Mark Webster

Acacia Immigration Australia

Employer Nomination Scheme20 August 2010

IARC Seminar

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Seminar Outline

1. DIAC Processing Update

2. Nomination Requirements

3. Visa Requirements

DIAC Processing Update

1. New PAM – 1 October 2011

2. Decision Ready

3. Review of ENS/RSMS

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Review of ENS/RSMS – MAIN ISSUES

• Whether to abolish the Labour Agreement subclasses• English language requirement for ENS and RSMS• Salary level for ENS and RSMS• Skill level for ENS and RSMS• Age requirement for ENS and RSMS - quite possibly raising the limit from

45 to 50• The level of discretion in considering exemptions for the above criteria• The level of concessions for the above criteria for regional positions• Whether a provisional visa should be introduced to encourage migration to

regional areas• The list of approved occupations for ENS may be linked to the 457

occupations list• The role of Regional Certifying Bodies in approving positions for RSMS• E-lodgement of ENS and RSMS visa applications

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Seminar Outline

1. DIAC Processing Update

2. Nomination Requirements

3. Visa Requirements

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Nomination Requirements - Overview

§ Active and Lawful Operation

§ Need for Paid Employee

§ Employer of Good Standing

§ Employment

§ Adequate Provision for Training

§ Position Duration

§ Salary Level

§ Gazetted Occupations

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Active & Lawful Operation

§ Must be operating in Australia (contrast 457)

§ Lawful Operation • Possible Structures :

– Sole trader – can nominate others– Company – Trust – must be employed through trustee– Partnership – can be employer, providing it’s possible to enter into contract– Business Name – must be employed through owner of business name– ARBN – overseas businesses

• ABN is required to nominate under ENS, with limited exceptions

§ Active Operation • Registration of entity is not sufficient in itself – additional information for newly

registered businesses is required

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Trusts

§ Trustee must be nominator

§ Trustee has legal right and obligation to act on behalf of beneficiaries in managing affairs of the trust

§ Trustee may have more than one ABN – use the one for the “as trustee for” registration

§ Provide trust deed

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Full Time Employment

§ Can either direct employer or “related entity” under s.50 or Corporations Act – compare with “associated entities” under s.50AAA

§ Labour hire/contract staff services: under policy can meet requirement – need agreement with end user

§ Self-employment:• OK so long as there is an intervening legal entity(ie company)

§ Full time employment required under Reg 5.19(2)(f) – 38 hours/week under policy

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Need for Paid Employee

§ Vacancies can be of 3 types:

1. Regular ongoing activities of employer:– Generally OK, unless there have been recent retrenchments or temporary

visa holders paid less favourable rates

1. Diversification of Business– May require additional evidence such as business plan, budgets, market

research, funding

2. Startup Business– Additional documentation required: eg lease of premises or equipment

§ Nominee does not need to be declared in nomination:• Can change nominee after grant of nomination• Cannot change nomination during processing of visa application

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Employer of Good Standing

§ Not subject to cancellation of sponsorship under s.140L and s.140M

§ Nothing adverse known to DIAC about:• Employer• Officers of Employer• Members of Partnership• Bankruptcy/administration/insolvency can impact

§ Satisfactory record of compliance with• Immigration laws• Workplace relations laws (State & Commonwealth)

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Satisfactory Provision for Training Reg 5.19(2)(e)

§ Adequate provision for existing employees: relevant factors under policy• Trainees, apprentices or graduates recruited in last 12 months (5-15% of

staff)• Dedicated trainers or training consultants• Organised, structured, documented training programmes – on-the-job• Participation in external programs (industry, government, exchange)• % of wages & salaries expended on training• No mention of training being limited to Australians

§ Newly Established (< 6 months):• Provision for future training relevant

§ Single employee businesses – can be assessed as for newly established business

§ Skills transfer by employee to Australians may be acceptable in itself

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Position Requirements - Duration

§ Open for at least 3 years• Contract/letter of appointment is necessary to establish this• Needs to be signed by both parties for visa stage

§ Probationary Periods:• 3-6 months is usual• Must be in single contract (ie not one for probation & one for perm)• Option to extend to 3 years after probation not acceptable• Termination based on not achieving certain objectives OK• Provisions for termination before 3 years based on performance OK• Probation for entire 3 years not OK• Probation over 6-12 months not OK, unless applies to all employees

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Conditions “No Less Favourable”

§ Legislation now sets out minimum standards for full time employment:• Guaranteed hours of at least 38 hours/week• 4 weeks’ annual leave• 10 days personal leave (sick, carers, compassionate)• Unpaid parental leave

§ Provision under PAM for officers to look at conditions:• Job advertisements, if these are provided by employer• Instances where employer has previously not paid market rate or complied

with awards• Salary might indicate that the position is not at the required skill level

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Minimum Salary

§ Depends on Occupation:• IT (except sales, CIO): $67,556• Otherwise: $49,330

§ Calculating salary:• Penalty rates – OK if part of fixed salary under award• Bonuses/incentives – excluded• Overtime – excluded• Allowances (eg car, accommodation, shares, options) – excluded• LAFHA – excluded• Superannuation – either voluntary or compulsory – excluded• Non salary benefits (except Medicare rebates) - excluded

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Chefs & Cooks

§ Excluded occupations:• Kitchen hand• Assistant cook• Fast food cook• Cook preparing simple dishes only (eg bacon & eggs)• Fast food managers

§ Acceptable employers:• Food typically prepared by chefs• Table service & seating• Service generally for eating on premises• Diversity of styles of cuisine• Examples: family restaurants, casual dining, fine dining

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Religious Organisations

§ Legislative instrument specifies salary level either:• Subsistence wage (equivalent to unemployment benefits) plus

board/lodging and other non-monetary benefits; or• Provides board, health, education, welfare etc to a value equivalent to

minimum salary

§ Minister of Religion is only occupation eligible for salary concession – others must meet usual requirements

§ Must still show a commitment to training locals, particularly when become more established

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Gazetted Occupations - ENSOL

• Swap to ANZSCO 1 July 2010 • Intention is not to exclude occupations previously on ENSOL:• Transition table from ASCO required where skills assessment or

nomination approved prior to 1 July

• The ENS List is not identical to the 457 list, but it is similar: Does include Managers, Professionals and Associate Professionals,

Tradespersons Does not include Sales & Service Managers. Does not include some “Not Elsewhere Classified” occupations

• Surprising exclusions: IT Managers, web design, test & QA CEOs Life scientists & biotechnologists Trades – fitter, cablers & cable jointers

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Seminar Outline

1. DIAC Processing Update

2. Nomination Requirements

3. Visa Requirements

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Visa Requirements

§ Requirements for Onshore Lodgement

§ Age

§ English Language Ability

§ ENS Pathways

1. Skills assessment plus 3 years work experience

2. Highly paid position

3. Two years in Australia

4. Offshore GSM applicants

5. Onshore GSM applicants

6. SIR/SRS applicants

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Onshore Lodgement for Subclass 856

§ Qualifying Visas:• Temp work – subclasses 457, 416, 420, 421, 423, 428, 406, 415, 419,

442, 422• NZ Citizens: subclass 444 and 461• Temp Skilled: subclass 485, 487, 475, 476, 495, 497• Senior executives: subclass 161 and 164• Temporary Protection Visas• Working holiday subclass 417• Student Visas:

– Must be granted for a diploma or higher qualification– Must have completed a diploma or higher whilst on that visa

§ Where don’t hold a substantive visa:• 3001 (28 Days), 3003 and 3004 (compelling reasons) apply• Must have held qualifying visa prior to substantive visa ceasing

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Age Requirement

§ Applicant generally must be under 45 at time of application

§ Waiver for 45-59:• Needs to be an “exceptional appointment” – similar criteria as for work

experience waiver

§ Waiver for 60+: • Applicant must be uniquely suited for position – with highly specialised

skills and experience• Great economic benefit to Australia in terms of tax revenue or interests of

Australia (eg resources)• High salary ($213k plus according to Productivity Commission)

§ TPV holders considered exceptional for Age

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English Requirement

§ Applicant generally must generally establish vocational English• IELTS 5 min max 12 months prior to lodgement• OET

§ Otherwise:• Passport from UK, Canada, NZ, USA, Ireland• Trade certificate, diploma or higher qual taking at least 2 years’ study in

English medium• NAATI accreditation

§ English waiver possible where:• Exceptional circumstances• Vocational English not required to perform duties; and• Still possible to pass on skills to Australian employees• Tougher policy considerations for cooks & chefs

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Registration Requirement

§ Applicant must hold, or be eligible to hold:• Registration, licence or professional membership• Where this is required for a person to work in the occupation

§ Requirement cannot be waived

§ Limited registration• Registration which requires supervised practice will not suffice for ENS (eg

medical practitioners)• Otherwise, if only additional work experience is required this will suffice

(eg teachers in some states)

§ Architects: registration not required where a letter from employer confirms:• Nominee will not represent to public as an architect; and• Nominating entity employs at least one registered architect

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ENS Option 1 :Skills Assessment

§ A positive skills assessment should be provided at lodgement• Must be suitable at date of lodgement• Can provide after lodgement, but date of assessment must precede date

of lodgement

§ Mostly, the skills assessing authorities are similar to those under general skilled migration – some exceptions:

• Mandatory licensing or registration: the licensing or registration body is an assessing authority

• Trades: can either be done by TRA or the relevant State or Territory Department of Industrial Relations

• Senior Academic or Research Positions: universities or CSIRO can be the assessing authority

§ Expect issues with some authorities:• VETASSESS• Trades

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ENS Option 1: 3-Years Work Experience

§ Must have been employed in the occupation to which the ENS relates

§ Periods spent as a trainee or pre-qualification will not count towards the requirement

§ Under policy, must be full-time – generally 38 hours per week and anything less than 30 hours per week would not normally be considered full time.

§ Work need not be immediately prior

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Exceptional Circumstances for Work Experience Waiver

§ International students:• ANZSCO skill level 1 or 2 (diploma or higher)• Completed relevant qualification in Australia at diploma or higher level

within 6 months of lodgement• Statement from employer in relation to unusual/highly specialised skills or

experience

§ Other cases – exceptional circumstances:• No more reference to MODL/CSL• Same factors considered also for age waiver• Position important to strategic/financial direction of business• Engaging new or existing niche or unconventional markets• Financial hardship due to business relying on income generated by app• Specialised or unusual skills not available in Australia• Position different to other similar positions in the industry

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ENS Option 2: Highly Paid Position

§ Onshore or offshore applications

§ Minimum salary level is $250,000

§ Under policy, this is base salary – excluding benefits & allowances

§ If currently employed, DIAC may wish to see payslips

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ENS Option 3: 2 Years in Australia – Visa Requirement

§ Only applies to onshore applications

§ Must hold one of the following visas at the time of application:• 457: Business Long Stay• 418: Educational• 422: Medical Practitioner• 428: Religious Worker• 421: Sport Visa• 444: Special Category Visa – NZ Citizen• 461: NZ Citizen Family Relationship

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ENS Option 3: 2 Years in Australia – Visa Requirement

§ You do not have to be the primary visa holder

§ Must have held one of these visas for a period of 2 years prior to the time of application:

• Need not be the same subclass for the whole time – can change subclasses if necessary

• Under DIAC policy, time spent on a bridging visa between two of these visas can be counted

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ENS Option 3: 2 Years in Australia – Work Requirement

§ Work full time in Australia in the occupation nominated for last 2 years:• Must be full time (this is in the regulations), under policy, at least 38 hours/wk• Must be in Australia – under policy this means “based in Australia” and short

periods of time spent outside Australia should be OK• Must be in the nominated occupation – DIAC will use ANZSCO definition to

determine this

§ Flexibilty for leave in PAM:• Unpaid leave: up to 6 months in last 30 months• Maternity leave: up to 12 months in last 36 months• No flexibility for career breaks or periods of unemployment in last 2 years

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ENS Option 3: Last 12 Months with Nominating Employer

§ If an employer changes ABN OR ACN, this would be an issue for the 12 months requirement

• Even if continue operations under same business name and management team

§ Work for related companies under s.50 can count, but not “associated entities” under s.50AAA

§ Breach of 8107 condition does not necessarily imply refusal of ENS

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Offshore Subclass 175 and 176 (Class VE) Applicants

• Exempt from first VAC for 121• Exempt from usual skill option requirements• Competent English – only defined for GSM• Under 45 at date of application for GSM• Diploma or higher qualification relevant to occupation:

– Refers to Reg 2.26A(6): Australian quals– PAM indicates that an Australian qual is required– Can claim exceptional circumstances – PAM indicates that in this case,

you need a diploma but it may not need to be relevant to occupation

• PAM indicates that GSM app must first be withdrawn if wish to apply under usual ENS criteria

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Onshore GSM Subclass 885 and 886 (Class VB) and NZ GSM Applicants

• Exempt from first VAC for 856• 3001 applies: must have held qualifying substantive visa within 28 days• Usual skill options apply• Competent English• Under 45 at date of application for GSM• Diploma or higher qualification under Reg 2.26A(6)

– no exceptional circumstances– No mention of relevance

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SIR/Skilled Regional Sponsored Holders

§ Lower application fee for 856:• 1st VAC: $270• 2nd VAC: exempt if already paid for SIR/SRS

§ Validity: must have held SIR/SRS visa for 2 years

§ Waivable health PIC 4007 applies

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Other Requirements

§ Health:• Offshore Subclass 121: 4005 applies• Onshore Subclass 856: Waivable health condition 4007 applies where

employment is in participating state

§ Including family members after lodgement:• Children born during processing added by operation of law via Reg 2.08 • Partners and dependent children can be added by written request via Reg

2.08A• Otherwise, can include other family members by paying VAC and completing

47ES

§ Family violence:• If relationship has ceased and family violence has occurred, it’s possible for

former family member to be granted visa