Direct Entry Employer Nomination Scheme 186 Visa

There are a few pathways to permanent residency via employer sponsorship. The path most tread is completing at least 2 years on a Temporary Work (Skilled) visa (subclass 457) with the sponsoring employer before applying for either the permanent Employer Nomination Scheme (ENS) visa (subclass 186) or the Regional Sponsored Migration Scheme (RSMS) visa (Subclass 187) . This route is classed as the Temporary Residence Transition (TRT) stream.

Read: From a 457 visa to permanent residency

But there is another option. The direct entry stream on the ENS 186 visa does not require you to do 2 years to get permanent residency – you won’t even need to have set foot in Australia before.Of course the regulations for the direct entry stream are more stringent, but if you are eligible and your employer is agreeable, it will help you skip the pain of the 457 visa. As we’ve written, the Department of Immigration and Border Protection (DIBP) has been looking at the 457 quite critically this year.

• Under the age of 50
• Competent English language ability level (this is higher that the required vocational English competency level for the Temporary Residence Transition (TRT) stream ENS applicants)
• Nominated occupation is on the Consolidated Sponsored Occupation List (CSOL)
• Suitable skills assessment
• Three years relevant skilled work experience
• Hold any required licenses or registrations to perform in their occupation

The direct entry ENS application involves making a nomination application and a visa application. Both can be lodged within a single day, but the nomination application will be processed first, as it is a requirement for the visa application to have an approved nomination.

Nomination

Genuine need

It is expected that a business seeking to sponsor an employee should have genuine need for the position and should be able to demonstrate so. Information that can be provided to support this includes growth or diversification of the company, or if the position recently became vacant, or if current staff members have had to be putting in longer hours at work. Business plans, contracts associated with expansion, positive bank statements, organisational charts, previous employment documents and so forth are all materials that may be used to support need for the position.

Should there be any evidence that conflicts with the business needing the position, such as retrenchment, lowered profits or conflicting positions e.g. two managers for a small staff size, the DIBP will be sure to inquire deeper.

Occupation

The position must be one that is on the CSOL, as these occupations are occupations that have been officially identified to suffer from a lack of labour supply in Australia. As you are aware, the employer sponsored visa programmes seek only to bridge gaps in the labour market for the health of the economy.

The position must be full time (minimum of 35 hours a week), available for at least 2 years, and the employment contract cannot exclude the possibility of an extension. The roles and responsibilities and associated skill level for the position must correspond to a major degree to that which is detailed for that nominated occupation in ANZSCO. The ANZSCO defined skill level (expected qualification levels and/or work experience) and standard tasks are there as a guide to ensure that entrants are performing in the roles for which there is a supply for, and not performing a different role that could be easily filled by an Australian worker, simply under the guise of a different job title.

Market salary rate

Terms and conditions of employment must be comparable to that which would be received by an Australian citizen or permanent resident working in the same role and same location as the nominee. This includes remuneration. The nominee must be offered a salary that is comparable what an Australian worker would receive. The DIBP terms this market salary rate.

Training requirements

Start up businesses are not required to meet the training requirements but will need to provide an auditable plan for doing so. Start up businesses are business that have been actively operating for under 12 months. Active operation is taken to start from the point the first service was provided to a consumer. Businesses that have been operating longer must meet training benchmarks A or B.

Meeting these training benchmarks are the same as that in a Standard Business Sponsorship (SBS) application for a 457 visa. Read about fulfilling the training requirements in more detail here

Visa Application

Skills assessment

It is a must for ENS applicants to obtain a suitable skills assessment. The assessment must be obtained prior to the lodgement date and must be dated within 3 years of the lodgement for an ENS visa. However it is important to note that certain assessing authorities may provide skills assessments that are valid for a shorter or longer period. In such a case, the shorter validity will take be considered. For example, ACS skills assessments are only valid for 2 years. The DIBP will not accept a skills assessment that is dated over 2 years ago, even if it still within 3 years of the date of lodgement. The skills assessment also cannot be one that has been for the purpose of a Graduate 485 visa as those are provisional assessments.

The skills assessment validates if the applicant meets the skill level that has been identified for the nominated occupation in ANZSCO. For example, a skill level 1 occupation requires an Australian standard bachelor’s degree in a field that is highly relevant or 5 years of relevant work experience at the required skill level (in a job whose tasks are greatly similar to those outlined in ANZSCO).

If the nominated occupation is one that requires that the applicant has registration or a licence to perform their job, and the registration or licensing organisation is the same as the assessing authority for their skills assessment, registration or licensing can be taken to be sufficient evidence to their being deemed skilled. If the registration or licensing authority is not the same, the applicant will still need to obtain a skills assessment separately.

Read: Skills assessments for the ENS 186 visa

Certain trade occupations require a practical assessment. These skills assessments are managed by Trades Recognition Australia (TRA). TRA also runs the Offshore Skills Assessment Program (OSAP) to help offshore applicants gain skills assessments. Overseas assessments are conducted by TRA registered training organisations (RTOS). Learn more about the OSAP here.

A note for those in electrical and metal trades that are recognised by the Australian Recognised Trade Certificate (ARTC) program. ARTCs are not acceptable in place of a skills assessment by TRA.

3 years work experience

These 3 years do not have to be continuous but work must have been paid and full time (at least 35 hours a week). Should you have engaged in part time work, it will be prorated based on the hours of work a week relative to 35 hours a week. Paid leave is counted in these 3 years but other gaps such as unemployment between jobs and extended leave without pay cannot be considered to count towards the 3 years. There is no geographical restrictions on where might have attained your experience.

The DIBP will also assess if your experience has been at the required skill level in tasks similar to those outlined in ANZSCO. This means that training cannot be considered to meet the requirements. Supporting evidence includes payslips, tax documents, work reference letters, CVs and so on. Should there be any doubts that arise, the DIBP may attempt to establish the validity of your claims through an appropriate overseas organisation.

Specific occupations

Chefs and cooks are a common occupation that the DIBP takes a closer look at when assessing the position as well as the skills and experience of the nominee. Both the sponsoring business will be examined and well as the nominee’s previous employers to see if the skill level required and the skill level of the nominee is in alignment. The DIBP will take into account other factors of the business outside job descriptors such as size and style of the restaurant.

There are many other occupations where the nature of the role sits outside the standard job, and slightly different rules must apply. Example occupations include medical practitioners, academic and scientific research positions, retail managers, ministers of religion, child care group leaders, and registered nurses. If you are in any of the above professions, regulations would apply slightly differently to you and we highly recommend that you speak to an experience migration agent to ensure you are eligibile.

Direct entry ENS applications are often for highly skilled workers that may not meet certain requirements, such as age or English level ability, or may be in medical professions that demand many years of training, and there are exemptions that apply to all of the above. Look out for our next article that discusses this!

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