Employee requirement under Subclass 186 visa
Let us today go through probably one of the most important criteria, for the approval of sc186 visa, a permanent visa for skilled workers without the point test, that often remains either not adequately addressed or not addressed at all for the decision makers at the Department of Home Affairs in many applications and results in the refusal of those applications. Yes, I am talking about the Genuine Position Criterion.
Employers who wish to nominate a foreign employee for ENS Subclass 186 visa, a permanent visa, will be required to evidence that there is a genuine need for an employee to occupy certain position on a permanent and ongoing basis.
This criterion is applicable to Temporary Residence Transition Stream as well as Direct Entry Stream. Let’s first talk about the Temporary Residence Transition Stream.
Temporary Residence Transition Stream (TRTS):
Under this stream, the nominator (the Australian Employer) needs to show a genuine need to employ the person to work in the position under their direct control.
Since implementation of the TSS visa, there is no longer an assumption, or “automatic right” to a pathway to permanent residence, there is a specified genuine need for the nominee to remain employed in the nominated position.
When assessing ‘genuine need’, the Department of Home Affairs will take into accountissues such as:
- establishing that there indeed exists a vacancy for the nominated position, and
- verify claims made in the subclass 457/TSS nomination application pertaining to genuine need where concerns about their validity exist.
There are several evidences that the Department may consider and can help address this criterion.
The application form itself will provide answers to a number of questions associated with the position. For example, length of employment, business structure, industry sector and number of foreign employees employed by the business.
Financial annual reports should provide case officers with insight relating to any increased activity within the business. A small business may consider including evidence of any future expansion (for example, new contracts and projects won).
The Department will also consider whether refusal of the nomination is likely to adversely impact the business. The key is to address the issues to the satisfaction of the Case Officers.
Now, regarding Direct Entry applications:
Threshold for Direct Entry applications is somewhat higher given that an employee (in the eyes of the Department) is largely considered to be untested in the Australian Labour Market by the Department. There are several ways that this can be addressed. However, a strong report on Genuine Position and the Need of the Nominee goes a long way, and we do write them for the clients of migration agents, law firms and our own clients.
Please also note that there are also Specific Direct Entry Requirements:
Let us take a Scenario – such as – Performing activities to lead or assist with the diversification
An example would be where a business that is currently involved in running a restaurant nominates the position of business development manager on the premise that they wish to start up or purchase a number of restaurants.
In this instance, a case officer will need to be satisfied that the business has the intention and the financial capacity to support such business expansion, taking into account any evidence provided, such as:
- evidence of appropriate market research
- business plans detailing proposed expansion and timelines
- financial budgets covering expenditure and anticipated revenue
- evidence of availability of funding (such as own funds or bank loans).
It is strongly advised that Genuine Need for DE applications are supported by submission on behalf of the employer to ensure that all supporting documentation is considered appropriately by the Case Officer.
We may also be able to help in writing such reports or submissions in support of your applications.
– Now another Scenario could be to work within the diversified (new) environment
An example would be a business that is currently involved in running fitness centre and decide to nominate a Chiropractor on the basis that they intend to diversify their business operations.
Decision-makers would need to be satisfied that the business has the capacity and intention to diversify their business activity, taking into account any evidence provided, including:
- business plans including financial budgets covering expenses and anticipated revenue
- availability of business premises (evidence of lease or purchase of proposed location)
- evidence of lease or purchase of equipment
- evidence of availability of funding (such as own funds or bank loans).
Information that may be considered adverse information should also be addressed in order to ensure that full context of the situation is adequately presented.
Please also consider that certain actions by the nominating employer regarding other employees, including Australian workers, in the nominated occupation or similar occupations may be indicative of the nominated position not being genuinely needed:
For example, if there has been,
- retrenchment in the previous 12 months
- reduction of hours worked during the previous 12 months
- reduction in pay and conditions within the previous 12 months
- employment of a temporary visa holder on conditions less favourable than those for Australian employees, or
- recruitment of temporary visa holders beyond the ordinary scope of the operation of the business
Each case will be different, and it is important to ensure that the nature of the business and details about the position are sufficiently presented to the Department, particularly in relation to Direct Entry applications. Other factors, including the size of the business, whether the business has previously nominated an employee for permanent residence under ENS will also be considered by the Department.
Hope this video helps. We, at Migration Centre of Australia, are here to help you prepare your sponsorship, nomination and visa applications and have an established expertise in the subject matter. I have personally written several blogs and CPD papers on various issues pertaining to this visa and have trained hundreds of Registered Migration Agents across the country. If you need to discuss your case or need assistance, I will be more than happy to assist. Please feel free to call me on 02 4626 1002 or send your enquiry to info@migrationcentreofaustralia.com.au
