Let's Talk
EMPLOYER NOMINATION SCHEME
TALK TO US TODAY FOR EXPERT ADVICE

INTRODUCTION

The Employer Nomination Scheme (ENS) - Subclass 186 visa is available for businesses that are actively operating in Australia. The Employer Nomination Scheme comprises a single visa (Subclass 186) under three streams - 

  • Temporary Residence Transition (TRT)
  • Direct Entry (DE) and 
  • Agreement. 

Key points: 

  • The Temporary Residence Transition stream is for Subclass 457 visa holders who have worked for their nominating employer for at least the last two years and the employer wants to offer them a permanent position in that same occupation. That is, the employee is offered a 'nomination'. 
  • The Direct Entry stream is for persons who are untested in the Australian labour market and are applying for a Subclass 186 visa from outside Australia or are applying from within Australia but are either ineligible for or wish to bypass the Temporary Residence Transition stream.
  • The Agreement stream is for persons who are being sponsored by an employer who is a party to a labour agreement that is in effect.

The Subclass 186 Visa involves a two-step process, firstly, nomination by an approved Australian employer and then an application under the nominated stream (TRT, DE or Agreement). 

You might be eligible for a Subclass 186 visa if you:

  • Have been nominated by an Australian employer within the six months before you apply.
  • Are under the age of 50 at the time of application, if you are applying under the Temporary Residence stream, or are under the age of 45 if you are applying under the Direct Entry stream, unless an exemption applies.
  • Have the required skills and qualifications for the nominated position.
  • Meet the English language requirements. 
  • Meet health and character requirements

You can be in or outside Australia when you apply for a Subclass 186 visa.


NOMINATING EMPLOYEES

Australian employers can nominated a skilled worker for this visa if the business: 

  • Actively and lawfully operate a business in Australia.
  • Demonstrates a genuine need for a paid employee to fill a skilled position.
  • Offers a skilled position in the applicant's field that is full time and ongoing for at least two years.
  • Pays the employee a market salary rate.
  • Complies with Australian immigration and workplace relations laws.
  • Has no adverse information known about its operation or any person associated with the entity it operates. 

Employers must nominate the applicant in one of the three streams and meet the requirements of that stream.

  • Temporary Residence Transition (TRT) stream.
  • Direct Entry (DE) stream and 
  • Agreement stream. 

TEMPORARY RESIDENCE TRANSITION STREAM

The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for at least two out of the three years whilst holding a subclass 457 visa, in the same occupation with their nominating employer who wants to offer them a permanent position in that occupation.

Employers must note: 

  • They must be the standard business sponsor of the 457 visa holder to nominate.
  • They are not subject to a labour agreement.
  • The employee must have worked in the nominated position in the employers business, as the holder of a Subclass 457 visa as a primary visa holder, for at least two out of the previous three years before the nomination is lodged.
  • The nomination must identify an occupation (for the position) that has the same four-digit occupation unit group code as the 457 approved occupation.
  • The nominated position must be full time, ongoing and available for at least two years and be consistent with the position in which the applicant has already worked in the nominating employers business. The only exception to this rule is when the employee was previously nominated for their subclass 457 visa on the basis of performing an occupation mentioned by the Minister for Immigration and Border Protection in an instrument in writing.
  • The nominating employer must have met the subclass 457 visa training requirements in each year it has been a standard business sponsor. This is in accordance with the employers obligations as an approved Standard Business Sponsor. 

If, during the two years prior to nominating, the 457 visa holder has worked for an associated entity of the current standard business sponsor, evidence must be provided that the 457 visa holder has been working in the same role, with the same employer and in the same location, for the entire two years they held their subclass 457 visa.

If, during the two years prior to nominating, the 457 visa holder has been working for an associated entity of the current standard business sponsor, and the associated entity intends to nominate the 457 visa holder, they must first become an approved standard business sponsor and provide evidence that the 457 visa holder has been working in the same role, with the same employer and in the same location, for the entire two years they held their subclass 457 visa.

If, during the two years prior to nominating, a new standard business sponsorship was required at any stage to ensure the applicant complied with condition 8107 of their subclass 457 visa obligations, you will need to provide evidence that the previous standard business sponsor and yourself as the current standard business sponsor might be considered the same employer of the 457 visa holder. This might occur in situations where the standard business sponsor has undergone business sale, takeover or restructure, which might have changed their entity, requiring a new standard business sponsorship approval.

The period of time already worked with the previous subclass 457 visa standard business sponsor might be considered towards the two-year requirement of the Temporary Residence Transition stream only in those cases where you are able to demonstrate that the nominated person has been working in the same role, with the same employer and in the same location for the whole two years they held their subclass 457 visa.

TEMPORARY RESIDENCE TRANSITION STREAM - THE AGE REQUIREMENT

At time of application, you must have been under 50 or be a person in any of the five classes of persons approved for an exemption by the Minister for Immigration and Border Protection:

Skill level 1 or 2 researchers, scientists and technical specialists nominated by an Australian government scientific agency. 

Nine examples of ANZSCO occupations that are skill level 1 or 2 research, scientific and technical positions are:

  • Chief of Division
  • Chief Research Scientist
  • Corporate Executive (Class 1, 2, and 3)
  • Director of Institute
  • Principal Research Scientist
  • Post-doctoral Fellow
  • Research Scientist Senior
  • Principal Researcher
  • Scientist Senior Research Scientist.

The following nine entities are those identified as Australian government agencies whose employees may benefit from the age exemption:

  • CSIRO
  • ANSTO
  • The Australian Astronomical Observatory
  • The National Measurement Institute
  • IP Australia
  • Questacon
  • The Australian Institute of Marine Science
  • The Defence Science and Technology Organisation
  • The Australian Bureau of Agricultural and Resource Economics and Sciences.

The Temporary Residence Transition stream age exemption is not available to:

  • Visa applicants nominated by Australian government agencies for positions in other occupations, such as accountants or human resources personnel or
  • Visa applicants nominated by government-subcontracted commercial bodies or
  • Visa applicants nominated by agencies at the local government level.
Senior academics nominated by an Australian University

The age exemption requirements can be met if Subclass 186 visa applicants are nominated by a university in Australia for a position at Academic Level of B, C, D or E as a University Lecturer (ANZSCO 242111) or Faculty Head (ANZSCO 134411).

The TRT age exemption applies only to visa applicants nominated by Australian Universities. It does not apply to persons nominated by other higher educational institutions such as TAFE colleges or to persons nominated for non-academic positions.

The Subclass 186 age exemption only covers persons to be employed at an Academic Level of B, C, D or E as a University Lecturer (ANZSCO 242111) or Faculty Head (ANZSCO 134411). The occupation of University Lecturer is intended to encompass a broad range of research and teaching occupations and can include professionals qualified in a range of disciplines such as biology, chemistry and engineering, regardless of the how much time the visa applicant will spend directly educating students.

The age exemption to University Lecturers is available because senior academics achieve positions at the higher levels over a long period of time through work involving research and publications; they may therefore be older and may not satisfy the standard age requirement.

Subclass 457 visa holders who have been working for their nominating employer for at least the four years immediately before applying for their Subclass 186 visa and whose annual earnings for each year in that 4 year period have been at least at the (FWHIT) Fair Work High Income Threshold.

The FWHIT is an annually indexed benchmark income set within the Fair Work Act 2009. The high income threshold affects three main entitlements:

  • Employees who earn over the high income threshold, and who are not usually covered by a modern award or enterprise agreement, cannot make a claim for unfair dismissal.
  • Employees who have agreed to a written guarantee of annual earnings by their employer, that is more than the high income threshold, no longer receive their modern award entitlements, but are entitled to make a claim for unfair dismissal.
  • The maximum compensation payable for unfair dismissal is capped at half the high income threshold or the equivalent of 6 months of the dismissed employee’s wage, whichever is lower.
Medical Practitioners in Regional Australia 

An exemption to the age requirement is available to applicants who: 

  • Are qualified medical practitioners. 
  • Hold a current Subclass 457 visa. 
  • Have been working in their nominated occupation for at least four years before applying. At least two years of this employment must have been in Regional Australia. 
  • Whose nominated position is located in Regional Australia. 
ENGLISH LANGUAGE EXEMPTIONS
High Income Earners

As of 1 July 2017, the $180,000 high income exemption for English language proficiency is no longer available.

The Department will continue to apply the exemption as in force before 1 July 2017 to applications made prior to the 1 July 2017. 

Five years or more full-time study in secondary and/or higher education, with all tuition in English

Higher education is understood to mean tertiary studies at University or equivalent level. 

The visa applicant must have completed all studies, other than those that may relate to specific languages, in English. For example, if the course covered various subjects including Spanish and French as specific subjects, instruction for all subjects other than Spanish and French must have been delivered in English.

The required total of five years can consist of full-time study at secondary (high-school) level only; or it can be a mixture of secondary and tertiary studies; or it can consist of university level-equivalent study only, comprising a mixture of undergraduate (Bachelor) and graduate (Masters and/or Doctoral) studies.


DIRECT ENTRY STREAM

You can apply for a Subclass 186 visa under the Direct Entry Stream if you have not worked in Australia or if you are a temporary resident who does not qualify for the Temporary Residence Transition Stream. 

DIRECT ENTRY STREAM - THE AGE REQUIREMENT

As of 1 July 2017, at time of application, Subclass 186 visa applicants must be less than 45 years old, or be a person in any of the three classes of persons approved for an exemption by the Minister for Immigration and Border Protection:

  • Skill Level 1 or 2 researchers, scientists and technical specialists nominated by an Australian government scientific agency. 
  • Senior Academics nominated by an Australian University. 
  • New Zealand Citizens and their family members. 

Skill level 1 or 2 researchers, scientists and technical specialists nominated by an Australian government scientific agency. 

Nine examples of ANZSCO occupations that are skill level 1 or 2 research, scientific and technical positions are:

  • Chief of Division
  • Chief Research Scientist
  • Corporate Executive (Class 1, 2, and 3)
  • Director of Institute
  • Principal Research Scientist
  • Post-doctoral Fellow
  • Research Scientist Senior
  • Principal Researcher
  • Scientist Senior Research Scientist.

The following nine entities are those identified as Australian government agencies whose employees may benefit from the age exemption:

  • CSIRO
  • ANSTO
  • The Australian Astronomical Observatory
  • The National Measurement Institute
  • IP Australia
  • Questacon
  • The Australian Institute of Marine Science
  • The Defence Science and Technology Organisation
  • The Australian Bureau of Agricultural and Resource Economics and Sciences.

The Temporary Residence Transition stream age exemption is not available to:

  • Visa applicants nominated by Australian government agencies for positions in other occupations, such as accountants or human resources personnel or
  • Visa applicants nominated by government-subcontracted commercial bodies or
  • Visa applicants nominated by agencies at the local government level.
Senior Academics Employed by an Australian University

The age exemption requirements can be met if Subclass 186 visa applicants are nominated by a university in Australia for a position at Academic Level of B, C, D or E as a University Lecturer (ANZSCO 242111) or Faculty Head (ANZSCO 134411).

The TRT age exemption applies only to visa applicants nominated by Australian Universities. It does not apply to persons nominated by other higher educational institutions such as TAFE colleges or to persons nominated for non-academic positions.

The Subclass 186 age exemption only covers persons to be employed at an Academic Level of B, C, D or E as a University Lecturer (ANZSCO 242111) or Faculty Head (ANZSCO 134411). The occupation of University Lecturer is intended to encompass a broad range of research and teaching occupations and can include professionals qualified in a range of disciplines such as biology, chemistry and engineering, regardless of the how much time the visa applicant will spend directly educating students.

The age exemption to University Lecturers is available because senior academics achieve positions at the higher levels over a long period of time through work involving research and publications; they may therefore be older and may not satisfy the standard age requirement.

New Zealand citizens and their family members

Subclass 186 visa applicants may might be able to meet the age exemption if: 

  • They hold a Special Category (Subclass 444) or New Zealand Family Relationship (Subclass 461) visa.
  • They have been working for their nominating employer in their nominated occupation for at least two years (excluding any periods of unpaid leave) in the three year period immediately before applying while the holder of a Subclass 444 or 461 visa. 
ENGLISH LANGUAGE PROFICIENCY EXEMPTIONS

As of 1 July 2017, the $180,000 high income exemption for English proficiency is no longer available to Subclass 186 visa applicants. The Department of Immigration and Border Protection will continue to apply the exemption as in force before 1 July 2017 to applications made prior to the 1 July 2017.


DIRECT ENTRY - THE SKILL REQUIREMENT 

Subclass 186 visa require a suitable skills assessment by the relevant assessing authority and need to have been employed in their nominated occupation for at least three years. Alternatively, visa applicants can be exempt from the requirement to demonstrate that they have certain skills. 

Skills as at time of visa application

Subclass 186 visa applicant's must provide evidence that, at the time of their application, their skills had been assessed as being suitable for the occupation. A skills assessment undertaken after the visa application was made does not meet visa requirements.

Skills assessments can be submitted after the visa application is made but the results of the assessment must have been obtained prior to date of visa application.

For occupations that require mandatory registration/licensing and for which the skills assessing authority is also the authority responsible for registration/licensing, evidence of full registration/licensing is sufficient evidence of the applicant’s skills in the occupation.

Must have been employed in the nominated occupation for 3 years

Subclass 186 visa applicant's must have been employed for at least 3 years in the occupation for which they have been nominated. Visa applicant's must have worked full-time for at three years however the period of work does not have to be continuous, or be immediately before the visa application was made. In order for the work completed to qualify as full-time, the visa applicants should have worked for at least 35 hours per week.

Visa applicants must have been employed and actively performing the duties of the nominated occupation for three years after obtaining any qualifications that would allow them to work in the nominated occupation. Any work performed in a training capacity, for example, as an apprentice or trainee does not count towards the three year work experience requirement.

Persons not required to demonstrate their skills

The following categories of Subclass 186 visa applicants are not required to demonstrate their skills. That is, they do not have to supply a skills assessment and satisfy the three year full-time work requirement.

  • Researchers, scientists and technical specialists at ANZSCO skill levels 1 or 2, who have been nominated by Australian government agencies. 
  • Academics nominated by a University in Australia. 
  • Subclass 444 (Special Category) and Subclass 461 (New Zealand Family Relationship) visa holders currently in Australia who have been working with their nominating employer in their nominated occupation for two years in the three year period immediately before applying for their visa. 


© Copyright 2019 CNA Immigration Pty Ltd 

Migration Agent Registration Number 0851787

        

', 'auto');ga('send', 'pageview');