Employer Nomination Requirements 187 & 186

Employers should engage the services of our experienced Migration Agent before starting a permanent employer nomination application to support a 186 or 187 visa application.  Speak to our Migration Agent in Perth, Sydney or Brisbane :  Ph 1800 875 285

Employer Nomination, Labour agreements and the nomination categories

Employer nominations made for positions that are subject to a labour agreement should be made under the Agreement stream of ENS or RSMS. Employer nominations under the Agreement stream may be considered only if the positions are subject to a labour agreement.

Positions that are subject to a labour agreement cannot be considered under the Temporary Residence Transitions stream of ENS or RSMS.  The 457 visa must have been granted under the standard business sponsor requirements 457 visa and were not subject to a labour agreement.

There may be limited circumstances in which a nomination that was otherwise subject to a labour agreement is made under the Direct Entry stream of ENS or RSMS. This may occur in circumstances where the labour agreement does not provide a pathway to permanent residence, and the visa applicant is able to meet the requirements of the Direct Entry stream in their own right. In these circumstances, the employer nomination is required to meet all requirements of the Direct Entry stream. Any concessions provided for in the labour agreement do not apply.

If your company is a party or wants to be a party to a labour agreement contact our Migration Agent Perth.

Common criteria

The business of the nominating employer must be actively and lawfully operating in Australia.

For an ENS employer nomination, the position may be located anywhere in Australia, and the nominating business may be located anywhere in Australia.

A RSMS employer nomination to be made in regard to a position located in regional Australia.  Regulation and the business operated by the nominator must be located in the same location. This regulation does not relate to where the nominee lives (subject to their being able to travel to the location of the work).  The tasks of the nominated position may be spread across more than one location across Australia.  The nominated position must require the nominee to be physically present in that location to perform the tasks of the nominated position.

Start-up businesses

For the purposes of the regulatory criterion requiring active operation, a start-up business is one that has been in active operation for a period less than 12 months.  A business would be considered to have commenced ‘active operation’ once the ABN and/or ACN comes into effect and the entire infrastructure necessary for the activities of the business is in place and the business has commenced providing services to

Established businesses

A business that has been actively operating for a period of more than 12 months should be able to provide appropriate financial documentation to support their claims of active operation.

The business should be able to submit:

  • either
    • a balance sheet (statement of position) for the most recently concluded fiscal year (with comparative figures for previous fiscal year), and profit and loss statement (statement of performance) for the most recently concluded fiscal year, with comparative figures for the previous fiscal year or
    • business tax returns for the most recently concluded fiscal year

and

  • if the fiscal period to which the financial statements or tax returns submitted relate ended more than 3 months before the nomination was lodged – a business activity statement (BAS) for each complete quarter between the end of the fiscal period and the date the nomination was lodged.

Under the Temporary Residence Transition and Direct Entry streams respectively, require that the visa applicant will be employed on a full-time basis in the nominated position for at least 2 years and that the terms and conditions of employment not preclude extension of the period of employment.

The nominator must provide a copy of the proposed employment contract to enable verification.  The employment contract must include:

  • the name of the nominee
  • the position title and duties
  • if employment is for a specific period – the period of employment
  • the salary and employment conditions, including access to statutory entitlements.

If the employment contract covers a specific period of 2 years, the 2 year period of employment will commence from:

  • the date of visa grant if the nominee is already working in the nominated position or
  • the date of commencement of employment in all other circumstances.

Delegates need to be satisfied that the nominator has sufficient financial capacity to comply with the requirement to provide the nominee with at least 2 years of full-time employment.

Nominations under the Temporary Residence Transition and Direct Entry streams respectively, require the terms and conditions applicable to the position to be no less favourable than the terms and conditions that are provided to or will be provided to an Australian citizen or Australian permanent resident performing equivalent work in the same workplace at the same location.

The salary offered must be the market salary.  If the nominator employs Australian citizens or permanent residents in the occupation to which the nominated position relates, the salary offered to the Australian employees is the market salary.

If the nominator does not employ Australian citizens or permanent residents in the nominated occupation the market salary rate must be determined with regard to relevant market information:

  • any fair work instrument, State/Territory industrial instrument or transitional instrument that would apply to Australian citizens or Australian permanent residents in the same workplace at the same location.
  • information in relation to statutory minimum entitlements, fair work instruments, State/Territory industrial instruments and transitional instruments that apply to Australian citizens or Australian permanent residents in similar workplaces
  • local knowledge and evidence of appropriate terms and conditions of employment including information from:
    • employer associations and
    • unions
  • broader labour market data including:
    • the ABS Employee Earnings and Hours Survey
    • the Australian Government’s Job Outlook
    • remuneration surveys and
    • job vacancy advertisements.

Employer Nomination Temporary Residence Transition stream

You may be able to nominate a skilled worker for this visa under this stream if you are an Australian standard business sponsor and meet all of the below:

  • the skilled worker holds a:
    • Temporary Skill Shortage (TSS) visa (subclass 482) (in the Medium-term stream unless transitional arrangements apply)
    • Temporary Work (Skilled) visa (subclass 457) (not granted under labour agreement arrangements) or
    • relevant associated bridging visa.
  • the skilled worker has worked for you in Australia full-time on their subclass 457 and/or TSS visa(s) for at least:
    • three out of the previous four years (before the nomination is made)
    • two out of the previous three years (before the nomination is made), if transitional arrangements apply because they either held, or were an applicant for, a subclass 457 visa (which was subsequently granted) on 18 April 2017 in the same position that you have nominated them for.
  • the skilled worker will work directly for you unless nominated in an occupation specified in a legislative instrument (certain medical occupations).
  • the nomination identifies an occupation (for the position) that:
    • has the same four-digit occupation unit group code as the TSS or subclass 457 visa approved occupation and
    • wish to fill a position that is an occupation listed for the relevant visa program (for example, a subclass 186 or 187 visa) on the list of eligible skilled occupations.
  • you actively and lawfully operate a business in Australia.
  • you have a genuine need for a paid employee to fill a skilled position.
  • you offer a skilled position that is full-time and ongoing for at least two years, with no express exclusion included in the employment contract of this period being extended in future.
  • you meet the and have the capacity to pay the worker at least the annual market salary rate for two years.

For information about the Skilling Australians Fund (SAF) levy requirement, see Employer Sponsored Skilled visas – Skilling Australians Fund (SAF) levy.

Advice where a visa holder has worked for a different employer

Advice regarding situations where the skilled worker has worked for different entities during the three year period is explained below.

Time already worked on a TSS or subclass 457 visa can only be counted towards the three year requirement of the Temporary Residence Transition stream where it can be demonstrated that the nominated person has been working in the same role, with the same employer, and in the same location for a full three year period.

As a result, if, during the three years before nominating, the TSS or subclass 457 visa holder worked for an associated entity rather than directly for their sponsor, more steps will be required to nominate this worker under the Temporary Residence Transition stream as outlined below:

  • if the original standard business sponsor again wishes to sponsor the worker but now for permanent residence, evidence must be provided that the skilled worker has been working in the same role, with the same employer and in the same location, for the entire three years they held their subclass 457 or TSS visa.
  • if the associated entity wishes to sponsor the worker directly, they must first become an approved standard business sponsor and then also provide above evidence.

Alternatively, if you have lodged a new standard business sponsorship at any time during the three year period (for example because your business underwent a takeover or restructure), you need to provide evidence that the previous standard business sponsor and yourself (as the current standard business sponsor) might be considered the same employer of the TSS or subclass 457 visa holder.

Employer Nomination Direct Entry stream nominations

You may be able to nominate a skilled worker for this visa under this stream if you:

    • actively and lawfully operate a business in Australia
    • will be nominating the worker for a position in your business
    • have a genuine need for a paid employee to fill a skilled position
    • offer a skilled position that is full-time and ongoing for at least two years, with no express exclusion included in the employment contract of this period being extended in future
    • meet the Salary and employment condition requirements Salary and employment condition requirements and have the capacity to pay the worker at least the annual market salary rate for two years
    • wish to fill a position that is an occupation listed for the relevant visa program (for example, a subclass 186 or 187 visa) on the list of eligible skilled occupations.

For information about the Skilling Australians Fund (SAF) levy requirement, see Employer Sponsored Skilled visas – Skilling Australians Fund (SAF) levy.

Additional requirements for ENS nominations only

If you are nominating a skilled worker for a subclass 186 visa, you should also ensure that the tasks to be performed correspond to the tasks of the nominated occupation as outlined in ANZSCO.

Additional requirements for RSMS nominations only

If you are nominating a skilled worker for a subclass 187 visa, you should also meet the following for your nomination to be approved:

  • the position must not be able to be filled by an Australian citizen or permanent resident who lives in, or would move to, the area
  • the tasks to be performed must correspond to the tasks of the nominated occupation as outlined in ANZSCO
  • Regional Certifying Body (RCB) specified in a legislative instrument has provided advice to the Department regarding specified matters (e.g. market salary rates and genuine need).

Further information regarding the ENS visa can be found here. Due to the complexity of these requirements we strongly recommend discussing your application with our visa specialist and  Migration Agent on 1800 875 285.