10 October 2018
Q: What is this visa for?
A: Employers seeking to fill a full-time position within their organization on a permanent basis can nominate skilled individuals from overseas, or workers currently in Australia on a temporary basis, for permanent residence under the Employer Nomination Scheme (ENS), for a subclass 186 visa.
Q: Is this for Permanent Residency?
A: Yes, but the applicant needs to be eligible for one of the three streams:
- Temporary residence transition stream (TRT) – streamlined pathway for eligible subclass 457 or 482 visa holders transitioning to permanent residence.
- Direct Entry stream (DE) – general pathway for individuals in Australia who do not quality to apply under the TRT stream or who are applying from overseas
- Agreement stream – pathway for applicants sponsored by employers that have entered into a labor agreement with the Department of Home Affairs to sponsor skilled workers for permanent residence. Labor agreements would generally be negotiated, where the nominated occupation is not included on the list of eligible occupations for the Employer Nomination Scheme programs, or where further exemptions are required in relation to English language or the skill of the applicants.
Q: What is the processing time for subclass 186?
A: It depends on the stream.
- Temporary Residence Transition Stream: 13 to 14 months
- Direct Entry Stream: 13 to 19 months
- Agreement Stream: unavailable due to low volume of applications
Q: What are the fees and charges?
A:
- Nomination fees (all streams) – $540
- Visa Application fees (all streams) – $3755 base application charge; $1875 for applicants 18 and over; $940 for applicants under 18
Q: What are the processes in applying for ENS?
A: The application process is divided into two stages:
- Nomination stage – relates to the employer and the position being nominated
- Visa application stage – relates to the primary applicant for a visa and any family members included in the visa application.
In the Agreement stream, negotiating and finalizing the labor agreement between an employer and the Department replaces the nomination stage.
Q: What are the shared criteria among TRT and DE streams?
A: Each visa stream is subject to different eligibility requirements at the nomination and visa application stages. There are also certain common criteria which apply to both visa programs. As part of the nomination criteria, an employer must demonstrate that:
- It is actively and lawfully operating a business in Australia;
- The offer of employment is for a full-time position for at least 2 years and without express exclusion of the possibility of extending the period of employment. A contract that provides that the position is permanent and on-going is sufficient to satisfy this criterion;
- The nominated position is listed on the Medium and Long-term Strategic Skills List (MLTSSL);
- The salary-related criteria are met
- No adverse information is known about the business or a person associated with the business or it is reasonable to disregard any adverse information
- It has a record of satisfactory compliance with commonwealth and state/territory laws relating to workplace relations.
Q: What are the additional criteria for TRT stream?
A:
- The nominee needs to be a primary subclass 457 or 482 visa holder in the medium-term stream and is nominated for a position that has the same ANZSCO 4-digit occupation group as the occupation that was nominated for the subclass 457 or subclass 482 (medium-term) visa.
- The nominee needs to be employed full-time in Australia in the position while holding subclass 457 or 482 for at least 3 years in the previous 4 years excluding unpaid leave. If the transitional arrangement applies, the skilled worker needs to be employed full-time for two out of previous three years.
- There is a genuine need for the nominator to employ the person as a paid employee
- The nominating entity needs to meet the training requirements for business sponsorship and compiled with the sponsorship obligations relating to training, unless it is reasonable to disregard this requirement. For the nomination application lodged on or after 12 August 2018, the employer needs to pay for Skilling Australians Fund (SAF) levy.
Q: What is the transitional arrangements?
A: Transitional arrangements apply to ENS applicants who held a valid subclass 457 visa on 18 April 2017 or lodged a subclass 457 visa on or before 18 April 2017 which was subsequently granted. The transitional arrangements that apply are as follows:
- The person needs to have been employed full-time in Australia in their nomination occupation for a period of at least 2 years in the 3 year period to the application being made (rather than 3 years in the last 4 years)
- The person can apply in their nominated occupation regardless of whether it is on the MLTSSOL at the time the ENS application is lodged.
- The person will not need to be 45 years old but will still need to be under 50 years old at the time of application.
In order to avail themselves of these transitional provisions, the person will need to apply for ENS before 18 March 2022 and hold a subclass 458 or 482 visa at the time of ENS application. Importantly, the transitional arrangements will expire on 18 March 2022.
Q: What are the additional criteria for Direct Entry Stream?
A:
- There is a need for paid employee in a position under the nominator’s direct control (on-hire positions are excluded);
- The business in which the position is located is directly operated by the nominator;
- The nominated occupation appears on the current occupation list and must be performed in Australia
- The training levy for the SAF is met.
Q: What is the Skilling Australian Funds (SAF)?
A: Please refer to our most recent article.
Q: What are the criteria to be met in making a valid visa application?
A:
- ENS applications must be lodged online via the Department’s e-lodgment system within 6 months of the date the nomination was approved.
- The nomination application must be lodged before the visa application.
- The applicant may be in or outside Australia at the time of application. If in Australia, the applicant must hold a substantive visa or a Bridging visa A, B or C.
- The primary applicant must declare in the application (the primary application) whether or not either the applicant or any person who has made a combined application with the applicant has engaged in conduct, in relation to the primary application or the combined application, that constitutes a contravention of subs 245AS(1) of the Act.
- If the applicant is in Australia, he or she may apply for ENS while holding a Bridging Visa A, B or C without a need to satisfy the Schedule 3 criteria.
Q: What are the common eligibility criteria at the time of application?
A:
- There is no adverse information known to the Department about the person who made the nomination or a person associated with that person or it is reasonable to disregard any adverse information known to Department about the person who made the nomination or a person associated with that person;
- They are eligible for, or hold, any relevant mandatory licensing or registration at the time of an application for a visa (for more information on these requirements see Licensing/registration below); and
- They meet the Character requirements and other Public Interest Criteria (PIC) and Special Return Criteria (SRC).
Q: What are the additional criteria for TRT stream?
A:
- The nomination has been approved in the TRT stream;
- The applicant has not turned 45, unless exempt;
- The applicant has competent English unless exempt
- If required by the Minister, the applicant can demonstrate that he/she has the skills necessary to perform the tasks of the nominated occupation in the manner specified by the Minister; and
- The health requirement is met (PIC 4007).
Q: What are the additional criteria for DE stream?
A:
- The nomination has been approved in the DE stream;
- The applicant has not turned 45, unless exempt. Note that a higher age limit of 50 applies to applications to lodged prior to 1 July 2017;
- The applicant has competent English unless exempt
- The applicant’s skills have been assessed by the specified authority as suitable for the occupation and the applicant has been employed in the occupation for at least 3 years, unless exempt.
- The health requirement is met (PIC 4005) — no health waiver available.
Q: What are the additional criteria for Agreement Stream?
A:
- The nomination has been approved in the Agreement stream;
- The applicant has not turned 45 at the time of application unless it has been agreed in the labour agreement that persons who have turned 45 may be employed;
- The market salary rate requirements have been met;
- The applicant has qualifications, experience and other attributes that are suitable for the position;
- Health criterion (PIC 4005) is met — no health waiver available; and
- All other requirements of the labour agreement have been met.
Q: What are the English language requirements?
A:
| Direct Entry Stream and Temporary Residence Transitional Stream (for applications lodged on or after 1 July 2017) | Agreement Stream |
| 6 in each of the 4 test components | The required English language ability will be specified in the Labor Agreement |
| Direct Entry Stream and Temporary Residence Transitional Stream (for applications lodged on or after 1 July 2017) | Agreement Stream |
| 12 (Listening), 13 (Reading), 21 (Writing), 18 (speaking) | The required English language ability will be specified in the Labor Agreement |
| Direct Entry Stream and Temporary Residence Transitional Stream (for applications lodged on or after 1 July 2017) | Agreement Stream |
| 50 in each of the 4 test components | The required English language ability will be specified in the Labor Agreement |
| Direct Entry Stream and Temporary Residence Transitional Stream (for applications lodged on or after 1 July 2017) | Agreement Stream |
| 169 in each of the 4 test components | The required English language ability will be specified in the Labor Agreement |
| Direct Entry Stream and Temporary Residence Transitional Stream (for applications lodged on or after 1 July 2017) | Agreement Stream |
| B in each of the 4 test components | The required English language ability will be specified in the Labor Agreement |
The test must have been taken in the 3 years before the application is lodged. Regardless of whether a primary applicant is exempt from the English language requirement, all adult applicants included in the application must still demonstrate that they have functional English language skills, or pay the English language education charge. “Functional” English can be demonstrated either by obtaining an average score of 4.5 in an IELTS test, 32 in a TOEFL test, 30 in the PTE Academic test, 147 in the Cambridge English Advanced test, by holding one of the above English-speaking passports, or producing other evidence of English language ability such as being taught in English.
Q: What are the exemptions for English, age and skills?
A:
- Native English speakers — passport holders of USA, UK, Ireland, Canada or New Zealand.
- For TRT stream only, at least 5 years of full-time study in secondary and/or higher education institution where all tuition was delivered in English.
For TRT stream only:
- The individual has worked for the nominating employer for last 3 years on a subclass 457 or subclass 482 visa and has been earning at least the high income threshold under the Fair Work Act 2009 (Cth) for each of those years ($142,000 for 2017/18). Medical Practitioners (ANZSCO Minor Group 253) who have been working as medical practitioner for at least 3 years as a holder of subclass 457 or subclass 482 visa, of which 2 out of those 3 years, they have been employed by the nominating employer in regional Australia. The nominated position is an exempt occupation:
- Researchers, scientists and technical specialists at ANZSCO skill levels 1 and 2 nominated by Australian government agencies such as the Commonwealth Scientific and Industrial Research Organisation (CSIRO) or the Australian Nuclear Science and Technology Organisation (ANSTO).
- Senior academics nominated by universities in Australia. A “senior academic” is a person who will be employed at an Academic Level of B, C, D or E as a University Lecturer or Faculty Head.
- For DE stream only:
- Subclass 444 (Special Category visa for New Zealand citizens) or 461 (New Zealand Citizen Family Relationship) visa holders working with their nominating employer in their nominated occupation for 2 years in the last 3 years before the visa application.
- The nominated position is an exempt occupation:
- Researchers, scientists and technical specialists at ANZSCO skill levels 1 and 2 nominated by Australian scientific government agencies such as the Commonwealth Scientific and Industrial Research Organisation (CSIRO) or the Australian Nuclear Science and Technology Organisation (ANSTO).
- Senior academics nominated by universities in Australia. A “senior academic” is a person who will be employed at an Academic Level of B, C, D or E as a University Lecturer or Faculty Head.
- Subclass 444 (Special Category visa for New Zealand citizens) or 461 (New Zealand Citizen Family Relationship) visa holders working with their nominating employer in their nominated occupation for 2 years in the last 3 years before the visa application.