Australian Immigration Daily News

The Employer Nomination Scheme (Subclass 186 visa) (‘ENS’) is designed to enable Australian businesses to find skills overseas for the purposes of filling permanent, full time, skilled positions in their business.  This framework works alongside temporary visa solutions such as Labour Agreement facilities, RSMS(The Regional Sponsored Migration Scheme (Subclass 187 visa – transitional arrangements) and others, to assist the skills/ labour shortage in Australia

Ove recent months it has become harder for employers to nominate their employees for permanent residency.  The Department of Home Affairs is places greater scrutiny on certain applications depending on the industry, the number of years the business has been operating and the number of employees is being employed by the business

When applying for ENS, it is important to consider the following factors:

Adverse Information

Paragraph 5.19(4)(b) of the Regulations requires that either there be no adverse information known to the Department about the nominator or a person associated with the nominator, or that it be reasonable to disregard such adverse information Adverse information is ANY information that may potentially result in an unfavourable outcome on an application.

Licensing and registration

Paragraph 5.19(4)(c) of the Regulations requires the person identified in the nomination to, at the time of lodgement, hold, or be eligible to hold, any required licensing, registration or membership, where this is mandatory in the state or territory in which the position is located.  This requirement is particularly difficult to fulfil as each State and Territory has different requirements.  For example, NSW Law Society has differing governing rules around lawyers who practice without a practicing certificate.

Nominated position is available for at least two years

Regulations 5.19(5)(l) also requires that the visa applicant will be employed on a full time basis in the nominated position for at least two years and that the terms and conditions of employment not preclude extension of the period of employment. Again, a difficult undertaking for an employer to sign during a potential downturn.  It is therefore important to take a deeper diver into the financials of the business to ensure that the business an offer a position for at least two years.

Full time employment

Whilst in certain circumstances, part time employment is acceptable under TSS programme. For the purposes of regulations 5.19(5)(f)(ii) 'full time' is, under policy, defined as being at least 35 hours a week. This requirement is to ensure that the role is permanent in nature and ongoing.

Financial Viability of the nominator

Home Affairs needs to be satisfied that the nominator has sufficient financial capacity to comply with the requirement to provide the nominee with at least two years of full-time employment.

Documentation provided by the nominator may be used to assess their financial capacity. If the documentation provided is not adequate and the delegate believes they may be able to make an assessment on the basis of additional documentation, they may seek additional documents such as:

• Most recent balance sheet and profit and loss statement or
• Business tax returns for the most recently concluded fiscal year and

Over recent months, Home Affairs is taking an approach a letter from an accountant is no longer sufficient. The letter should be accompanied by evidence of new contracts won or at the very least P&L Statements. Business Activity Statement (BAS)  can be submitted as part of the application, however, these do not pain the overall picture of how the busines is going financially.  If you choose to use BAS, for each complete quarter between the end of the fiscal period and the date of application lodgement.