ENS 186 (Transitional Stream) Application Traps

 Recently, I had many enquiries in relation to the Employer Nomination Scheme (ENS) 186 (transitional stream) refusals.

Disappointed employers and their employees could not comprehend how after 2 years of continuous work in the same occupation (grandfathered subclass 457 provision only), the Nomination application could be refused based on a lack of evidence. Especially after substantial evidence had already been provided with their provisional applications! Why again? Why had no one asked?

Firstly, many applicants mistakenly assume that it is enough to prove that this particular position was held for a duration of 2 years to meet a Genuine Position requirement.

Secondly, if the company no longer has a valid Standard Business Sponsorship (SBS), chances are that it will fail the evidentiary requirement for a lawfully operating business in Australia.

Thirdly, all applicants assume that the Department WILL request further evidence in a separate letter if they are not satisfied with the evidence provided.

It is important to note that the Department upon acknowledgment of the application in an acknowledgment letter puts the nominator (employer) or applicant on notice that the Department may make a decision on this application without requesting additional information.

The Department’s acknowledgement letter usually duly invites the applicant to support the

application with any information that is thought to be relevant. In terms of assisting the applicant with what documents may be relevant, the Department’s acknowledgement letter directs the nominator to refer to their “ImmiAccount” where the Department provides a summary guide.

Please do not ignore the list outlined in your Immi Account and provide ALL relevant evidence at the time of the application as there might not be a further opportunity to do so. In particular:

• • Business registration documents
  • Financial documents, such as audited balance sheet (statement of position) and profit and loss statement (statement of performance) for the last financial year, with a comparison to the previous financial year OR business tax returns for the last financial year, and the associated tax assessment notice
  • Letter of support from your accountant of your business
  • Contract of employment between your business and the visa applicant
  • Job description for the nominated position

• Evidence that the Nominated position is genuine and in line with business operations

• Organisational chart OR list of your current employees
• Evidence of Annual Market Salary Rate

ENS 186 TRT FACT SHEET

1. The business must be actively and lawfully operating in Australia.
2. Genuinely need the Applicant to work in the nominated position.
3. Has the capacity to employ the Applicant in this position for at least two years.
4. The position must be full-time and available for at least two years.
5. Be an occupation included in the current Medium and Long-term Strategic Skills List (MLTSSL). This requirement does not apply if on 18 April 2017 you held (or had applied for, and were subsequently granted) a subclass 457 Temporary Work (Skilled) visa.
6. Ensure that caveats are met.
7. Ensure that the Applicant is paid the Annual Market Salary rate. The Annual Market Salary Rate is the salary that Australians earns (or would earn) for performing equivalent work on a full-time basis for a year in the same workplace at the same location.
8. The Visa Applicant must have held one of the following visas to work on a full-time basis in the nominated position for the nominating employer in Australia for at least 3 years over the last 4 years:
   
   
   • subclass 457 Temporary Work (Skilled) visa OR
   • subclass 482 Temporary Skill Shortage (TSS) visa in the Medium-term stream OR
   • subclass 482 TSS visa in the Short-term stream, if on 18 April 2017 you held (or had applied for, and were subsequently granted) a subclass 457 visa

   NOTE: If on 18 April 2017 you held (or had applied for, and were subsequently granted) a subclass 457 visa, then you only need to meet the above criteria for 2 years over the last 3 years.

9. The Visa Applicant must be genuinely performing the tasks of your nominated occupation and have competent English (IELTS 6) or hold a valid passport issued by the UK, USA, Canada, New Zealand or the Republic of Ireland.

Astute Immigration Advisory may assist you with your ENS 186 application by drafting application, collating material, advising on the relevance of evidence provided, guiding on how to ensure that you have the best chances to achieve a positive outcome.

                                   POLICY UPDATE

The Procedural Instructions have been updated at Regulation 5.19 with the following instruction to address transitional arrangements for these visa holders:

4.3.20 Transitional arrangements – in place from 18 March 2018 to march 2022

Decision-makers are reminded that the Government has provided transitional arrangements for certain cohorts of clients who held or had applied for a subclass 457 visa on 18 April 2017 which was subsequently granted. These arrangements are relevant to the TRT stream only.

Where a nomination is lodged on or after 18 March 2018, and at any time until 18 March 2022, in relation to a client in this cohort, standard nomination requirements in place as of 18 March 2018 must be met with the exception that:

• occupation list requirements will not apply; and
• the minimum period an applicant is required to have been employed in their nominated occupation/position as the holder of a subclass 457 or TSS visa will remain at two years. However, decision makers can accept 23 months as having satisfied this requirement. This is to prevent inefficiencies resulting from the 457 visa expiring a few days short of applicants meeting the two-year work requirement, necessitating obtaining a further TSS visa to complete the two years of time worked.

This means that 457 visa holders can now make an ENS application after 23 months of continuous employment with the same employer.