Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part I

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Your Full Guide to the Employer Nomination Scheme (ENS) visa (Subclass 186): Part I

 

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Not able to find a visa pathway through an independent visa or family visa? You might want to take a look at the Employer Nomination Scheme (ENS) visa (subclass 186), a permanent resident visa that is available through employer sponsorship. Here is our full guide, which will be broken down into 3 separate parts being:

  1. Temporary Residence Transition stream ENS 186 visa requirements (you are here)
  2. Direct Entry stream ENS 186 visa requirements
  3. Requirements for all ENS 186 visa applicants:
    1. Genuine need requirement
    2. Caveats
    3. Skilling Australians Fund (SAF)
    4. Annual Market Salary Rate (ASMR) 
    5. Adverse information

Even if you are sure that you will be a TRT stream visa applicant, do not stop following us as the release of the final article in this series applies to all ENS 186 visa applicants regardless of the stream applied to.

An introduction to the three streams 

There are three ways that you may go about obtaining the ENS 186 visa, either via the Temporary Residence Transition (TRT) stream, the Direct Entry (DE) stream or the Labour Agreement stream. As you may be able to tell through the name, the DE stream is a quicker way to obtain the ENS 186 visa. The requirements are naturally relatively more difficult.

The Labour Agreement stream is available only under very specific circumstances. Labour Agreements are special agreements that businesses may enter into if they exist in a certain location and are covered by a Designated Area Migration Agreement (DAMA). DAMAs allows these businesses to access certain concessions on the TSS 482 visa that are not usually available. As such, the Labour Agreement stream is not as accessible unless you fall under those specific circumstances and we will not be discussing the Labour Agreement stream in this write up.

Read: Labour Agreement TSS 482 Visa: Northern Territory – Visa Applicants

Read: Labour Agreement TSS 482 Visa: Northern Territory – Businesses

Read: South Australia DAMA: Requirements

More about the TSS 482 visa

The TSS 482 visa which came into effect on 18 April 2018, replaces the older Temporary Work (Skilled) visa (subclass 457). The TSS 482 visa requirements are similar to the 457 visa, but due numerous incidences of applicants attempting to cheat the system, those requirements have been made more restrictive. We have covered the TSS 482 visa in great detail the previous articles as linked below.

Read: The Temporary Skill Shortage (TSS) visa (subclass 482) – Part I

Read: The Temporary Skill Shortage (TSS) visa (subclass 482) – Part II

Only TSS 482 visa holders whose nominated occupations fall under the Medium to Long Term Strategic Skills List (MLTSSL) are eligible for the TRT stream ENS 186 visa.

The TRT stream 

The TRT stream requires that the applicant:

  • Meets the age requirement
  • Is a holder of the TSS 482 visa, 457 visa (closed for applications), or Bridging Visa A or B that was granted on the expiry of the TSS 482 or 457 visa
  • Is nominated for sponsorship by that same employer (as for the TSS 482 or 457 visa) for the ENS 186 visa for a position
  • Is nominated for the same role or one that is closely related to the occupation granted for the TSS 482 or 457 visa
  • Meets the work experience requirements
  • Holds any licence, registration or membership that is required to perform that position, if applicable 
  • Meets the English requirements
  • Meets health and character requirements

Age requirement

The applicant must be under the age of 45 years at the time of application for the ENS 186 visa if that applicant is a TSS 482 visa holder. Otherwise, if a 457 visa holder, the applicant must be under the age of 50 years at the time of application. Exemptions exist for certain occupations:

Exemptions are available for applicants with one of the nominated occupations listed:

  • Researchers, scientists and technical specialists
  • Senior academics
  • Medical practitioners in regional Australia
  • A TSS visa holder who meets the High Income Threshold 

Researchers, scientists and technical specialists

If you are an ANZSCO skill level 1 or 2 researcher, scientist or technical specialist and your sponsoring organisation is an Australian government specific agency, you may be eligible to be exempted from the age restriction.

Examples of such occupations include chief of division, chief research scientist, corporate executive classes 1 to 3, director of institute, principal researcher and so forth. Examples of agencies include CSIRO, ANSTO, IP Australia, The Australian Institute of Marine Science and The Defence Science and Technology Organisation. Both these lists are not exhaustive.

This does not apply if the position you are being nominated for is for an Australian government agency but for the position is not a researcher, scientist or technical specialist. You are also ineligible for the exemption if the sponsoring organisation is a government subcontracted commercial body or the agency is at local government level.

 Senior academics

If you are a senior academic that has been nominated by a university in Australia for a position at Academic Level B, C, D or E as a university lecturer [242111] or faculty head [134411], you would qualify for the exemption.

  • Level B – Lecturer, Lecturer B, Lecturer 1, Research Fellow
  • Level C – Fellow, Senior Lecturer, Senior Research Fellow
  • Level D – Associate Professor, Head of Department, Principal Lecturer, Principal Research Fellow, Reader, Senior Fellow, Senior Teaching Fellow
  • Level E – Dean, Head of School, Professor, Teaching Fellow

Higher educational institutes such as TAFE are not included in this exemption, even if you have been nominated as a university lecturer or faculty head.

 Medical practitioners in regional Australia

The exemption is available if the applicant is a medical practitioner who has been working in their nominated occupation under the TSS 482 or 457 visa for the last three years before applying for the ENS 186 visa, and at least two of the three years immediately prior to application, was employed  in regional Australia

You can find areas that have been classed as regional in this legislative instrument 

High Income Threshold TSS 482 or 457 visa holder

A TSS visa holder who meets the High Income Threshold person holding the TSS 482 or 457 visa who has, in the three years prior to the ENS 186 application, worked in the same position with the same employer for which their visa was granted, and whose annual income in each year in the three years was at least equivalent to the High Income Threshold would be eligible for the age exemption. 

Read: High Income Threshold for each year

 Employer requirements

If the applicant has not worked for any other organisation or entity at any stage during the three year period then this requirement is considered to be met.

There are situations there this requirement may be met where the applicant has worked under a different entity during the three year period. The following are examples:

  • The sponsor has been only sponsor for the applicant but the applicant has worker for both the sponsor and its associated entity, or only for the associated entity of the sponsor. Time under associated entities would be counted but it must be ascertained that the sponsor and entities are associated.
  • The sponsor has undergone a change in business structure, or experienced a takeover, sale or closure and has changed their ABN/ACN/ name which required an application for new sponsorship approval, but the employer is still the same employer (same business name and/or operations), the nominated position is still the same
  • The sponsor was an Overseas Business Sponsor (OBS) who subsequently established an Australian entity and become an Australian Business Sponsor (ABS)

 Employment under a different employer

If the sponsor was not the sole sponsor for the applicant and the previous employers have no relation to the current sponsor, the work that was undertaken with previous employers cannot be counted towards the three year period.

Nominated for the same or closely related position

The occupation must also be closely related to the occupation for which they were nominated for your TSS 482 or 457 visa. The Department of Home Affairs (DOHA) will consider the following when assessing if the applicant has stayed in the same role for the relevant period:

  • Employer
  • Location of the position
  • Reporting lines
  • Salary
  • Position description
  • Duties performed

Often, closely related occupations would be considered as occupations that fall under the same ANZSCO occupation group.

If you look at your nominated occupation on the occupation list, you will notice that it has an ANZSCO number attached to it. The first 4 digits in that code is the code for the occupation group.

Read: The AILS Complete Occupation List Guide

This fantastic occupation list compilation allows you to see, according to occupation, which visas are available to that occupation, the ANZSCO code, assessing authorities where applicable, caveats that apply and if a skills assessment is required for that occupation if you were to be applying for the Regional Skilled Migration Scheme (RSMS) visa (subclass 187).

In the above example, the occupation group is [2211] Accountants. If you were nominated as an [221111] Accountant (General) for your TSS 482 or 457 visa but you are being nominated as a [221112] Management Accountant or [221113] Taxation Accountant for your ENS 186 visa, this is considered to be closely related.

 Exemptions for certain occupations

If the applicant’s occupation is in this legislative instrument, the applicant will still need to meet the total of three years in the last four years requirement, but are not required to be in the same nominated position, only the same nominated occupation. In other words, they are able to work in the same occupation in different companies. This largely applies to occupations such as senior executives and medical practitioners.

Work experience requirement

Time on TSS 482 or 457 visa prior to application

The TSS 482 visa must have been held for at least three years in the last four years before the lodging of the ENS application. The applicant is not required to have held the same TSS 482 visa through those three years. This accounts for reasons such as a lapse in visa validity or necessary changes from the 457 to a TSS visa with the same sponsor.

If the applicant has held their TSS 482 visa for the three years but this period was broken by the applicant being on a bridging visa whilst waiting for a further TSS 482 visa to be processed, time on the bridging visa where work was still undertaken under the same position and under the same employer can count towards the three years.

If you held a 457 visa before 18 April 2017 or applied for one before 18 April 2017 that was granted after the date, you would only have to fulfil two years of full time work in the last three years as per the older regulations. 

If you were applied for a 457 visa after 18 April 2017 you would have to complete three years as per the TSS 482 visa requirement above.

When calculating time, absence from work in the form or annual leave, paid maternity leave, paid sick leave would count toward the requirement. Unpaid leave is not included in the calculation.

Exemptions for certain occupations

If the applicant’s occupation is in this legislative instrument, the applicant will still need to meet the total of three years in the last four years requirement, but are not required to be in the same nominated position, only the same nominated occupation. In other words, they are able to work in the same occupation in different companies. This largely applies to occupations such as senior executives and medical practitioners.

Employed on a full time basis and in Australia

For the purposes of fulfiling this requirement, full time work is taken to be no less than 35 hours a week. Where workers who accumulate work hours in bulk and take holidays in bulk such as for industries using fly-in-fly-out workers, hours can be averaged out over a period of time to meet the requirements.

Overseas work must be assessed on a case by case basis. Time spent overseas:

  • That is on training may only be considered if the training was arranged by the sponsor, all costs were paid for by the sponsor and the applicant had received full pay for the duration of the training
  • That is for performing work on behalf of the sponsor may be considered if:
    • The position description specifies the possibility of incidental overseas work
    • The nature of the role may require such work from time to time
    • The time spent overseas is not substantial and overseas work is not the main focus of the responsibilities under the nominated position
    • The salary of the applicant was paid by the sponsor during the period of overseas work

 Skills assessment

Whilst not previously required for the TRT stream, applicants may be required on DOHA discretion, to provide a positive skills assessment.

English language requirement

The applicant must have at least a competent level of English. An exemption applies if the applicant has completed at least 5 years of full time study in a secondary or higher education institution where all tuition was delivered in English. 

Read: English proficiency tests 

Getting there

The TSS 482 visa application takes between 29 days to 51 days (current times provided on the DOHA website) for up to 90% of applications to be processed. This is a guideline and is subject to how well put together your application is and other situational factors. 

You would then spend at least three years on the TSS 482 visa before you can apply for the TRT ENS visa, which takes between 9 and 13 months for up to 90% of applications to be processed. This is again a ballpark time period. This means at its quickest, you would likely be looking at spending roughly four years to attain this visa. 

The DE stream is a faster route to your permanent ENS 186 visa, which we will discuss in part II of this guide, to be released very soon.

Do you want to learn more about how to get from the TSS 482 visa to your permanent ENS 186 visa? Australia Immigration Law Services specialists have vast experience in mapping out visa pathways and have helped many clients from stepping foot in Australia on to becoming permanent residents and citizens of Australia. Contact us today to start your future in Australia. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.