Am I Eligible for Permanent Residency Through the Subclass 186 Visa?

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Table of Contents

• ENS Application Process
• Direct Entry Stream
• Temporary Residence Transition (TRT) Stream
• Labour Agreement Stream
• Key Takeaways

The Employer Nomination Scheme (subclass 186) visa (ENS visa) is a permanent residency visa for skilled workers nominated by an Australian employer to work and live in Australia. This visa also allows you to apply for Australian citizenship and sponsor eligible family members for various temporary and permanent Australian visas.

You can apply for the ENS visa under one of three streams:

• direct entry stream;
• temporary residence transition (TRT) stream; and
• labour agreement stream.

This article will cover the application process and the key eligibility requirements of each stream under the ENS visa.

ENS Application Process

There are two stages when applying for an ENS visa. The first stage is nomination, and the second is the subsequent visa application. Let us explore these in further detail below. 

Stage 1: Nomination Application

To submit a successful nomination application, you must meet several key requirements. These include the following:

• the nominator must be actively and lawfully operating a business in Australia;
• the application should demonstrate the genuine need for the nominee to be employed in the nominated position directly under the control of the nominator;
• the nominated position must be a full-time position and available for the nominee for a minimum duration of two years;
• the nominator’s business should have the financial capacity to employ the nominee for at least two years;
• the terms and conditions of employment must not contain any provisions that explicitly restrict extending the employment period;
• the nominee must be paid the annual market salary rate; and
• the employment conditions provided to the nominee must not be less favourable than those offered to their Australian counterparts.

Adhering to these requirements ensures a strong and compliant nomination application.

Stage 2: Visa Application

The ENS visa has general requirements for all applicants, namely that you must:

• have an Australian employer with an actively and lawfully operating business nominate you;
• have a nomination that has been approved within six months;
• be under 45 years of age (unless exempt);
• have the relevant English language skills; and
• meet the character and health requirements.

Depending on the state or territory you plan to work in, you must hold any mandatory licence, registration or professional membership necessary for your occupation.

Direct Entry Stream

The Direct Entry stream may be an option if your employer genuinely needs a skilled worker in a permanent and ongoing position for at least two years. You may also apply under this stream if you do not qualify for the TRT stream.

The key criteria for the direct entry stream are that you must:

• have an occupation on the Medium and Long-Term Strategic Skills List (MLTSSL);
• obtain a positive skills assessment in your nominated occupation (unless exempt);
• have at least competent English; and
• have at least three years of full-time work experience in your nominated occupation (unless exempt).

To demonstrate that you have the relevant work experience, you must provide supporting documentation such as:

• a resume or curriculum vitae;
• employment contracts; or 
• employment references.

Furthermore, your skills assessment must be less than three years old and issued by the relevant skills assessing authority. You can find the relevant skills assessing authority for your occupation at the Department of Home Affairs (DOHA).

Suppose an occupation requires mandatory registration or licensing, and the skills assessing authority is also responsible for this registration and licensing. In this case, providing evidence of full registration or licensing may be enough to demonstrate the applicant’s skills in that particular occupation.

Case Study

Ariana is nominated for a 186 (Direct-Entry stream) visa by a private hospital for the occupation of a General Medical Practitioner. Although the Medical Board of Australia (MBA) is listed as the assessing authority for Ariana’s occupation, the Australian Health Practitioner Registration Authority (AHPRA) works in partnership with MBA. Therefore, if the DOHA lists MBA as the assessing authority, the registration issued by AHPRA is sufficient evidence of skills. Accordingly, this eliminates the need for a separate skills assessment.

Temporary Residence Transition (TRT) Stream

The TRT stream allows applicants to apply for permanent residence if they hold a specific visa. 

On or Before 18 April 2017

If you held (or applied for and were later granted) a subclass 457 visa on or before 18 April 2017, you can apply for the ENS visa once you have worked with the same sponsor in the same occupation for at least two years. Applicants in this group must be under 50 years old when applying.

After 18 April 2017 to 24 November 2023

If you held or applied for a subclass 457 or TSS visa after 18 April 2017 until 24 November 2023, you must have worked with your sponsor full-time for at least three years before applying for the ENS visa. The MLTSSL must list your nominated occupation. If your occupation is on the STSOL, you may still be eligible if you are a specified person per LIN 22/038.

From 25 November 2023

The Migration Amendment (Expanding Access to Temporary Residence Transition Stream) Regulations 2023 (the Regulations) revised the Migration Regulations 1994, expanding pathways to permanent residence for all Subclass 457/482 visa holders, regardless of the stream in which they were nominated.

Applicants must prove that within three years of application, they have worked for the same employer while holding a 457/482 visa for at least 2 years. The DOHA will also take into account employment during periods on Bridging Visas A, B, and C, provided that these bridging visas are associated with the corresponding 457/482 visa.

To demonstrate two years of full-time employment with your sponsor throughout your 482 visa in the nominated occupation, you must provide supporting evidence such as:

• payslips;
• annual leave reports;
• income tax assessments; and
• other relevant documents.

The DOHA may also request you to complete a skills assessment to demonstrate that you have the required skills and qualifications for the nominated occupation.

Suppose there has been a change in business ownership for the subclass 457 or subclass 482 sponsor within the past 3 years, such as a business sale, takeover, or restructure. In that case, the period you worked for the previous business may still be considered. We recommend speaking to an immigration lawyer about this.

Labour Agreement Stream

The Labour Agreement stream is for employees nominated by an employer with a labour agreement with the Australian Government. This labour agreement allows you to live and work in Australia temporarily. If you are in Australia, you must hold a substantive 457 or TSS visa issued under a labour agreement to be eligible for this stream.

The labour agreement will typically outline what you must possess to qualify for this route, including:

• experience;
• skills;
• English language skills; and
• other attributes required for the nominated position.

There is a general requirement that you must be employed for at least three years in the nominated occupation. However, it is acceptable to waive this requirement if the existing labour agreement includes an approved concession by the Minister. In such cases, fulfilling the requirements specified in the labour agreement would be satisfactory.

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Key Takeaways

The Employer Nomination Scheme (subclass 186) visa (ENS visa) presents skilled workers with a promising opportunity to secure permanent residency in Australia through employer nomination. The visa offers three streams for application: 

• direct entry;
• temporary residence transition (TRT); and 
• labour agreement. 

Each stream has its specific eligibility criteria, and applicants must meet general requirements such as age, work experience, qualifications, English language skills, character, and health. The application process involves two stages: nomination by the employer and the visa application itself. If both applications are approved, the applicant will obtain permanent residency. The ENS visa is a valuable pathway for skilled workers seeking to permanently establish their lives and careers in Australia.

If you have any questions about the ENS visa, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.