In part one of a two-part series, Ariel Brott outlines key changes to the Employer Nomination Scheme.
If you’re a HR professional who has sponsored non-citizen employees before, then you might have noticed that Immigration tends to like change. Lots of change. Rightly or wrongly, visa subclasses come and go, thresholds go up and down, new policies are ushered in as essential, only to evaporate several years later - and so on.
This year Immigration has been particularly busy, having introduced last July some of the widest ranging reforms to employer-sponsored migration in at least seven years.
Since that time I have taken panicked calls and emails from HR professionals on an almost daily basis, all seeking to understand how these changes affect them and what they can do going forward. While not in any sense a replacement for tailored legal advice, this article, the first of two, will attempt to broadly answer those questions, examining some of the key changes to the Employer Nomination Scheme (ENS), as relevant to an HR professional’s responsibilities.
In this instalment I will discuss the broad structure of the new ENS scheme as well as changes to the eligible occupations and age limits
The New Employer Nomination Scheme
The ENS scheme enables a business to sponsor foreign employees for permanent residence. For those of you familiar with what were known as the subclass 121 and 856 ENS visas, these have now been replaced by the new subclass 186 ENS visa, key features of which I have set out below.
There are three eligibility streams available under the new ENS scheme:
The Temporary Residence Transition Stream. This is for visa applicants who are already sponsored by their employer via a subclass 457 visa. This is similar to how the old scheme worked however the new subclass 186 visa requires the visa applicant to have worked for the one employer for at least two years, instead of just one year.
The Direct Entry Stream. This enables eligible applicants to apply directly for permanent residence without having first worked under a subclass 457 visa.
The Labour Agreement Stream. This is for employees who are already sponsored by their employer via a labour agreement or regional migration agreement.
Comment: Previously, executives earning over $250,000 comprised another pathway, however this option now exists instead as a skills exemption under the Direct Entry Stream and at a far lower threshold currently set at $180,000 – which I will discuss in the next instalment of this article.
As for the lengthening of the employment period under the Temporary Residence Transition Stream, this is most likely an advantage from a human resources perspective, as it promotes employee retention. At the same time, it makes it harder to lure subclass 457 holders away from competitors, and of course it makes life a little harder for subclass 457 visa holders aspiring to permanent residence.
New scheme: The specific Employer Nomination Scheme Occupation List (ENSOL) has been replaced by a Consolidated Sponsored Occupation List (CSOL) which applies to both subclass 457 visas as well as the new subclass 186 visa.
Temporary Residence Transition Stream applicants may apply for any occupation whose ANZSCO code shares the same first four digits as the occupation under which they obtained their subclass 457 visa. This is in recognition of the fact that over time an employee’s career may progress into related occupations.
Previously, occupations on the 457 list, for example certain IT-related occupations, were not always reflected in the ENSOL. Accordingly, the CSOL represents a broadening of eligible occupations, and bestows continuity on certain visa applicants seeking a pathway to permanent residence.
New scheme: Under the new ENS scheme, the upper age limit has been increased from 45 to 50.
Comment: While raising the age limit is of assistance to those aged between 45 and 50, the new laws significantly curtail the exemptions open to those between 50 and 60. Under the old scheme, submissions could be made as to a broad range of exceptional circumstances for candidates over the age limit. This has been replaced by rigid exemptions outside of which no visa may be granted. These exemptions include a small number of occupations such as academics, as well as applicants who have worked for the nominating employer under a subclass 457 visa for the last four years and whose annual earnings were above the Fair Work Australia High Income Threshold over that period (currently $123,300).
On the other hand, the new exemptions may provide an easier avenue for eligible applicants over 60, as under the old scheme exceptional circumstances were extremely difficult to establish for applicants over 60.
Ostensibly these latest structural changes are intended to simplify the ENS scheme - and to some extent they do (although that statement has elicited laughs from more than one HR Director). At the same time, it is worth noting that the introduction of a rigid system of specific exemptions, rather than leaving discretion for a broad range of “exceptional circumstances”, represents a significant tightening of the system. In the next instalment I will discuss in further detail some of the other ways in which the ENS scheme has been both limited and liberalized, focusing on new requirements for English, skill, salary, training and position availability.
Read Part 2 here
About the author
Ariel Brott is a solicitor and migration agent in the corporate division of migration firm Erskine Rodan & Associates. For further information email: firstname.lastname@example.org