Employer Nomination Scheme (ENS) Visa – Subclass 186

The 186 ENS is a permanent residence pathway for skilled workers through the support of an employer in Australia.

Nomination & Visa

The application process is composed of two steps:

1. 186 ENS Nomination – which relates to the skilled position to be filled by the visa holder; and
2. 186 ENS Visa – which relates to the prospective employee who will fill the skilled position.

The ENS (186) is split into three streams:

• Temporary Residence Transition Stream – For applicants holding a subclass 482 or 457visa who have worked full-time as a 482 visa holder in Australia for at least 2 years in the 3 years immediately before submission. This pathway allows work with multiple employers in multiple positions.
• Direct Entry Stream – For applicants, either in Australia or overseas, who are seeking permanent residency through nomination by an Australian employer. Applicants are required to hold a valid Skills Assessment in their occupation and have at least 3 years of full-time post-qualifications experience in their occupation.
• Labour Agreement Stream – For persons, either in Australia or overseas, who are seeking permanent residency through nomination by an Australian employer under a labour agreement. Applicants must work, or plan to work, for their nominating employer under a labour agreement and meet the specific requirements outlined in this agreement.

1. Nomination

The Nomination relates to the position to be filled by the visa applicant and must meet certain minimum requirements:

• Occupation List: Nominate an occupation under the Core Skills Occupation List (CSOL) [PDF] unless the applicant already holds a subclass 482 under an occupation now removed from the CSOL (grandfathering provisions) or be nominated under a Labour Agreement
• Employer must be actively and lawfully operating a business in Australia
• No adverse information and a good record of compliance with Australia’s immigration and industrial relations laws for the nominator
• Business caveats applying – some occupations require the sponsoring business to demonstrate that the additional caveat requirements are also satisfied (e.g, minimum business turnover, employee numbers).
• Financial viability of the business sponsor
• Market Rates – the proposed remuneration must meet ‘market rates’ (i.e., rate which is or would be paid to an Australian citizen or permanent resident employee performing the same work)
• Above the salary floor – proposed remuneration must be higher than the Core Skills Income Threshold of $76,515; and
• Genuine – the position must be genuine and available for at least 2 years. The position must also be consistent with the business’s activities.

Employers must pay the Skilling Australians Fund (SAF) levy associated with the nomination as per below.

Training levy system

Sponsors must pay a charge for the Nomination / Visa based on the business turnover. This is called the ‘Skilling Australians Fund Levy’ and is payable in full at the time of lodging the Nomination. The levy amount is calculated as follows:

The SAF levy must be paid by the employer. Transfer of the payment to any 3rd party or the visa applicant is illegal and penalties include significant fines or criminal charges.

2. 186 ENS Visa

The 186 ENS visa application relates to the visa applicant and any family members included in the application.

This visa allows the applicant to remain permanently in Australia. However, the travel facility on the visa is valid for 5 years only. After this, the applicant will need to either apply for a Resident Return Visa or Australian Citizenship to continue travelling to and from Australia.

To qualify for the visa under the different streams:

Direct Entry:

Applicants must be under 45 years of age (limited exemptions available) at the time of application and demonstrate they have a minimum of 3 years relevant full-time post-qualifications experience in the nominated occupation. Must hold a positive skills assessment.

Temporary Residence Transition:

Applicants must be under 45 years of age (limited exemptions available) at the time of application and have worked full-time as a 482 visa holder in Australia for at least 2 years in the 3 years immediately before submission. This pathway allows work with multiple employers in multiple positions

Labour Agreement:

Applicants must be under 45 years of age (unless specifically exempted by concessions in the Labour Agreement), demonstrate they have qualifications, experience and other attributes suitable to the nominated occupation as specified in the agreement.

For all streams, the visa applicant must be qualified for any mandatory licensing, registration or membership requirements for the nominated occupation in Australia, demonstrate Competent English, and meet health and character criteria.

Family members, including partner and children up to the age of 23 can be included. Children between 18 and 23 must be financially dependent on their parents (exemptions for dependents who are over 23 incapacitated for work due to the total or partial loss of the first person’s bodily or mental functions may be available)

All family members must meet health and character requirements. Dependents over 18 years old must have Functional English or pay a second installment of $4,890 per dependent adult.

Application process

Preparation

We will provide you with a list of relevant documents to prepare for each stage of the process. Once we receive these documents, we will review and advise if they satisfy the eligibility criteria and if further information is needed.

Post lodgement

Applications can generally be lodged concurrently to facilitate the processing.

The processing times can vary significantly based on a number of factors (DHA staffing levels, applicant and industry risk profiles, occupation, salary levels, etc.). DHA provides a summary of processing times based on current statistics here.

If DHA requests additional information in support of an application, this can result in delays. We work to prevent requests for further information by supplying as much information as possible in support of your application up front; however, the discretion lies with the Departmental delegate assessing the application.

Costs

By law, employers must meet the cost of the SAF Levy only.

The remaining costs (including professional and Department fees) can be met by either the employer or the employee.

Payment for visa laws

Since December 2015, it is unlawful to offer or request sponsorship in exchange for a benefit. Benefit is defined widely and can include a favour, a service, a payment, or a gift. The benefit does not have to be provided in order for the conduct to be unlawful.

Significant penalties apply to employers, prospective employers, and the company office holders of these organisations, visa applicants, or prospective visa applicants for this conduct. Penalties include fines or jail terms for more serious conduct.

Should you have any concerns about these laws, contact us for further information.