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Reforms to the Permanent Employer-Sponsored Visa Program

The Australian Government has announced reforms to the permanent employer-sponsored visa program to be introduced on 1 July 2012.

The reforms will improve the program’s ability to:

  • meet Australia’s economic needs
  • respond quickly to labour market demand
  • ensure that limited program places go to those who will make the greatest contribution to Australia.

About the program

The permanent employer-sponsored visa program consists of the following:

  • Employer Nomination Scheme (ENS)
  • Regional Sponsored Migration Scheme (RSMS)
  • Labour Agreements program.

Employer-sponsored visas are highly responsive to labour market pressures and well-suited to addressing the short-to-medium term demand for specific skills, recognising that training Australian workers takes time.

The program allows employers to sponsor foreign workers for permanent residence to fill genuine vacancies in their business.

The RSMS helps businesses in regional, remote or low population growth areas, outside the major metropolitan centres of Brisbane, Gold Coast, Sydney, Newcastle, Wollongong and Melbourne, to recruit the skilled workers they need to manage and grow their operations.

The key changes

In 2011, a comprehensive review of the permanent employer-sponsored visa program including public consultation was conducted. The key reforms that evolved from the review include:

  • collapsing the existing visa subclasses from six to two. This will be achieved by:
    • removing the existing distinctions between in and outside Australia
    • replacing the permanent labour agreement visa with streams in the ENS and RSMS
  • introducing a streamlined and simplified pathway to permanent residence for eligible Temporary Business (Long Stay) subclass 457 visa holders
  • raising the upper age limit to less than 50 years
  • changes to key visa criteria including English language and skill requirements
  • introducing one consolidated sponsored occupation list to replace the 457 occupation list, the Employer Nomination Skilled Occupation List (ENSOL) and the State and Territory Sponsored Occupation List (StatSOL)
  • strategically refocussing the regional certifying body (RCB) network to the Direct Entry stream of RSMS
  • integrating the new ENS and RSMS visas with the skilled migrant selection model—SkillSelect, which will be launched on 1 July 2012.

A new visa structure

The current employer-sponsored visa classes and subclasses will be replaced with two new visas:

  • Employer Nomination (Class EN) Employer Nomination Scheme (subclass 186)
  • Regional Employer Nomination (Class RN) Regional Sponsored Migration Scheme (subclass 187).

Within each of these visa subclasses there will be three streams:

  • The Temporary Residence Transition stream is for subclass 457 visa holders who have worked for their employer for at least the last two years and the employer wants to offer them a permanent position in that same occupation.
  • The Direct Entry stream is for applicants who are untested in the Australian labour market and have not held a subclass 457 for at least the last two years or are applying directly from outside Australia.
  • The Agreement stream is for applicants who are being sponsored by an employer through a highly scrutinised and negotiated labour agreement or regional migration agreement.

An employer or visa applicant will need to meet the requirements of the particular stream.

The Temporary Residence Transition stream

As part of the 2011–12 Budget, the government announced its intention to establish a fast-tracked and simplified pathway from Australia’s principal temporary work visa category, the subclass 457 visa, to permanent residence. This was in recognition of the important economic and social contribution these skilled workers make to Australia. This forms the basis for the Temporary Residence Transition stream.

This stream is targeted at subclass 457 visa holders who have worked for their employer for the last two years and the employer wants to offer them a permanent position in that occupation immediately preceding their ENS or RSMS application.

Employers who want to nominate subclass 457 visa holders who they are currently sponsoring will need to meet the following criteria:

  • The job or position being nominated for permanent residence is consistent with the position the person held while on their subclass 457 visa.
  • The position will continue to be available to the prospective migrant for at least two years.
  • The terms and conditions of employment are the same as any that would apply to an Australian citizen.
  • The prospective migrant will be paid the ‘market rate’. That is, the nominee will be paid at least as much as an Australian employed in the same position in the same location.
  • The employer has met, or continues to meet, the subclass 457 training requirement.

Employers applying for an RSMS Temporary Residence Transition employer nomination will need to be actively and lawfully operating in regional Australia.

Visa applicants who are eligible to apply through this stream will need to meet key visa criteria including:

  • being less than 50 years of age, unless they are exempt*
  • have English language proficiency of at least five in each of the four components of the International English Language Test Score (IELTS) test, unless theare exempt*.
  • These visa applicants will not need to have their skills and qualifications assessed for the permanent visa because of their prior employment and continuing employer sponsorship.

* Further information on criteria exemptions under exceptional circumstances versus exemptions section.

The Direct Entry stream

The Direct Entry stream will be for visa applicants outside Australia or who are not able to apply under the Temporary Residence Transition stream, for example, international students.

Employers who apply through ENS Direct Entry will need to demonstrate:

  • The business is actively and lawfully operating in Australia.
  • The position is full-time and available to the prospective migrant for at least two years.
  • The nominated occupation is on the new consolidated sponsored occupation list.
  • The prospective migrant will be paid the ‘market rate’. That is, the nominee will be paid at least as much as an Australian employed in the same position in the same location.
  • The employer provides training to Australians.

Employers who apply through the RSMS Direct Entry will need to meet different criteria that include:

  • The business is actively and lawfully operating in regional Australia.
  • The position is full-time and available to the visa applicant for at least two years.
  • The position has been certified by an RCB.
  • The nominated position is classified as being a skill level 1–3 occupation in ANZSCO.
  • The prospective migrant will be paid the ‘market rate’. That is, the nominee will be paid at least as much as an Australian employed in the same job.

Visa applicants applying through the Direct Entry stream will have an untested relationship with their sponsor and limited familiarity with Australian working conditions.

To ensure these visa holders are able to achieve the best workplace and settlement outcomes they will be expected to meet more stringent English language proficiency and skill requirements.


Those applying under ENS Direct Entry will need to:

  • provide a positive skills assessment and have at least three years of relevant prior work experience, unless they are exempt*
  • be less than 50 years old, unless they are exempt*
  • pasess ‘competent English’ that is equivalent to a score of six in each of the IELTS test components, unless they are exempt*.

Those applying under RSMS Direct Entry will need to:

  • have a relevant Australian or overseas qualifications. Minimum qualification levels will be determined by the nominated ANZSCO skill level from 1–3 (trade occupations at skill level 3 will require a Trades Recognition Australia (TRA) assessment if they do not hold an Australian qualification)
  • be less than 50 years old, unless they are exempt
  • demonstrate ‘competent English’ that is equivalent to a score of six in each of the IELTS test components, unless they are exempt*.

* Further information on criteria exemptions under exceptional circumstances versus exemptions section.

The Labour Agreement stream

The Labour Agreement stream is for visa applicants whose nominator holds a labour agreement for the occupation in which they are being nominated.

Applicants applying under this stream will need to meet the requirements outlined in their nominator’s labour agreement.

Visa applicants applying under a labour agreement will need to meet skills and experience, English language proficiency, age and other requirements as specified in the applicable labour agreement.

A labour agreement is a formal arrangement negotiated between an employer and the Australian Government and will only be considered where genuine skills shortage exists and there are no suitably qualified or experienced Australians readily available.

Further Information for employers seeking access to a labour agreement is available.

See: www.immi.gov.au/skilled/skilled-workers/la/

Exceptional circumstances versus exemptions

The current permanent employer-sponsored visa categories accommodate unique and unusual applications through the exceptional circumstances provision for age, skill or qualification and English language requirements. This has allowed applicants who were not able meet these criteria to be considered for permanent residence if they could demonstrate exceptional circumstances.

The existing subjective exceptional circumstances provision will be replaced with more objective exemption categories. This reform will provide more clarity and certainty to applicants, while ensuring the visa programs are still able to respond flexibly to unique cases.

There will be exemptions available for age, skills and English language ability in the Temporary Residence and Direct Entry streams. Exemptions will be based on a person’s nominated occupation, salary or the time they have been employed with their nominator.

Concessions sought under a labour agreement must be negotiated in the existing way.

Age exemptions will be available to applicants:

  • nominated in specific occupations where the typical age profile is older due to the specialised or technical nature of their work, for example Minister of Religion and researchers or scientists employed by the Commonwealth Scientific and Industrial Research Organisation (CSIRO) or the Australian Nuclear Science and Technology Organisation (ANSTO) or
  • applying through the Temporary Residence Transition stream and have been employed with their sponsor for the last four years and their salary is at least equivalent to the Fair Work high income threshold (AUD118 100 as at 1 July 2011).

Skill and qualification exemptions will be available to applicants who are:

  • nominated in an occupation where formal academic training is uncommon, such as Ministers of Religion
  • in an occupation where they will be paid executive-level salaries, currently set at AUD250 000
  • scientific and technical specialists employed by Australian universities or scientific research agencies such as CSIRO or ANSTO for research, academic, scientific or other specialist work

English language exemptions will be available to applicants:

  • nominated in an occupation the Minister for Immigration and Citizenship considers is exempt, for instance Ministers of Religion
  • who are a citizen of and hold a valid passport for the United Kingdom, the United States of America, Canada, the Republic of Ireland or New Zealand
  • applying through the Temporary Residence Transition stream and have completed at least five consecutive years of full-time study in a secondary or higher education institution where all of the tuition was delivered in English.
  • People who are unable to meet the higher benchmark for the Direct Entry stream, and are not exempted, will need to obtain a subclass 457 visa. After two years work in Australia, they will be eligible to qualify for the streamlined, fast-tracked, Temporary Residence Transition stream.
    Benefiting regional Australia

In recognition of the complex labour market conditions and limited labour supply available in many regional and remote areas, the RSMS will continue to support regional employers.

An employer located in regional Australia who chooses to use the RSMS will:

  • have access to a broader range of occupations at ANZSCO 1 – 3 skill level occupations
  • have reduced application fees
  • have relaxed skill requirements for prospective migrants such as not requiring them to have extensive work experience in the nominated occupation
  • not have to meet relevant training criteria.

SkillSelect


The changes to the permanent employer-sponsored visa program will coincide with the implementation of SkillSelect on 1 July 2012. SkillSelect is the new skilled migration selection process, based on an expression of interest system, which aligns the best available prospective skilled migration candidates with the fluctuating demands of the labour market.

As part of the introduction of SkillSelect sponsors and visa applicants will be able to apply for the new permanent employer-sponsored visas online.

Further information
More information about the skilled migration program is available on the department’s website. See: www.immi.gov.au/skilled/
If you have a specific question relating to the permanent employer-sponsored visa program reforms you can email the Sponsored Skilled section.

Further information about SkillSelect is available on the department’s website.
See: www.immi.gov.au/skills/skillselect/

Article written by The Department of Immigration and Citizenship, Australia March 2012



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