August 14, 2018

ENS 186

Employer Nomination Scheme - ENS 186 Visa application requires nomination and visa application.

The two stage application process can occur simultaneously. That is, both applications can be lodged together, but nomination must be lodged first with visa application lodged against it.

The key points to consider with nomination applications are as follows.

  • Genuine Position is a key test applied to ALL nomination applications
  • Lawful (or what would be considered ‘normal’) business operations
  • Organisational context of application
  • Business background and future prospects associated with the role (business case)
  • Labour Market Testing
  • ‘No less favourable’ employment rules
  • Statutory declarations pertaining to nomination
  • Sponsorship obligations and history

With each consideration, case officers must be 'satisfied'. If a case officer is not satisfied, they will initiate natural justice proceedings. This means simply they will request clarification, information or documentation,

Nominations that are weak on any of the considerations above will increase the risk of refusal.

ENS 186 visa application applicants need to consider the following.

  • Language requirements (ie IELTS 6)
  • Skills Assessments by skills assessing bodies
  • Work history and relevance to nominated role
  • Character and personal background
  • Migration history in Australia and other countries
  • Experience and remuneration

Skills Assessments

Skills assessment is largely mandatory for ENS 186 visa application. In some circumstances, exemptions are possible.

Training Commitment - Skilling Australia Fund

For nomination applications lodged on or after 12 August 2018, sponsors (or individuals who have applied to become a standard business sponsor or a labour agreement sponsor) must pay the Skilling Australia Fund (referred to as ‘SAF levy’).

NOTE: The nomination training contribution charge is payable in full at the time of lodging a nomination application. 

Information provided in the online nomination application form is used to calculate the required SAF levy amount payable. Note, refunds are possible in some limited circumstances.

Labour Market Testing

A key feature of Nomination application for TSS Visa 482, and also for ENS and RSMS nomination applications, is Labour Market Testing

Follow this link for an extensive list of things to know about Labour Market Testing,

In brief, there a number of things to remember with Labour Market Testing.

Policy positions of the Australian government have indicated a trend towards tightening of LMT criteria.

June 2018 is a key point in time for this transition. Labour Market Testing (LMT) FOR TSS 

  • Currency of LMT evidence is to be no more than 6 months prior to date of nomination lodgement (affecting applications made after 18 June 2018); Labour Market Testing (LMT) FOR TSS Visa
  • Exemptions for occupational skill level will no longer apply;
  • All nomination applications will require LMT  unless international trade obligations (ITOs) apply, for example FTA with China;
  • Two sources of LMT evidence (ie paid advertisements) are to be mandatory and not discretionary;
  • Platforms for LMT advertising are to be credible and nationally recognised, ie,, etc;
  • Nationally syndicated or distributed media, including newspapers and syndicated radio (eg;
  • Internally advertised positions are to be accepted online for intra company transferred appointments or roles;
  • Advertising in the ‘Vacancies’ or ‘Careers’ section of the sponsoring business is only to be accepted where the sponsor is accredited (that is, formally recognised by the Department as a distinguished and high volume sponsor);
  • Period of time for acceptance of applications to be clearly indicated in the advertisements;
  • Period of time for acceptance of applications to be 21 calendar days or longer;
  • Documentation of agency relationships where outsourcing of recruitment has taken place.

Genuine Position Test

A critical component of the nomination application is the genuine position test.

Policy states that the aim of the genuine position test is to ensure that skilled workers are sponsored where local workers cannot be sourced.

The Regulations are structured to filter roles that are deemed to be 'created' for the position, or is a position that, despite its title or listed duties, does not align in reality with an eligible occupation. In other words, whether the position appears to be manufactured for the purpose of a visa application.

A key distinction in policy is the difference between a position that is 'genuine' or ‘needed’, but rather a position associated with the nominated occupation is genuine. That is, the position must exist and also be what it purports to be.

  • For example, if a fundraising business is seeking to employ a person to dress in an animal costume and collect donations from the general public and has nominated a Marketing Specialist (ANZSCO 225113), whether the business has a genuine need for such an employee is irrelevant.
  • But, for this criterion to be satisfied, the officer would need to be satisfied that a position exists that requires the occupant to undertake the duties of a Marketing Specialist (as described in ANZSCO) - which would appear unlikely in this case.
  • The ‘genuineness’ assessment does not equate to a commercial decision as to whether it makes good business sense to hire a particular worker or pay them a particular salary. It is, however, the department’s role to prevent the misuse of the TSS visa program through the creation of non-genuine positions.