The Employer Nomination Scheme (ENS) subclass 186 visa allows skilled workers to come to Australia and work for a nominating employer permanently. The employer may nominate a worker who is in or outside of Australia and depending on the circumstances, may nominate under one of three streams:
- The transitional stream if you have previously sponsored a subclass 457 or 482 visa holder for the past 3 years;
- The direct stream if you have not sponsored the nominee (worker) previously, or if they cannot use the TRT stream;
- The Agreement stream for employers who want to negotiate a labour agreement with the Government.
A nomination is required for all subclass 186 applications, along with the new Training Contribution Charge
The transitional (TRT) nomination application is for employers who already sponsored the nominated employee for a subclass 457 or 482 visa. The essential requirements to lodge a 186 TRT nomination application include:
- The nominating employer must be the standard business sponsor of the 457 or 482 visa holder;
- The employee must have worked in the nominated position in the business, on a subclass 457 or 482 visa as a primary visa holder, for at least three out of the previous four years before the nomination is made.
- The nominated position must be full time, ongoing and available for at least two years and be consistent with the position in which the applicant has already worked in the business;
- The nomination must identify an occupation (for the position) that has the same four-digit occupation unit group code as the subclass 457 or 482 approved occupation;
- The business must pay the new TCC and have met the training benchmark requirements in each year they have been a standard business sponsor.
Time already worked with the previous subclass 457 or 482 sponsor may be considered towards the 3 year requirement if the nominating employer demonstrates the nominated person has been working in the same role, with the same employer and in the same location the entire time.
The Direct (DE) nomination application is for employers who want to nominate a worker for a subclass 186 visa, but have not previously sponsored them, or who cannot use the TRT stream. The essential requirements for a successful 186 DE application include:
- The terms and conditions for the position must meet the minimum standards set out under Australian employment law;
- The position must be made available for at least two years, with no expressed exclusion of future employment;
- The business must be financially viable (able to afford the nominated employee for at least 2 years);
- Salary for the position must be paid at the Australian Market Salary Rate, and above $53 900;
- The nominated occupation (position) must be on the subclass 186 occupation list;
- The TCC must be paid and any training benchmarks met as applicable;
- The employer must undertake at least 28 days LMT (advertising);
- The position in the business must be genuine.
If the salary is below $250,000, employers must show the salary is substantially simillar to market rates in the nominated occupation, called the Australian Market Salary Rate (AMSR).
If there is an Australian working in the equivalent position in the same location, or if contracts or salary indicators can be obtained from similar businesses in the same location, then comparison is made between the gross incomes of the Australian and the employee to be nominated. Benefits where the value cannot be estimated ahead of time may not be included in base salary.
If there is no Australian working in a similar position in the location, then a different market rate assessment must be used..
the Skilling Australians Fund (SAF) - Training Contribution Charge came into force on 12 August 2018. Businesses applying to nominate in the 186 Transitional stream must evidence they have met their subclass 457 or 482 training obligations in each year they were a standard business sponsor, up to 12 August 2018. These businesses must retain evidence of this training for 12 months after they last held a business sponsorship, however we recommend 7 years.
Labour Market Testing is not required for 186 nominations, however U Migrate Australia strongly recommends undertaking LMT in the prescribed manner to assist in in establishing other criteria. This means employers should dvertise in a particular way, for at least 28 consecutive days and within the 4 months before lodging a ENS 186 nomination application.
The Department will generally require you to provide evidence that the position you are nominating the subclass 186 worker for is a genuine position. In our experience applicants will recieve a Request For Information (RFI) from the Department if a statement is not included. This RFI generally outlines several subjective questions in an attempt to establish if the position is genuine or not.
We strongly recommend all employers fill in some form of Genuine Position Statement to submit with their application