ENS Visa (Employer Nomination Scheme) (186)

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Permanent Employer Sponsored Visa Program

The permanent employer sponsored visa program allows employers to sponsor highly skilled foreign

workers who are currently in Australia on a temporary basis or located outside of Australia for permanent residence to fill vacancies in their business.

There are 2 employer sponsored visa categories:

• The Employer Nomination (Class EN) Employer Nomination Scheme (Subclass 186)

Skilled Employer Sponsored Regional (Provisional) visa (Subclass 494).

The 187 RSMS visa is closed to new application and has been replaced by the Subclass 494 Skilled Employer Sponsored (Regional).

What the visa lets you do:

This is a permanent residence visa. It lets you and any family members who have also been granted this visa to:

  • stay in Australia indefinitely
  • work and study in Australia
  • enrol in  Medicare, Australia’s scheme for health-related care and expenses
  • apply for Australian citizenship (if you are eligible)
  • sponsor eligible relatives for permanent residence
  • travel to and from Australia for five years from the date the visa is granted (after that time, you will need a resident return visa or another visa to return to Australia).

Your obligations:

You and your family must comply with all visa conditions and Australian laws.

The department may cancel this visa if you do not make a genuine effort to begin employment with your employer within six months of:

  • Your first entry to Australia if you were granted this visa while you were outside of Australia: or
  • The visa being granted if you were granted this visa while you were in Australia.

We might also seek to cancel this visa if you begin employment but do not remain in the position for the full two years. If this happens, you will have a chance to explain, in writing, why your visa should not be cancelled.

Overview

The permanent employer sponsored program:

• Allows Australian employers to satisfy genuine skills shortages by recruiting skilled workers

• Enhances Australia’s ability to compete globally

• Ensures integrity of the skilled migration program

• Eenerally ensures there is a net benefit to Australia.

Each visa category is made up of 3 streams:

• The Direct Entry stream is for applicants who are untested in the Australian labour market and have  not held a subclass 457 visa for at least the last 2 years or who are applying directly  from outside Australia.

• The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for their employer for at least the last 2 years in the nominated occupation and the employer wants to offer them a permanent position in that same occupation.

• The Agreement stream is for applicants who are being sponsored by an employer through a tailored and negotiated labour agreement or regional migration agreement.

Employer Nomination Scheme Subclass 186 (ENS)

Employer Nomination Scheme (ENS) visas, or subclass 186 visas, are permanent residency visas for skilled workers. They are available both to applicants who are already living and working in Australia as temporary residents, and to those living outside Australia. To be eligible for this visa, a skilled individual must be nominated by an Australian employer.

WHAT DOES THIS VISA ALLOW YOU TO DO?

This visa provides the holder with Australian permanent residency with no conditions. Dependent family members may be included. The holder can live and work wherever they like in Australia. Although the visa is granted based on the holder being skilled in a specific occupation, once granted, the visa doesn’t require you to seek or maintain employment in this occupation.

WHO CAN APPLY FOR THE SUBCLASS 186 VISA?

The subclass 186 visa has two streams, the Temporary Residence Transition (TRT) Stream and the Direct Entry (DE) Stream. Each stream has different criteria.

To apply in the TRT stream, you must be the holder of a subclass 457 visa, a 482 visa, or a bridging visa granted in association with one of these subclasses.

To apply in the DE stream, you may be in or outside of Australia.

HOW DO I QUALIFY FOR A SUBCLASS 186 VISA?

The Temporary Residence Transition Stream (TRTS)

There are two cohorts of applicants who may apply through the TRT stream; those who had applied for or held a 457 visa before 18 April 2017, and those who applied for a 457 or 482 visa after 18 April 2017.

If your 457 visa was applied for pre 18 April 2017 and subsequently granted, you can apply for the 186 visa once you have worked with your sponsor for a minimum of two years whilst the holder of this visa, on the basis of grandfathering arrangements set out by the Department of Home Affairs. In this situation, you must be under 50 years of age.

If your 457/482 visa was granted after 18 April 2017, you must have an occupation on the MLTSSL, and can then apply for the 186 visa once you have worked for your sponsor for three years whilst the holder of this visa. This cohort of applicants cannot apply for the 186 visa if they have an occupation on the STSOL. This cohort of applicants cannot apply for the 186 visa if they have an occupation on the STSOL, unless they are located in a regional area, and have worked for the nominating employer for three years whilst the holder of a 457 or 482 visa. Applicants in this situation must be under 45 years of age.

All applicants in this stream must demonstrate that they have earned the salary nominated in their 457/482 nomination in each relevant year.

The Direct Entry Stream (DE)

Applicants in the DE stream must have an occupation on the MLTSSL and must obtain a positive skills assessment in this occupation prior to application. At least three years of employment at the skilled level is required. Applicants in the DE stream must be under 45 years of age.

HOW DO I APPLY FOR A SUBCLASS 186 VISA?

An employer nomination must be lodged on behalf of an applicant before a visa application can be made. This nomination will outline the nominated occupation, terms and conditions of employment, and the financial viability of the nominating business. Employers must also detail how the position came to be available and justify the need to nominate the applicant. The nomination must also be accompanied by the Skilling Australia Fund levy. A corresponding visa application can then be submitted.

In all cases, a competent English score (IELTS 6 or equivalent, unless exempt) is required, as well as evidence of meeting the health and character requirements.

COVID-19 CONCESSIONS FOR EMPLOYER-SPONSORED VISAS (SC457-482 AND 186-187)

The government has passed legislation that will provide concessions to COVID-19 affected subclass 457/482 and subclass 186/187 visa holders. This new concession will be in place from 24 November 2020.

Transitional arrangement for COVID-19 affected Subclass 457/482 holder

To be eligible for a subclass 186 TRT visa you must hold a subclass 457/482 and have worked for your employer for at least three years full time. However, due to COVID-19 pandemic, many businesses are adversely affected. As a result, during the pandemic, workers’ hours are reduced or been asked to take unpaid leave.

In light of the above, the government has introduced laws that allow subclass 457/482 visa holders to apply for the subclass 186 TRT despite not working full- time during the concession period. This is aligned with when the pandemic outbreak began. The start date of the concession period is 1 February 2020.

The new legislation introduces two new definitions:

Coronavirus reduced work period

This period is defined as:

  • A period that occurred during the concession period; and

  • during the period of four years immediately before the subclass 186 application is made; and

  • throughout which the person was employed in the occupation for which the subclass 457 or subsequent subclass 482 was granted, and

  • throughout which

    • the employment was on a basis other than a full-time basis, but would have been on a full-time basis were it not for COVID-19, or

    • the person was on unpaid leave from that employment because of COVID-19.

This is applicable to those who have been affected by COVID-19 and could not work full-time, i.e. working on a part-time basis or stood down.

Coronavirus unpaid leave period

This period is defined as:

  • A period that occurred during the concession period; and

  • during the period of four years immediately before the subclass 186 application is made; and

  • throughout which the person was employed in the occupation for which the subclass 457 or subsequent subclass 482 was granted and was on unpaid leave from that employment because of the COVID-19.

This amendment is applicable to applications made on or after 1 February 2020 and before 24 November 2020 and not yet decided, or applications made on or after 24 November 2020.

Higher Income Threshold and Age exemptions

If the age exemption applies to you on the basis that you are earning at the Fair Work High Income Threshold (currently $158,500) to meet the 186 visa requirements, you will continue to be eligible for the age exemption even if your earnings have dropped due to COVID-19. The Department may apply the pro-rata income threshold.

The eligibility requirement is:

At all times during the three years ending immediately before the day the visa application is made, the person was employed:

  • by the employer who made the nomination to which the visa application relates, and

  • in the nominated occupation to which the visa application relates, and

  • the person’s employment was affected by a coronavirus employment change, and

  • for each of those three years that did not include any part of the concession period, the person’s earnings for the year were equal to or greater than the high income threshold (as applying at the end of the year), and

  • for each of those three years that included any part of the concession period, the person’s earnings for the year (excluding any earnings in a week when the person’s employment was affected by a coronavirus employment change) were equal to or greater than the prorata threshold, and

  • at almost all times during those three years, the person held a subclass 457 or subclass 482 visa.

This amendment is applicable to all applications made on or after 1 February 2020 and before 24 November 2020 and not yet decided, or applications made on or after 24 November 2020.

Above are the new concessions the government has introduced to mitigate the implications of COVID-19 on work visa holders. Employer sponsored visas are complex, please book an appointment to discuss your case.

NEW PR PATHWAYS FOR ALL OCCUPATIONS ON THE STSOL LIST

18 March 2022 update: a legislative instrument has just been released outlining a pathway to permanent residency from 1st of July 2022. We will provide a further update in more detail, however if you were in Australia as the holder of TSS for 12 months from 1 February 2020 and December 2021 and you meet the requirements for Subclass 186 Employer Nomination Scheme you may have a pathway to PR.

Employers will be able to nominate short-term subclass 482 TSS visa holders in two-year occupations for Permanent residence under the 186 visa if the employee:

  1. is in Australia for at least 12 months between 1 February 2020 and 14 December 2021; and

  2. meets the general 186 visa criteria under the 186 temporary transition stream

The government has also announced the extension of the grandfathering arrangements in place for 457 visa holders who held or had applied for a subclass 457 visa as of 18 April 2017.

The Australian Government is making it easier for highly skilled migrants to remain in Australia and to continue working in critical sectors as Australia’s economic recovery continues.

  • Australia offers a permanent residency pathway to certain skilled migrants to address the skill shortage

  • Government to provide visa extensions to skilled regional (provisional visa) holders (subclass 489, 491 and 494)

  • Government announces new visa settings for temporary graduate visa holders (subclass 485)

​Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs Alex Hawke said these measures recognise the contribution of skilled migrants who remained here during the COVID-19 pandemic and encourage them to stay in Australia.

The main winners from the temporary concession, which affects primary holders of the temporary skill shortage 482 visa and holders of the now-discontinued 457 visa, will be workers employed in the health and hospitality industries as well as all occupations on the STSOL list.

The legislation to enable this is currently being developed and is expected to be introduced ‘around the middle of this year’.

These visa changes will improve access to permanent residence for:

  • Existing Temporary Skill Shortage (subclass 482) visa holders in the short-term stream

  • Legacy Temporary Work Skilled (subclass 457) visa holders who no longer meet the age requirement.

Previously, temporary skill shortage visa holders in the “short-term” stream were restricted to a two-year stay in Australia without a pathway to permanent residence (such as cooks).

The measure should provide some modest relief to employers struggling to find workers.

Job vacancies in the hospitality industry have increased by 87 per cent since the start of the pandemic, according to data from the Australian Bureau of Statistics, while openings in the healthcare industry are up by 72 per cent.

Permanent Residency Pathway for STSOL Occupations

A new pathway to permanent residency has been announced by the Australian Government for occupations on the Short Term Skilled Occupation List (STSOL). The following eligibility criteria apply:

This pathway to permanent residency for STSOL occupations commences from 1 July 2022. The eligibility criteria for this pathway have strict requirements. See below for important things to note regarding time requirements and visa types.

Must work for sponsor employer while holding 482 visa

Applicants interested in the pathway to PR for STSOL occupations must hold a TSS 482 visa while working for their sponsor employer for a minimum of 3 years. If the applicant has worked for the sponsor employer while on another visa type i.e., working holiday (subclass 417/462) or graduate visa (485), this time does not contribute to the 3-year requirement. Therefore, any time spent working for the sponsor employer that is not on a TSS 482 visa is not eligible to count towards the 3-year eligibility criteria.

Must work for sponsor employer for a minimum of 3 years

To be eligible for pathway to PR for STSOL occupations, you must work for your sponsor employer for a minimum of 3 years. The TSS 482 visa is only granted to STSOL occupations for 2 years. However, this visa type allows you to reapply if the visa is expiring and you wish to remain in Australia longer. This means that some TSS 482 visa holders may only be eligible for the 186 pathway to PR once holding their second 482 visa. This is due to the eligibility criteria that you must have worked for your sponsoring employer for at least 3 years prior to the 186-nomination application submission.

Frequently Asked Questions

It should be noted that TSS 482 visa holders cannot apply for a 3rd 482 visa while remaining onshore in Australia. Therefore, if you change nominated positions or employers this may prevent you from reaching the 3 year minimum work requirement.

The Department of Home Affairs is yet to clarify this. It should be noted that due to the strict requirement of holding a TSS 482 visa while working for the sponsor employer, it can be assumed that time worked for the employer while holding a bridging visa would not count towards the work requirement.

The Government will also extend visas for skilled regional (provisional visa) holders (subclass 489, 491 and 494) in recognition that this cohort has been adversely affected by COVID-19 related travel restrictions.​

“Current and expired skilled regional provisional visas will be extended, providing additional time to meet regional work requirements for permanent residence,” the immigration minister said.

“There are currently around 9,000 skilled regional provisional visa holders overseas. These visa holders can enter Australia from 1 December 2021, and they will also be eligible for an extension of their visa,” he said.

In recognition of ongoing border arrangements, the Government will also extend by a further six-months Visa Application Charge waivers for new Visitor visa applicants overseas where their visa expired, or will expire, between 1 January 2022 and 30 June 2022.

“This measure will support the tourism industry by welcoming back visitors once it is safe to do so,” Minister Hawke said.

In addition, the government has also announced a raft of visa changes to support hundreds of Temporary Graduate visa holders (subclass 485 stranded overseas, including a provision of replacement visas for those whose visas have expired and a year-long extension on the length of their stay.

Education Minister Alan Tudge and Immigration Minister Alex Hawke have agreed on changes that will allow 30,000 students whose visas have expired after February 1, 2020 to reapply for a new 485 visa of the same duration as their original one.

Graduates of masters by coursework programs, who numbered 170,000 pre-pandemic, will also be able to stay on to work for three years instead of two and vocational education graduates will be eligible for a two-year temporary visa.

Students will have their time spent studying offshore recognised when applying for a 485 visa.

The Government has announced further measures to support the return of international students and graduates, bolstering the international education industry by:

  • Allowing Temporary Graduate 485 visa holders, who have been unable to travel to Australia as a result of COVID-19 international border restrictions, to apply for a replacement visa;

  • Increasing the length of stay on Temporary Graduate visas in the Masters by Coursework and Vocation Education and Training (VET) streams;

  • ​Simplifying the requirements for Temporary Graduate visa applicants for VET sector graduates; and

  • Extending the existing measure for student and temporary graduates to recognise time spent offshore studying online to count towards qualifying for a Temporary Graduate visa application.

“In order to excite interest in Australia as a study destination these student visa flexibilities are welcome,” Mr Honeywood said.

“Whether they will be enough to encourage students who are already considering Canada, the UK and US is another question.”

News that fully vaccinated international students can return to NSW, Victoria and the ACT from December 1, alongside visa reform, should help alleviate intense frustration within the international student sector, which was valued at $40 billion in 2019.

However, there are concerns that the delay in reopening borders will have little impact on attracting new students for the 2022 academic year as most would have made decisions about where to study some months ago.

Please note: No further details available at this stage. This page will be updated when legislative changes are implemented and with any further information when it is received.

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