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Employer Nomination Scheme (ENS) - subclass 186 visa

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ENS

• Employers seeking to fill a full-time position within their organisation on a permanent basis can nominate a skilled individual from overseas

• workers in Australia on a temporary basis for permanent residence

• once granted, individuals are allowed to stay in Australia indefinitely although are required to apply for Resident Return visa to travel to Australia following an initial period of 5 years

• ENS allows employers to nominate skilled individuals full-time within their business on a permanent basis

• Consists of 2 stages:

  • a nomination application;

  • an individual visa application

• There are 3 pathways within the visa program with different eligibility criteria and application

  • Temporary Residence Transition; Temporary Residence Transition stream (TRT) — streamlined pathway for eligible subclass 457 visa holders transitioning to permanent residence.

  • Direct Entry; Direct Entry stream (DE) — general pathway for individuals in Australia who do not qualify to apply under the TRT stream or who are applying from overseas

  • Agreement streams: pathway for applicants sponsored by employers that have entered into a labour agreement with the Department of Home Affairs (the Department) to sponsor skilled workers for permanent residence. Labour agreements would generally be negotiated, where the nominated occupation is not included on the list of eligible occupations for the ENS or RSMS programs, or where further exemptions are required in relation to English language or the skill of the applicants.

Application process

• Nomination stage – employer and the position being nominated

• Visa application stage – primary applicant for a visa and any family members included in the visa application

Nomination stage ENS

• Can only be lodged by Department website

Similarities between Temporary Residence Transition & Direct Entry

• As part of the nomination criteria, employer must:

  • Actively and lawfully operating a business in Australia

  • Offer full-time position for at least 2 years

  • Position is listed on the Medium and Long-term Strategic Skills List

  • Salary-related criteria met

  • No adverse information known about business

  • Record of compliance with the laws at workplace

  • Applications after 12 August 2018 must have the Skills Australian Fund levy

Temporary Residence Transition Stream additional criteria

• Nominee is a primary subclass 457 visa holder or primary subclass 482 visa holder in the medium-term stream and is nominated for the same 4-digit occupation group code as the occupation that was nomination on the visa

• The nominee employed full time in position which they hold a 457 visa for at least 3 years in the 4 years (Excluding unpaid leave)

• Genuine need for the nominator to employ the person as paid employee

• Nominating entity is current 457 or 482 sponsor

• The position in nominating entity or an associated entity

• Applications prior to 12 August 2018 – nominating entity has met the training requirements for business sponsorship, complied with sponsorship obligations related to training

Direct Entry Stream – additional criteria

• Paid employee in a position under the nominator’s direct control

• The business which is located is directly operated by nominator

• The nominated occupation appears on LIN19/049 and performed in Australia

• Applications prior to 12 August 2018 – the training benchmarks as prescribed were met

Agreement stream

• Nomination application that have been assessed in finalising the labour agreement

• No specific legislative criteria for a nomination under the agreement stream

• The nomination is administrative and is approved as matter of course

Application stage – ENS

• Must be lodged within 6 months of the date the nomination was approved

• The nomination application must be lodged before the visa application

• The applicant can be in or outside of Australia

• The primary applicant must declare in the application whether or not the applicant has made a combined application with the applicant engaged in conduct (this is a contravention of the Act)

• A payment for visa conduct declaration has been incorporated in the ENS/RSMS application forms

Common eligibility criteria

• Have not in the previous 3 years making the application, conduct in a contravention of subs 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Migration Act

• No adverse information known to the department

• They are eligible any mandatory licensing or registration at the time of visa application

• Meet the Character requirements and other Public Interest Criteria (PIC) and Special Return Criteria

Temporary Residence Transition stream - additional criteria

• The nomination has been approved in the Temporary Residence Transition Stream

• The applicant has not turned 45 unless exempt

• The applicant competent in English

• If required, is to perform skills necessary to the nominated occupation

• The health requirement is met

Employer-Sponsored Permanent Residence Program can be nominated by:

• an individual;

• a partnership;

• a body politic (Commonwealth and state/territory government departments and agencies, statutory authorities established under Commonwealth or state/territory legislation and other quasi-government organisations);

• a body corporate (companies incorporated under the Corporations Act 2001 (Cth) and associations incorporated under relevant state/territory legislation); or

• an unincorporated association.

Business entities may operate under a range of organizational or business structures including:

• sole trader;

• partnership;

• proprietary company;

• public company;

• government department;

• statutory authority; and

• not-for-profit organisations.

Active and lawful operation of business

• for an Australian Business Number (ABN);

• for Australian Company Number (ACN) or Australian Registered Body Number (ARBN) with the Australian Securities and Investment Commission (ASIC); and 

• of the business (or trading) name.

Salary related

• applicants meet salary-related criteria

• subreg 2.72(15) and (16), which relate to meeting the Annual Market Salary Rate (AMSR) and Temporary Skilled Migration Income Threshold (TSMIT) in the TSS visa program.

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Associated entity:

• the associate and the principal are related bodies corporate (that is one is a subsidiary of another or they are both subsidiaries of the same company);

• the principal controls the associate;

• the associate controls the principal, and the operations, resources or affairs of the principal are material to the associate;

• the associate has a qualifying investment in the principal, significant influence over the principal, and the interest is material to the associate; or

• an entity (the “third entity”) controls both the principal and the associate, and the operations, resources or affairs of the principal and the associate are both material to the third entity.

Skilling Australians Fund levy

• for ENS nominations lodge after 12 August 2018, the nominator must pay the applicable nomination training contribution charge (SAF) at the time of lodgement

• the nomination training contribution charge replaces requirements of:

  • the equivalent of at least 2% of their business’ payroll in contributions to an industry training fund (training benchmark A); or

  • the equivalent of at least 1% of their business’ payroll on the training of Australians (training benchmark B).

• the payment of the nomination training contribution charge offsets SAF

Adverse information

• immigration;

• discrimination;

• industrial relations;

• occupational health and safety; and

• taxation.

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