Parish Patience Immigration Lawyers

Permanent Employer Sponsored Migration – ENS and RSMS

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)

• The Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme (Subclass 187).

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

The Employer Nomination Scheme (ENS) allows Australian employers to sponsor foreign skilled workers for permanent residence to fill vacancies in their business.

You might be able to get this visa if you:

  • have been nominated by an approved Australian employer
  • are younger than 45 years of age, unless you are exempt
  • meet the skills, qualifications and English language requirements, unless you are exempt
  • apply under the stream for which you were nominated.

Regional Sponsored Migration Scheme

The Regional Sponsored Migration Scheme (RSMS) encourages migration to areas outside the metropolitan centres. It allows Australian employers in regional, remote or low population growth areas of Australia to sponsor foreign skilled workers for permanent residence to fill skilled vacancies in their business.

You might be able to get this visa if you:

  • have been nominated by an approved Australian employer for a job in regional Australia (regional Australia does not include the Gold Coast, Brisbane, Newcastle, Sydney, Wollongong or Melbourne)
  • are younger than 45 years of age, unless you are exempt
  • meet the skills, qualifications and English language requirements, unless you are exempt
  • apply under the stream for which you were nominated.

The employer’s business, as well as the nominated position, must be located in a regional area. The RSMS covers all of Australia except Brisbane, the Gold Coast, Sydney, Newcastle, Wollongong and Melbourne : Click Here for list of eligible postcodes

Information relevant to a nominator Employer

The employer is a person who seeks to nominate a skilled worker who is either overseas or in Australia on a temporary visa, for a skilled position within their business. Whether or not a skilled position is eligible under the Direct Entry stream will depend on the scheme used:

• for the ENS, the nominated position must correspond to an occupation in the Consolidated Sponsored Occupation List

• for the RSMS, the nominated position must correspond to an occupation at skill level 1 to 3 within

the ANZSCO framework.



Nomination

Employers who are considering nominating a person under the ENS or RSMS may locate suitable people in various ways, including:

• through their efforts of testing the Australian labour market

• personal contact and/or experience with the nominee

• recommendation from third parties

• through the SkillSelect database.

All prospective applicants must first be nominated by their direct employer in Australia. The nomination must be received through the department’s website using e-lodgement.

Information relevant to a nominee

Employee

An employee is a person nominated by an employer in Australia for a skilled position within the employer’s business. This person may lodge a visa application under the appropriate stream of the ENS or RSMS.

Applying in Australia

To be eligible to apply for an ENS or RSMS visa while you are in Australia, you must hold a valid substantive visa, or a Bridging visa A, B or C.

Applying outside Australia

You are eligible to apply for an ENS or RSMS visa from outside of Australia.


English requirements

The English language requirements for the permanent employer sponsored program is based on the

International English Language Testing (IELTS). More information is available on the IDP Education website at www.idp.com

The English language level you must satisfy will depend on the stream you apply for.

Temporary Residence Transition stream applicants must possess vocational English. This is equivalent to a minimum IELTS score of 6 in each of the 4 test components of speaking, listening, writing and reading.

Direct Entry stream applicants must possess competent English, which is equivalent to a minimum IELTS score of 6 on each of the 4 test components.

Agreement stream applicants will need to meet the English language requirement specified in the relevant agreement for the position.

You may still be able to satisfy the English language requirement if you do not have a recent IELTS result, provided you have other legally prescribed evidence or if you are considered to be exempt

If you have been sponsored by an employer through the Agreement stream, exemptions to the English requirement will only be possible if this is allowed within the relevant agreement.

Even if you qualify for an English language exemption, you must pay the second instalment of the visa application charge if you do not have at least functional English.


Functional English – Migrating Family Members

A functional level of English is required by migrating family members who are 18 years of age or older. Ways to demonstrate this level of English language proficiency include:

• an average IELTS score of 4.5 for the 4 test components (speaking, reading, listening and writing). IELTS test scores are valid for 3 years. The nearest test centre can be found on the IDP Education

website www.idp.com

• An Occupational English test score which is at least equivalent to IELTS 4.5

• Evidence you have been assessed by an Adult Migrant English Program provider in Australia as having functional English

• Completion of at least 5 consecutive years of full-time study in a secondary and/or higher education institution where all the tuition was delivered in English

• You hold a current passport from the United Kingdom, United States, New Zealand, Canada or the Republic of Ireland. Migrating family members who are 18 years of age or older must either have functional English or pay the second instalment of the visa application charge.

Exempt categories

If you are applying for an ENS or RSMS Direct Entry Stream or Temporary Residence Transition stream visa you may be eligible for age, English language or skill exemptions.

Age

To meet the age requirement you must be less than 45 years of age, or exempt. Exemptions will be available to applicants:

• Nominated as a senior academic by a university in Australia

• Nominated as a scientist, researcher or technical specialist by an Australian Government Agency (for instance, Commonwealth Scientifi c Industrial Research Organisation (CSIRO) or the Australian Nuclear Science and Technology Organisation ANSTO)

• Nominated as a Minister of Religion by a religious institution

• Applying through the Temporary Residence Transition stream, who have been working for their nominating employer as the holder of a subclass 457 visa for the last 4 years and whose earnings were at least equivalent to the Fair Work Australia High Income Threshold1 over that period.

Skills

Skill exemptions only apply to the Direct Entry streams of the ENS or RSMS. Visa applicants applying through the Temporary Residence Transition stream will not need to have

their skills assessed as they are considered to have met the skill requirement based on the time they have spent working on their subclass 457 visa in their nominated occupation for their nominating employer. Exemptions for the ENS Direct Entry stream will require applicants to:

• Be nominated as an academic by a university in Australia

• Be nominated as a scientist, researcher or technical specialist by an Australian Government Agency (for instance, CSIRO or ANSTO)

• Be nominated as a Minister of Religion by a religious institution

• Have nominated earnings at least equivalent to the current Australian Tax Offi ce top individual income tax bracket 2

• In Australia as the holder of a subclass 444 or 461 visa and have worked with their nominating employer in their nominated occupation for the last 2 years. Exemptions for the RSMS Direct Entry stream will require applicants to:

• have nominated earnings at least equivalent to the current Australian Tax Offi ce top individual top income tax bracket 3

• in Australia as the holder of a subclass 444 or 461 visa and have worked with their nominating employer in their nominated occupation for the last 2 years.


English Language capability

Applicants are required to show that they have the required English language proficiency for the visa they are applying for, or be exempt. In addition to achieving the required International English Language Test Score (IELTS) applicants can show that they meet the English language criteria by:

• Obtaining a score of at least ‘B’ in each component of the Occupational English Test (OET)

• Holding a passport for the United Kingdom, the United States of America, Canada, the Republic of Ireland or New Zealand. To be considered exempt from the English language requirement an applicant must be:

• Nominated as a Minister of Religion by a religious institution

• applying through the Temporary Residence Transition and they have completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

Criteria For Direct Entry And Temporary Residence Transition streams

Common criteria

All employer nominations under the Direct Entry and Temporary Residence Transition streams are assessed against the following common criteria:

• The employer’s business is actively and lawfully operating in Australia

• The position is available to the nominee for at least 2 years

• The terms and conditions of employment are the same as those that would apply to an Australian citizen or Australian permanent resident performing the same work in the same location

• There is no adverse information known to the department about the employer or a person associated with the employer

• The employer has complied with relevant workplace relations laws. Employer Sponsored Migration


Active and lawful operation

Lawful operation

The employer must demonstrate that the business and its activities are registered with relevant authorities.  Depending on the structure of the business and related business arrangements, registration requirements may include:

• Registration for tax purposes with an Australian Business Number (ABN)

• Registration with the Australian Securities and Investment Commission (ASIC) which consists of an Australian Company Number (ACN) or Australian Registered Body Number (ARBN)

• registration of business (or trading) name.

Active operation

In addition to the employer’s business being legally established, it must also be actively operating. Businesses that have been legally established but do not have any business activity will not meet the requirement to be actively operating. The employer must demonstrate that their business has been actively operating for a period of at least 6 months before lodging a nomination.

A business would be considered to have commenced ‘active operation’ once all the infrastructure necessary for the activities of the business is in place and the business has commenced providing services to customers/clients. The entity must have operated for at least 6 months from the time it ‘actively commenced operations’ to satisfy the requirement to be actively operating. The evidence needed to establish the date of active operation commenced depends on the type of business activity undertaken. For example:

• A person operating a restaurant would be considered to have commenced active operation on the day on which the restaurant was officially opened to the public

• A person providing a consultancy service would be considered to have commenced active operation on the day they where awarded their first consultancy contract.

A business that has operated for less than 12 months must provide Business Activity Statements for each complete quarter from the time of commencement of operations to the time of lodgement of the nomination, to demonstrate that active operation.

In addition, they may provide a combination of the following documentation, depending on the nature of the business activity:

• Contract of sale relating to the purchase of the business (where the nominator purchased an existing business)

• Lease agreement relating to business premises

• Evidence of lease or purchase of machinery, equipment, furniture etc.

• Contracts to provide services

• Evidence of employment of staff

• Business bank statements covering the period of operation

• Letter of support from the accountant to the business.14 Employer Sponsored Migration


No adverse information

There must be no adverse information known about the business or a person associated with the business. The department may disregard any adverse information if it is satisfied that it is reasonable to do so. However, any adverse information which is known to the department will be taken into account in deciding the applicant’s sponsorship application.

Terms and conditions of employment

Equivalent terms and conditions of employment (market salary rate) Nominating employers must show that they will provide no less favourable terms and conditions of employment to the nominee than they would to an equivalent Australian in their workplace at the same location. This is known as the ‘market salary rate’. How do I determine the market salary rate for the nominated position? The way in which you demonstrate the market salary rate differs depending on whether there is an Australian performing equivalent work in the workplace.

There is an Australian performing equivalent work in the workplace

In this case, you can demonstrate the market salary rate by referring to the terms and conditions that apply to that Australian worker. If the terms and conditions of the Australian performing equivalent work are directly set by an industrial instrument (such as a modern award or enterprise agreement) then this may be used to demonstrate the market salary rate. If the Australian worker is not covered by an industrial instrument because they are employed under a common law contract, then the terms and conditions in the common law contract may be used to demonstrate the market salary rate.

There is no Australian performing equivalent work in the workplace

In this case, you can demonstrate the market salary rate by referring to an industrial instrument (such as a modern award or enterprise agreement) that directly sets the terms and conditions of Australians performing equivalent work. Applicable industry awards may be used to demonstrate the market salary rate where the awards directly set the terms and conditions of Australians performing equivalent work.

If you are referring to an award to demonstrate the market salary rate you must provide evidence that Australians performing equivalent work are being paid the award rate. If there is no equivalent worker or relevant industrial instrument, the onus will be on you to provide a range of evidence to demonstrate the market salary rate. Some relevant evidence may include, but is not limited to:

• Data from reputable remuneration surveys

• Published earnings data (for example Australian Bureau of Statistics (ABS) data)

• Evidence of what employees performing equivalent work are paid in similar workplaces in that location. You must satisfy the department that the proposed terms and conditions of employment are appropriate for that location and industry.

Certification by a Regional Certifying Body – under RSMS

Employers who wish to sponsor workers through the RSMS Direct Entry stream may have to pay a charge to seek advice from a Regional Certifying Body (RCB) on a nominated position in their business.


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