Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

The subclass 186 visa is a Permanent Resident visa which is available for qualified overseas workers who meet the requirements for one of the streams.

Requirements 186 Direct Entry Stream:

1. Have an eligible occupation that is provided by the Department of Home Affairs. https://immi.homeaffairs.gov.au/visas/working-in-australia/skill-occupation-list
2. Have relevant work experience unless exempt. The applicant is required to have at least 3 years of relevant work experience in the nominated occupation.
3. Licensing, registration, or membership: The applicant must be licensed, registered, or a member of a professional body if it is mandatory in the state or territory the applicant intends to work in.
4. *Have a positive skill assessment
5. Be nominated by an Australian employer whose business is actively and lawfully operating.
6. The applicant must be under 45 years of age when he or she applies unless the applicant is eligible for the exemption policy.
7. Have at least competent English: Competent English (homeaffairs.gov.au)

DAMA program can access either the Labour Agreement stream of the 482 visa, or the Labour Agreement stream of the 494.

For the purposes of this article, I will focus on the DAMA 482 programs and comparing it with TSS 482 Medium Term stream and TSS 482 Short Term Stream.

For anyone who has been on TSS 482 Short term in Australia during the pandemic, you might be eligible for a PR Pathway to 186 Visa. Read TSS 482 Short to PR here !

We are here to answer your questions about the Skilling Australians Fund levy

There are several important factors employers need to consider when sponsoring an employee for a permanent residency visa or when appealing a decision.

The Employer Nominated Scheme (ENS) subclass 186 visa and the Regional Sponsored Migration Scheme (RSMS) subclass 187 visa have two main streams:

• Direct Entry stream
• Temporary Residence Transition stream

The ENS 186 visa also has a third, less commonly used stream, the labour agreement stream. This stream is very important for Designated Area Migration Agreement applications and other forms of labour agreement, but is not as commonly used as the other two.

There are three possible stages for an ENS 186 visa or RSMS 187 visa:

1. Regional Certifying Body Advice application (RSMS 187 Direct Entry Stream ONLY) to the relevant Regional Certifying Body
2. Employer nomination application to the Department of Home Affairs
3. Visa application to the Department of Home Affairs

Genuine position refusals

One of the most common reasons for refusal of ENS 186 visas and RSMS 187 visas is that the position is not genuine.

“Genuineness” is a complex assessment which does not have a concrete definition.

Case officers examine the entirety of the application, including the business circumstances, and develop an opinion as to whether the position being nominated is a genuine position required by the business which fits within the employer-sponsored migration program, or whether the whole or part of the position has been created solely to achieve a migration outcome.

There are certain occupations which are at a high risk of additional scrutiny for genuineness. These are high-volume occupations which may have attracted low-quality applications in the past. The two main examples are:

• 149212 Customer Service Manager

• 511112 Program or Project Administrator

For the above occupations, it is important that the nominated position fits clearly within the relevant occupation. The case officer will be looking to the position description, organisational chart, employment contract and any other explanatory information and documents you are providing.

If the position does not appear to align with the occupation you have nominated, the case officer may find that the position is not genuine.

Temporary Residence Transition Stream – ENS 186 and RSMS 187 Visas

If using the Temporary Residence Transition, the application must be consistent with everything in the subclass 457 or subclass 482 visa.

One of the key matters which will be checked by the Department of Home Affairs is whether the visa applicant has been paid the nominated earnings for the whole duration of their subclass 457 or subclass 482 visa. A common issue here is where superannuation has been included in the nominated Guaranteed Annual Earnings. Because superannuation is not included in Guaranteed Annual Earnings (it is considered to be a separate employer obligation), this may inflate the earnings which were required to be paid to the visa holder.

Special attention must be given to this when applying for an ENS 186 visa or RSMS 187 visa under the Temporary Transition Stream.

Limited Availability of RSMS TRT Going Forward

With the RSMS subclass 187 visa closure on 16 November 2019, the Temporary Residence Transition stream of this visa will remain only available to a small group of people.
This group comprises two subgroups:

• Transitional 457 workers – those who held or had applied for (which was subsequently granted) a subclass 457 visa on 18 April 2017
• Transitional 482 workers – those who held or had applied for (which was subsequently granted) a TSS 482 visa on 20 March 2019

Currently, this appears to leave a group of people in the middle unaccounted for. These applicants may not be able to access the RSMS temporary transition after 16 November 2019.
For these workers, it may be worth considering whether Direct Entry can be completed prior to the shut-off.

Appeal Tips

If a negative decision is received from the Department of Home Affairs at either the nomination or visa application stage, a merits review at the Administrative Appeals Tribunal (AAT) may be available. The ordinary timeframe for applying for this is 21 days, so it is important that you act quickly.

If such a decision occurs at the nomination stage, it is important that both stages are appealed to the AAT. If the nomination is not appealed, the visa applicant will not be able to be successful on appeal.

It is very important if appealing that all efforts are made to strengthen the circumstances of the application while waiting for a hearing date to be set. It can currently take quite some time for a new employer-sponsored matter to be constituted at the AAT and a hearing date set.

This time presents both a difficulty and an opportunity for the business and the worker. During this time, the employer and employee need to strengthen their relationship to have the best prospects of success. The employee should continue working in the business and the business should maintain detailed records to clearly demonstrate this.

An appeal to the AAT is a merits review process, so the Tribunal Member will stand in the shoes of the decision maker and look at the situation anew. You are able to provide new evidence to seek an improved outcome.

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Employer sponsored visas (including DAMA) can be an attractive option for many migrants, but it is important to remember that you must first find an employer that is willing to sponsor you.

6 Reasons Why A Nomination May Be Refused For Permanent Residency Visas In 2019. When Applying For A Permanent Visa (ENS 186 & RSMS 187), Both The Skilled Applicant And The Business Have Terms And Conditions That Are Required To Be Fulfilled.

Genuine Position Requirements for the ENS Subclass 186 Visa, TSS subclass 482 Visa, & RSMS Subclass 187 Visa. How To Prove Nominated Position Is A Genuine Position.

Australian Immigration Points: How to Increase Your Points for Employer Sponsored (SESR 494, ENS 186), Independent (189, 491 Family Sponsored), and State Nomination (190, 491) Skilled Visas - Accountants, Nurses and more. 

Accountants have traditionally been one of the most well-represented occupations in Australia’s skilled migration numbers. The occupation falls under ANZSCO Unit Group 221, which includes:

• 221111 Accountant (General)
• 221112 Management Accountant
• 221113 Taxation Accountant

In an earlier article posed on 28 March 2018, we discussed the Government’s plans to introduce the Skilling Australians Fund (SAF) which employers would have to contribute to before a work visa can be approved.

We can now confirm that the legislation which introduces the fund was passed by the Australian Senate on 8 May 2018.

What is the Skilling Australians Fund?

The Australian Government introduced the SAF to fund projects that support apprenticeships and traineeships, and will focus on training Australian workers in new skills.

"This fund will ensure an ongoing source of revenue to support Australian skills development and the take-up of apprenticeships and traineeships. The new fund will replace the existing training benchmarks, which have not been successful in generating training opportunities to allow Australians to fill skill gaps,” the government said in the Budget.

Key terms: Migration Policy Changes – Employer Sponsored Visas – Subclass 187 RSMS – Subclass 186 ENS – English Requirements – Age Requirements

With the announcement of the 457 visa programme being abolished in March 2018, the Department of Immigration and Border Protection (DIBP) also announced changes to be introduced to the permanent employer sponsored visas, which include:

·         the subclass 186 Employer Nomination Scheme (ENS) visa

·         the subclass 187 Regional Sponsored Migration Scheme (RSMS) visa

The changes are planned to be introduced in stages on 1 July 2017 and March 2018. In this article we will be looking at the changes coming on 1 July 2017.

The newly elected Premier of Western Australia (WA) has moved to remove WA from the subclass 187 Regional Sponsored Migration Scheme (RSMS) visa programme. On Friday the 17 of March 2017, Mark McGowan MP submitted a letter to the Australian Prime Minister with the following:

"I would like to request that Perth be removed from the Regional Sponsored Migration Scheme (RSMS)."

In our earlier article we explained that the South Australia (SA) State Government started its policy to impose contributory fees for each school child of 457 visa holders, following Western Australia (WA), New South Wales (NSW) and the Australian Capital Territory (ACT). By January 2018 all 457 visa holders in SA will have to pay the contributory fees for each child in school. Depending on the number of children and your household income, the contributory fees can be in excess of thousands of dollars per year.

2018 UPDATES:

Skills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident VisasSkills Assessments & Occupation Lists for Australian TSS 482 And Employer-Sponsored Permanent Resident Visas

Tougher vetting imposed by Home Affairs Minister Peter Dutton has led migration to plummet to its lowest since 2007. As reported by the Department of Home Affairs, actual intake fell from 183,608 in 2016-2017 to a staggering 162,417 for the 2017-2018 financial year. Read More. 

How long does a 457, ENS or RSMS visa take to process?

It has been noted that the processing times for the Temporary Work (Skilled) (subclass 457) visa, Employer Nomination Scheme (ENS) (subclass 186) visa, and the Regional Sponsored Migration Scheme (RSMS) (subclass 187) visa have been getting longer in recent times. While the current Department of Immigration and Border Protection (DIBP) service standards list 2 to 3 months processing time for 75% of applications received, the actual processing times for most cases are around 5 months (based on recently submitted applications and comments by business sponsors and visa applicants in forums).

Why is the processing getting slower?

While there is no official explanation for the delay, the slower processing times might be due to increased screening of applications submitted by sponsors and visa applicants. Since the Independent Review report of the integrity in the Subclass 457 Programme released in September 2014, the Department has been stepping up integrity checks and controls for the majority of applications, especially those with the following characteristics:

• high risk occupations such as Café and Restaurant Managers, Customer Service Managers, Project or Programme Administrators, Retail Manager, etc.
• the applicant is related to the business owner as a family member or relative
• an unusually high salary for a low position to claim English Language Exemption
• the business has a low profit or is making a loss, and yet seeks to employ more people

The Department is definitely concerned with the findings of the Independent Review about the integrity of employer sponsors and employee visa applicants for the employer-sponsored visas. In addition to the slower and more meticulous screening of applications submitted, the Department has also introduced related policy such as the “Payment for Visas Conduct”, which prohibits overseas worker to pay businesses in return for sponsorship, or businesses deducting salaries from the sponsored worker to recover sponsorship costs. You can read more about this in our previous article.

Concerns with Genuine Position for Nominated Occupation in 457, ENS and RSMS visa applications

Applications with the above scenarios are likely to be asked for further information by the Department to ensure that the vacant position is genuine and the applicant meets the requirements for the position with the business. Applications that are asked to provide more documents or information will be assessed more thoroughly by the Department and hence there will be a delay to the processing times with the back and forth of submitting information and douments.

The rise in requests to provide further information are also causing assessment officers to spend more time per application, hence affecting applications that are straightforward genuine and complete when submitted.

What does this mean for the business sponsor and visa applicant?

With the expected delays the business sponsor and visa applicant need to consider the extended processing times to avoid any ill effects to the business operations (urgent need for the sponsored worker) or the visa applicant (leaving current employment too early). Additionally the business sponsor and visa applicant need to cross check before submitting the application to ensure all requirements are met for sponsorship, nomination and visa application. A strong application should be prepared with good supporting documents before submitting to the Department for processing.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

While the 457 visa programme has been in the limelight for the wrong reasons and being tightened in recent times, the employer sponsored programme is still an integral part to many businesses in Australia. Australian employers have a genuine need to employ skilled overseas workers to meet business needs to maintain or grow the Australian economy.

With the increased international mobility among skilled workers globally, it is important that the 457 visa programme remains responsive to Australian businesses’ needs and enable efficient operations.

The Department’s commitment to checking and ensuring that the 457 visa applications received are genuine makes sense to avoid abuse of the programme. However the downside of slower processing times may hurt Australian businesses that already show that they genuinely need an employee who has been identified with the right skills and experience to help meet business operational needs. The Department will need to strike a delicate balance between enforcement and delivering a visa application outcome in time for the Australian businesses.

If you have any questions about the 457 visa sponsorship, nomination and visa application, please contact Work Visa Lawyers to ensure your applications are prepared well before applying.

This information is accurate on 18 May 2016

Source:

1. http://www.theaustralian.com.au/business/opinion/john-durie/small-business-angry-over-section-457-visa-delays/news-story/f53d0b941627c2403cc3abb8d014ce35
2. https://www.border.gov.au/Trav/Work/Work/Subclass-457-Integrity-Review
3. https://www.border.gov.au/about/access-accountability/service-standards/temporary-work-visa-processing-times
4. https://www.border.gov.au/Trav/Work/Work-1

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

In our earlier blog looking at the year 2015 in review, it was mentioned that the Department of Immigration and Border Protection (DIBP) has introduced measures to penalise activities and arrangement in relation to “Payment for Visas”. On 4 December 2015, the Australian Federal Parliament passed the bill for the Migration Amendment (Charging for a Migration Outcome) Act 2015. New criminal, civil and administrative sanctions, and visa cancellation provisions were introduced on 14 December 2015.

The range of actions that can be taken by the DIBP extends to visa applicants, business sponsors and related third parties (such as migration agents) who participate in a payment-for-visa scheme. The severe penalties include:

• Criminal penalties punishable by a maximum of 2 years imprisonment or a fine equivalent to $64,000 for an individual person or $324,000 for a body corporate
• Civil penalties applicable to the sponsor, visa applicant or other third party who received or provides or offers a benefit related to a sponsorship related offence will equate to $43,200 for an individual person or $216,000 for a body corporate
• Provisions for the DIBP to consider cancellation of visas granted to applicants who engage in payments-for-visas conduct

The “payment” in reference includes benefits other than monetary payments. This new legislation will affect the 457 work visa, the Employer Nominated Scheme (ENS) 186 visa and the Regional Sponsored Migration Scheme (RSMS) visa.

Will it affect my 457 visa?

Yes it could if you paid your sponsor! If you paid for sponsorship your visa could be cancelled! The new Bill introduces a discretionary power to consider cancellation of a temporary or permanent visa where the visa holder has engaged in a "payment for visa" conduct.

You can obtain more information about the newly announced measures at the DIBP webpage here.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

The measures introduced are part of the recommendations that were tabled in the 457 visa programme integrity review released by the DIBP. The penalties and powers granted to the DIBP demonstrate a strong intention to protect the integrity of the temporary work visa programme.

Even without the fear of punishment and penalties, individuals and businesses should be vigilant and avoid visa scams as they become a source of exploitation of the system and genuine overseas workers. The power to cancel a visa that was granted based on a payment-for-visa scam is a concern for those who have already paid for sponsorship before the Bill came into power.

This information is accurate on 18 December 2015

Source:

1. http://www.border.gov.au/Trav/Work/Work-1

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

The Department of Immigration and Border Protection (DIBP) has announced changes affecting the Employer Nomination Scheme (Subclass 186 Visa) and Regional Sponsored Migration Scheme (Subclass 187 Visa). Two occupations – Ministers of Religion and Medical Practitioners, are affected by the changes announced.

Ministers of Religion (ANZSCO 272211) now required to sign-up to Labour Agreements

Ministers of Religion are now no longer eligible for the Direct Entry and Temporary Residence Transition stream of subclass 186 and 187 visas, as well as the Temporary Work (Skilled) subclass 457 visas. Religious organisations are now required to have an Industry Labour Agreement in place before they submit nominations under the 186, 187 and 457 visas.

Exemptions to age, skill and English language are no longer available to Ministers of Religion. Applicants must meet the requirements outlined in the Ministry of Religion Industry Labour Agreement. Follow this link to learn more about requesting for labour agreements.

Age Exemption now available for eligible medical practitioners in regional Australia

Medical practitioners who work in regional Australia and wish to apply for the subclass 186 and 187 visas now have easier access to exemptions for the age requirement if they are 50 years of age or over. Medical practitioners working in regional Australia seeking for the age exemption will no longer require employment with the same employer while holding a subclass 457 visa or a Medical Practitioner (Temporary) Subclass 422 Visa. They will instead need to:

• Demonstrate at least four years of employment in the nominated occupation
• Demonstrate that at least two out of the required four years of employment were located in regional Australia
• Ensure that the nominated position is located in regional Australia

For more information about exemptions, visit the Department webpage here.

Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers

More changes are expected at the turn of the new fiscal year and it is important that applicants are aware of the implemented changes that can affect your Australian visa eligibility. In this case Ministers of Religion are now subjected to stricter requirements while medical practitioners in regional Australia effectively gain a lower requirement for the age criteria when applying for the subclass 186 or 187 visas.

Follow Work Visa Lawyers on Twitter, Facebook and YouTube to receive information on the latest changes to the Australian migration programme.

Source:

1. http://www.border.gov.au/News/Pages/Ministers-of-Religion-occupation-changes-from-1-July-2015.aspx
2. http://www.border.gov.au/News/Pages/Medical-practitioners-in-regional-Australia-age-exemption.aspx

This information is accurate on 1 July 2015

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications, including state sponsorship applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as Migration Review Tribunal, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 7225 5091 or +61 8 7225 5091

or   This email address is being protected from spambots. You need JavaScript enabled to view it.

Firstly, I can make reference to an insightful blog by a representative of DIAC.   Kruno Kukoc, First Assistant Secretary Migration and Visa Policy Division, Department of Immigration and Citizenship.  The below blog summarises some of DIAC’s policy initiatives for 2012.

http://migrationblog.immi.gov.au/2013/01/24/a-year-in-review-2012/

It is a good summary of some of the changes and the intentions underlying the changes.

Secondly, I can add my own observations on the negative effects of changing so many major visa categories at the same time, from the 1 July 2012.  These included a surge in visa applications prior to visa changes, with the potential of significant processing  delays due to these numbers, and ongoing technical difficulties for the new SkillSelect  electronic visa system.

The priority processing order released by DIAC since 1 July 2012 still has employer sponsored visas the Regional Sponsored Migration Scheme (RSMS) subclass 187 and Employer Nomination Scheme (ENS) subclass 186.

Source:

http://www.immi.gov.au/about/charters/client-services-charter/visas/8.0.htm

Registered Migration Agents can still lodge Decision Ready application for RSMS and ENS.

The ability for RMAs to indicate an application is decision ready has been built into the new online system for RSMS (subclass 187) and ENS (subclass 186).

Decision ready applications usually receive superior processing times from DIAC compared to non-decision ready applications.