186 Visa - ENS

The employer nomination scheme, subclass 186 visa, allows Australian employers to sponsor foreign skilled workers for permanent residency in limited occupations. There are three (3) different streams and each stream has their own criteria with respect to a range of factors.

  • Labour Agreement stream: Limited employers may negotiate and arrange bilateral agreements with the Department.
  • Temporary Residence Transition stream: Certain subclass 457 or 482 visa holders may qualify for transition.
  • Direct Entry stream: Applicants with a prescribed period of work experience in an eligible occupation may be eligible to apply directly.

It is pivotal to understand which of the three (3) streams is right for your situation. Differences exist in the 186 visa forum with respect to the 186 visa processing time, applicability of the occupation list, exemptions to age and English restrictions and many other areas of variance. Applying for a visa under the wrong stream will almost invariably result in a visa refusal and may, depending you your circumstances, prejudice your existing permanent residency options. It is best to speak to a migration lawyer to ensure you know with stream of the three are right for you and your nominating employer.

As Subclass 186 is an employer sponsored visa, only foreign nationals who are employed and nominated in an eligible occupation by an approved Australian employer sponsor may apply. The costs of the sponsorship approval and nomination application must be borne by the employer.

Visa Requirements and “Full Time” Work

In many circumstances, visa eligibility may be contingent on having undertaken proscribed periods of full time work. Such prerequisites are particularly pertinent to the transition and direct entry streams. “Full time” in the context of this visa, 186 subclass, is, under regulation, regarded as meaning 38 hours per week. Work engagements constituting fewer than 38 work hours per week will not be regarded as “full time” for the purposes of visa eligibility.

Volunteer, or otherwise unpaid work, will not be counted for the purposes of any applicable experiential requirement. The reasons for this restriction are various and includes the difficulty in evidencing experience without proof of payment. In any event, only paid employment may be used to substantiate your experience in your nominated occupation.

All periods of claimed work experience must be evidence within one’s visa application. Due to the importance of ensuring an applicant possesses the requisite skills, the Department of Home Affairs meticulously analyses employment evidence. Generally speaking, independently verifiable third party evidence, such as bank statements and tax documents, ought be provided as part of your visa application. Efforts to defraud the Department will likely be met with a swift visa refusal and 3 year ban on subsequent applications.

Labour Agreement Stream

For the purpose of this 186 visa stream, a labour agreement refers to a bilateral agreement between the Department and a reputable Australian business to sponsor foreign workers via streamlined procedures. These agreements are not entered into lightly by the Government as most nominating employers will not be eligible for a labour agreement. There must be a legitimate need to address labour shortages affecting specific industries or regions. Designated Area Migration Agreements (DAMA) operates through a labour agreement and is not a stream unto itself. If your nominating employer is not subject to a labout agreement, it is not possible for a visa applicant to apply for a labour agreement on his or her employer’s behalf.

If a labour agreement is issued to the sponsoring employer, the applicable nomination criteria varies from the other streams as each labour agreement may permit concessional terms as negotiated.

Common Criteria

Applicants in the transition or direct entry stream must satisfy the following:
  • Applicant holds the necessary licences, registration and memberships;
  • The position is subject to nomination and the applicant is nominated by a employer approved as a standard business sponsor;
  • The employment contract must provide employment for at least 2 years and not forbid the continuance after the 2-year period;
  • Applicant has not provided a benefit to the employer in exchange for the nomination in the last 3 years, pursuant to subsections 245AR(1), 245AS(1), 245AT(1) or 245AU(1) of the Migration Act;
  • Applicant must be less than 45 years old (exemptions may apply);
  • Applicant must have at least competent English (exemptions may apply).
  • Satisfy health and character requirements.

Competent English – Select Passport Holders

For the purposes of demonstrating “competent English” for the purposes of visa English requirements, citizens of select countries are immediately deemed to meet this requirement. Citizens of the United States, United Kingdom, Canada, New Zealand and the Republic of Ireland need only their passports to satisfy the visa English requirements. Citizens of all other countries must fall under one of very limited exemptions or undertake a proscribed English test, achieving the requisite scores therein.

Eligible Occupations

Applicants in the streams of transition and direct entry must have eligible occupations to qualify for Subclass 186 visas. The list of eligible occupations is available on the page – MLTSSL – Medium and Long-term Strategic Skills List

The applicability of the occupation lists changes somewhat for holders of Subclass 457 visas. 457 visa holders who were granted or applied for their 457 visa before 18 April 2017 may apply for a Subclass 186 visa under the transition stream irrespective of their occupation. In such circumstances the MLTSSL is functionally irrelevant for such an employer nomination scheme, subclass 186, visa application.

If you are unsure whether your occupation is eligible in your circumstances, please contact a migration solicitor to discuss the viability of your 186 visa application.

Age Limitations

Applicants aged 45 and over are generally ineligible for a Subclass 186 visa. A number of exemptions may apply in limited circumstances, particularly in relation to certain high-demand occupations.

For the Direct Entry stream, the age exemption applies to the following cohorts of applicants:

  • Researchers, scientists and technical specialists nominated by a scientific agency of the Australian Government;
  • Senior academics nominated by an Australian university;
  • Subclass 444 or 461 visa holders who have worked for the nominating employer for 2 of the last 3 years.
  • For the Transition stream, the age exemption applies to:
  • Researchers, scientists and technical specialists nominated by a scientific agency of the Australian Government;
  • Senior academics nominated by an Australian university;
  • High income earners according to the Fair Work High Income Threshold;
  • Regional medical practitioner exemption;
  • The age limit of 49 applies if the applicant holds a current Subclass 457 visa which was applied before 18 April 2017.

Temporary Residence Transition Stream

Applicants who currently hold either the subclass 457 or 482 visa, may transition to the subclass 186 employer sponsor visa visas after a proscribed number of years of nominated employment. For most applicants, the requisite duration of employment is three years full time. Note that changing nominations can adversely affect satisfaction of the three years criterion. If you do currently hold a 457 or 482 visa, wish to apply for 186 under this stream and need to change employer, be sure to obtain advice from a migration solicitor before changing your employment status.

Transitional Arrangements

Prior to the implementation of the subclass 482 visa, applicants who held the subclass 457 visas were also able to undertake a temporary residence transition pathway to the 186 visa. The rules regarding the temporary residence transition were amended in 2017 to impose stricter requirements on subsequent 457 visa holders.

If you are a holder of a 457 visa which was granted or applied for before 18 April 2017, you may qualify for the 186 visa under the previous 186 visa transition arraignments. These transitional arrangements permit a 186 visa application after only two years of full time employment, down from the current three years, and does not require the applicant’s occupation to appear on the requisite occupation list, allowing for transition regardless of occupation.

Age Concession - High Income Threshold

If you are a high income 186 visa holder, the temporary residence transition stream offers concessional eligibility. Applicants who have worked for the nominating employer for at least three years and, for each of the 3 years, have earned above the high income threshold set by the Fair Work, are eligible to apply for Subclass 186 visas regardless of their age. This exemption is only available for the transition stream of the employer nomination scheme subclass 186 visa. The threshold is indexed and varied annually as of 1 July. It is currently $148,700 as at the time of writing.

Age Concession - Regional Medical Practitioner

Due to the ever-present demand for medical practitioners, the Australian Government has introduced an age exemption for select general practitioners who have practiced in regional Australia on a temporary employer sponsored visa. The age exemption applies to licenced medical practitioners in the transition stream where:

  • They have been employed as medical practitioners for the last 3 years;
  • They had held Subclass 457 or 482 visas for the 3-year period;
  • They were employed in regional Australia for at least 2 of the 3 years; and
  • The position nominated for Subclass 186 visas is located in regional Australia.

Direct Entry Stream

Direct entry allows qualified applicants with significant occupational experience to apply for immediate permanent residency without transition via another temporary employment visa. Applicants in this stream require a greater duration of occupational experience and a formal skills assessment.

Skills Assessment

All eligible occupations are assigned a skills assessment authority. Each assessor has different policies, procedures and prerequisites. On the basis of the evidence provided to the assessor, they will determine whether you meet the skill and education threshold for your occupation and period of valid work experience that can be claimed to the Department. Work experience without evidence will usually be disregarded by the assessor. Furthermore, in the event of the requisite formal qualification, only the work experience accrued after its completion will be counted.

 

Application Charges

The following costs are payable by the employer:

  • Sponsorship application: $420
  • Nomination application: $540

The following costs associated with the application must be paid by the applicant:

  • Base application charge: $4,045
  • Additional applicant charge for an applicant who is at least 18: $2,025
  • Additional applicant charge for an applicant who is less than 18: $1,010

Second installment, payable only by applicants who do not evidence competent English:

  • Primary applicant: $9,800
  • Secondary applicant: $4,890

Skilling Australians Fund Levy

As of 12th August 2018, under the Temporary Residence Transition and Direct Entry streams, the employer must make a mandatory contribution to the Skilling Australians Fund, often abbreviated as “SAF.” The purpose of this fund is to finance the training of Australian workers in order to address skill shortages in the domestic labour market.

This SAF levy is payable at the time of lodging the nomination application. The total cost of the levy is dependent on the annual turnover of the sponsoring employer.

The figures for this levy are as follows;

  • $3,000 for employers with the annual turnover less than $10,000,000
  • $5,000 for employers with the annual turnover more than $10,000,000

Applicable Public Interest Criteria:

4001, 4002, 4003, 4004, 4010, 4020, 4021, 4019 (if applicable).

Applicable Special Return Criteria:

5001, 5002, 5010.

Visa Conditions

If an applicant is outside Australia at the time of grant, the visa must set first entry before a specified date.

For secondary applicants, the following may be imposed:

8515: The holder of the visa must not marry or enter into a de facto relationship before entering Australia. For more information visit us Visa Plan

Global Talent Visa Program and Distinguished Talent Assistance

Making Your Australian Dream True