now in the waiting pool.
• Step 5: The Waiting Period: Wait for a visa place to become available under the annual migration program limits. For Subclass 115, this can be decades. For Subclass 116, this is typically 4-12 years.
• Step 6: Final Processing & AoS: When your queue date is reached, the Department will request updated health/character checks and the formal Assurance of Support.
• Step 7: Visa Grant & Relocation: Once granted, offshore applicants (115/116) must enter Australia by the specified initial entry date.

3. Required Documentation

• Form 47OF: Application for migration to Australia by other family members.
• Form 40: Sponsorship for migration to Australia.
• Form 80 & Form 1221: For character and security assessments.
• Identity Documents: Certified copies of US passports, birth certificates, and marriage certificates.
• Carer Specific: Bupa Medical Visa Services certificate and detailed statements explaining why local Australian care options are insufficient.
• Remaining Relative Specific: Comprehensive family tree declarations proving the whereabouts of all living relatives globally.

4. Legal Nuances, Compliance Rules, and US Tax Implications

Cap and Queue Legislation

Under the Migration Act 1958, the Minister sets a maximum number of family visas that can be granted each financial year. Once the cap is reached, no further visas are granted until the next year, creating massive backlogs. Applicants must maintain their eligibility throughout the entire waiting period.

US Expat Tax Implications

US citizens are subject to citizenship-based taxation. Moving to Australia on a permanent visa triggers complex cross-border tax obligations:

• FATCA & FBAR: You must report Australian bank accounts to the US Treasury via FinCEN Form 114 (FBAR) if aggregate balances exceed $10,000 USD.
• Australian Superannuation: Australia's mandatory retirement system (Superannuation) is often viewed by the IRS as a Foreign Grantor Trust. This requires complex reporting (Form 3520/3520-A) and may be subject to Passive Foreign Investment Company (PFIC) rules (Form 8621).
• Totalization Agreement: The US and Australia have a Totalization Agreement to prevent double taxation on social security, but you must carefully manage Medicare levies and US self-employment taxes.

5. Common Pitfalls, Reasons for Rejection, and Edge Cases

• Pitfall - Misunderstanding 'Near Relative': Many Subclass 115 applications are rejected because the applicant forgets about an estranged step-sibling or a biological parent they have no contact with. Estrangement does not remove them from the 'near relative' definition.
• Pitfall - Changing Circumstances During the Wait: Because the wait time is decades long, if the applicant marries someone who has overseas relatives, the applicant instantly loses eligibility for the Remaining Relative visa.
• Rejection Reason - Insufficient Evidence of Care Alternatives (Carer Visa): The Department frequently rejects Carer visas if they determine that the sponsor could simply hire a local nurse or use the National Disability Insurance Scheme (NDIS) instead of bringing a relative from the US.
• Edge Case - Death of Sponsor: If the Australian sponsor passes away during the 10+ year wait, the visa application generally fails, though there are extremely narrow exceptions if the applicant has already moved onshore and formed deep ties, which is rare for these subclasses.

Pre-Application Lead Times

• Carer Visa Medical Assessment: For the Carer visa (116/836), the Australian relative must undergo a medical assessment by Bupa Medical Visa Services to prove their condition and care needs. This can take 3 to 6 months to arrange and process.
• Family Documentation: For the Remaining Relative visa (115/835), gathering exhaustive proof that you have no near relatives residing outside Australia can take several months.
• Police Clearances: US citizens must obtain an FBI Identity History Summary and state police certificates for any state lived in for 12+ months. These typically take 2 to 4 weeks.
• Health Examinations: Must be completed by an approved panel physician, usually taking 1 to 3 weeks to book. However, applicants are strongly advised to wait until explicitly requested by the Department of Home Affairs due to the extreme processing times (often exceeding 50 years for these capped family visas).

Post-Arrival Mandates

• Initial Entry: If granted offshore (Subclasses 115 or 116), you must enter Australia before the specified 'Must Enter By' date to activate your permanent residency.
• Medicare Enrollment: Register for Medicare, Australia's public healthcare system, by visiting a Services Australia center with your passport and visa grant notice.
• Tax File Number (TFN): Apply for a TFN online through the Australian Taxation Office (ATO) to work locally and ensure you are not taxed at the maximum emergency rate.
• Assurance of Support (AoS) Activation: The sponsor or assurer's AoS bond will be held for a specified period (usually 2 years for these visas) to cover any recoverable welfare payments made to the applicant.

Renewal Conditions & Path to Citizenship

• Visa Validity: Subclasses 115, 116, 835, and 836 are permanent visas allowing indefinite stay. However, the international travel facility expires after 5 years.
• Resident Return Visa (RRV): To travel internationally and return to Australia as a permanent resident after the initial 5-year travel facility expires, you must apply for an RRV (Subclass 155/157). This requires demonstrating substantial ties to Australia and usually having lived there for 2 of the last 5 years.
• Path to Citizenship: You can apply for Australian citizenship by conferral after residing in Australia on a valid visa for 4 years, including at least 12 months as a permanent resident immediately prior to applying. You must not have been absent from Australia for more than 12 months total in the 4-year period, and no more than 90 days in the 12 months immediately before applying.