Employer Nomination Scheme Subclass 186 Visas

ENS Stages

There are two stages to the ENS subclass 186 application:

• Nomination: involves review of the business' operations as well as the position offered to the employee. Employers will also be required to contribute to the Skilling Australians Fund training levy
• Visa Application: there are three possible pathways which may require a skills assessment, English language testing and health and police checks

Application Pathways

There are three possible application pathways for an ENS visa:

1. Temporary Residence Transition: In this case no skills assessment is required however, unless Grandfathering Provisions apply (see below), applicants need to be under 45 years of age at the time of lodgement, have worked with the nominating employer on a 457 or TSS visa for at least 3 years, nominate an occupation on the Medium and Long-term Strategic Skills List (MLTSSL) and meet Competent English
2. Direct Entry Stream: Most of the time, applicants will need to provide a formal skills assessment in their occupation and show that they have worked in their occupation for three years. As above, applicants must also be under the age of 45 years, be nominating an occupation on the Short-Term Skilled Occupation List (STSOL) and meet competent English
3. Agreement Stream: where the employer has a Labour Agreement In some instances exemptions may be applicable to the above requirements.

457 visa holders

The Department of Home Affairs has announced that 457 applicants and visa holders (as at 18 April 2017) will not need to meet all of the new requirements and will instead be able to preserve their eligibility for ENS and RSMS through the Temporary Residence Transition stream.

To be eligible for these transitional arrangements, applicants must have either:

• Held a 457 visa as at 18 April 2017, or
• Had a pending 457 visa application as at 18 April 2017, which resulted in the approval of a 457 or TSS visa.

Applicants who are eligible to apply via these provisions will not need to meet the new requirements in relation to:

• Occupation: applicants may qualify even if their occupation is not on the MLTSSL or has since been removed from the occupations list altogether
• Age: applicants may still qualify if they are aged between 45 and 49 years of age. In some instances, further exemptions may apply to those aged above 49 years
• Work experience on the 457 visa: applicants may qualify once they have worked in their nominated occupation for their nominating employer for at least 2 years whilst holding the 457 visa

Common Issues with ENS Visas

ENS visas require a significantly higher level of documentation than a 457/TSS visa. Difficulties which can be encountered in applying for ENS visas include

• Obtaining skills assessments - each skills assessing authority has different criteria, but in some circumstances this requirement can be avoided
• Demonstrating that the employer meets the "satisfactory record of training" requirement
• Showing exceptional circumstances where visa applicants would not meet the usual requirements for Age, English language ability and skill level

Regional Sponsored Migration Scheme (RSMS) Subclass 187 Visas

RSMS Application Stages

There are in general three stages to an RSMS application:

1. RCB Certification: the Regional Certifying Body will ensure that the position is genuine and in many cases require that the position has been advertised
2. Nomination: review of the business and position by the Department of Home Affairs
3. Visa application: there are three pathways, and generally the skill level is lower than for the ENS program. Applicants must be aged under 50, unless exceptional circumstances apply.

RSMS Regional Areas

In order to be granted an RSMS visa, the employee must be offered a position in a "regional area". The regional areas are specified by postcode by the Department of Home Affairs.

Application Pathways

There are three possible application pathways for an RSMS visa:

• Temporary Residence Transition: where applicants have worked with the employer on a 457 visa for the last 2 years. In this case, no RCB certification is required.
• Direct Entry Stream: the position will need to be certified by an RCB. Applicants in trade occupations may require a formal skills assessment.
• Agreement Stream: where the employer has a Labour Agreement

Benefits of Applying for RSMS over ENS visa

The requirements for RSMS are more straightforward than ENS in a number of important ways:

• The employer does not need to meet the training requirement
• The visa applicant requires a lower level of skill for the Direct Entry Stream - most applicants do not require a skills assessment, and there is no minimum work experience requirement
• It is possible to apply for RSMS in a wider range of occupations than ENS
• RSMS is the highest priority visa in the skilled migration stream

Common Issues with RSMS Visas

The main difficulties employers face when obtaining RSMS visas are as follows:

• Identifying the correct eligibility stream
• Obtaining an RCB approval - each RCB has different criteria and an approval may need to be individually negotiated with the RCB
• Showing exceptional circumstances where visa applicants would not meet the usual requirements for Age, English language ability and skill level