186 ENS visa – 10 Useful Things to Know

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The below are the 10 most common questions that I receive in relation to the Employer Nomination Scheme Subclass 186 visa.

 

Also, in this post, we outline the eligibility requirements for the 186 visa for the primary visa applicant in detail.

 

1) I’ve lodged my 186 visa application, and the company has lodged the nomination application. How long is it going to take to process?

 

The Department’s processing time for the 187 nomination and visa applications increased significantly in 2017. The Department’s current processing times are approximately:. The Department’s current processing times are approximately:

 

Direct entry stream: 12-18 months or potentially longer depending on the complexity of your application (we do note that the Department’s current processing time varies a lot at the moment. We do tend to find that applications by larger businesses are generally assessed with quicker processing times, perhaps due to the Department having less concerns with such applications in terms of the business’ need for the nominated role, and the business’ capacity to pay the proposed salary)

 

Temporary residency transition stream: 12-18 months or potentially longer depending on the complexity of your application

 

Please note that the above information is only providing estimated processing time information based on our recent experience, and actual processing times will vary for each individual application. Generally speaking, more complicated applications which may have issues satisfying the relevant legal requirements may take the Department longer to assess and decide.

 

Please also see Department website in relation to current processing time information:

 

Stream 75 per cent of applications processed 90 per cent of applications processed
Temporary Residence Transition stream 12 months 13 months
Direct Entry stream 11 months 16 months
Agreement stream Unavailable due to low volume of applications. Unavailable due to low volume of applications.

 

Please do not ask me to predict the processing time for your application, or why there is a long delay with the processing of your application. I honestly do not have an answer for you. If you want an update in relation to your application, you will need to contact the Department.

 

2) Can I contact DIAC or my case officer directly and ask for an update on my application?

 

You can certainly do this. It is your application so even if you have a solicitor or migration agent acting for you. You can call up or email yourself and ask for an update.

 

But do not be surprised if this does not achieve much. Following up with the Department is not going to result in faster processing for your application. It may be difficult to contact your case officer directly, and you may not receive a clear response or any useful information (or any response at all).

 

 

3) I’ve lodged my 186 visa application and/or the company has lodged the nomination application. However, ‘something’ has come up and I don’t think that I will be able to work in the nominated position once the visa is approved. What is going to happen?

 

As part of the application, your sponsor makes the commitment that the nominated position will be available for 2 years on a full-time basis from the date of visa approval. Also, the terms and conditions of your employment cannot exclude the possibility of you extending your employment beyond the initial 2 years.

 

I am going to assume that sponsor has lodged the 186 nomination application and that the Department has not made a decision yet. You may or may not have lodged the 186 visa application. In this situation, if for whatever reason, the nominated position is no longer available, or if your sponsor is no longer able to make the commitment that is outlined above, then your sponsor’s nomination application no longer meets the eligibility requirements for nomination approval. Once your employer has determined that the eligibility requirements are no longer met, the nomination application should be withdrawn (and any associated visa application should also be withdrawn since the visa application cannot be approved without an approved nomination).

 

The above scenario can result from any number of causes, and may not be caused by the visa applicant at all. Below are some examples that I have encountered:

 

a) Due to my sponsor’s business slowing down, my nominated position has been made redundant / my employer is no longer able to provide me with full-time work / my employer cannot make the commitment that the nominated position will be available to me for 2 years from the date of visa approval; and

b) Due to personal circumstances (e.g. illness, situation with family member etc.), I am no longer able to work in the nominated role.

 

The cause can basically be any reason. It may be due to the action or situation of the sponsor, or the visa applicant. The result should be the same though. A ENS 186 visa is a permanent residency visa that is associated with a particular approved nominated position. If the nomination position is no longer available, or if the role no longer meets the eligibility requirements, then the nomination application should be withdrawn.

 

4) I have obtained my 186 visa. However, I need to leave my employer before I have completed 2 years of post visa approval employment. What is going to happen to my visa?

 

I have heard of all sorts of reasons for why people want or need to leave his or her employer. The below are just some examples:

 

  1. My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
  2. My employer is not paying me the salary that was specified in my contract and/or visa application
  3. The ownership of my employing company has changed – I do not get along with the new management / owner
  4. I have been offered a role with another company and I want to take this
  5. My employer no longer needs my services and they have terminated my employment

 

Once you become an Australian permanent resident, the situation does change a bit. Generally speaking, there is nothing from a migration law perspective that can really prevent you from changing your employer or your role.

 

People tend to worry about whether their permanent residency visa will be cancelled if they leave their employer before completing 2 years of employment. But I would say that this generally will not occur unless you have provided the Department with ‘false or misleading information, or bogus documents either knowingly or otherwise’.

 

In my view, even if the Department is informed about your cessation of employment, they will not act to cancel your permanent residency visa unless they are provided with some clear evidence of fraud or misleading behaviour in relation to your visa application.

 

5) Do I need to work for 3 years on a 457 and/or 482 TSS visa in the nominated position before I can apply for a ENS 186 visa?

 

Not necessarily. There are three eligibility pathways which you can satisfy in order to obtain a 186 visa. Completing 3 years of work as a 457 and/or 482 TSS visa holder in the nominated role with your sponsoring employer is just one of the pathways, which is called the Temporary Residence Transition stream.

 

Have a read of this post which explains the Temporary Residence Transition Stream and the pathway under the Direct Entry Stream.

 

The following transitional arrangements only apply if you held a Primary 457 visa, or was applying for a Primary 457 visa, on 18 April 2017:

 

Two years of work as a 457 (and 482 TSS if applicable) visa holder: The primary applicant only needs to have at least two years of full-time work as a 457 and/or 482 TSS visa holder in the last three years under these transitional arrangements. You must complete these two years of work with your sponsoring employer for your 186 nomination and visa applications, and in the nominated role which was approved for your 457 and/or 482 TSS visa. You can also count time on a bridging visa, if you were applying for a 457 or 482 TSS visa application, and you were already the holder of a 457 or 482 TSS visa. You must complete the full two years of work before your sponsoring employer lodges their nomination application, and you lodge your visa application.

 

 

6) For the Temporary Residence Transition Stream, can I count work from another employer, or work that I completed while holding a visa other than a 457 or 482 TSS visa?

 

You can only count the duration of your employment as a 457  or 482 TSS visa holder (not any other visas). The employment must be with the sponsor for your 186 visa. You cannot count employment with a previous employer.

 

Your work as a 457  and/or 482 TSS visa holder must be the same role, or a similar role, as the role that is the subject of the 186 visa application (i.e. you cannot count employment with a different role, even if it is with the employer that is sponsoring you for the 186 visa).

 

7) What is the English language requirement for the 186 visa?

 

I have outlined English language requirement and the available exemptions. This post also covers the English language requirement for included dependents that are over the age of 18 years.

 

8) How much should I be paid if I obtain a 186 visa? What if I am not paid the salary specified in my contract and the nomination application?

 

Have a read of the ‘Market Rate’ requirement. If your sponsor is not paying you the salary specified in my contract and the nomination application, then this is more of a contract law and employment law issue. You can notify the Department, but I am not sure what action, if any, the Department would take in such a situation.

 

 

9) I’m on a 457 or 482 TSS visa. I can submit a 186 visa application without my employer’s sponsorship?

 

No. You must be sponsored by an employer in order to lodge a 186 visa application. You cannot even start the online 186 visa application form until your employer has at least started to prepare the 186 nomination application (you need the reference ID from the nomination application in order to start the visa application).

 

10) Do I need a positive skills assessment outcome for my nominated occupation?

 

You need a positive skills assessment for your nominated occupation if you are applying under the skills assessment pathway of the  Direct Entry Stream.

requirement


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Chris

Hi. I have been on 457 for 3.5 years. My migration agent submitted employer nomination and my visa application for 186 visa. The nomination was refused based on financials. The department assumed my salary was not included in profit and loss but it was. They said the business could not support me for next 2 years, although they have been already paying me the same salary for 3.5 years on 457. The finals also showed profit. I’ve had to withdraw the application as i can’t financially appeal.

Neville Govender

Hi Peng

My company is prepared to nominate me for a 186 . I am currently been one year on a 457 on the same skilled occupation on both. So I have already been reviewed by my peers.
English is my first language and done all my schooling and tertiary education in English
my age was 46 when I got the 457 visa on 31 May 2017
I want to go the direct stream and want to appeal the age as my position is extremely rare for people under 45
Am I able to repeal the age ?

Nagaraja Rao Anumolu

Hi
I came Australia on 400 VISA on 26th Nov2016 after I got 457 Visa till 12 Dec 2018(applied for 457 on 8th Feb 2017), Is I am eligible to 186 visa if my employer is aggred.

Thanks
Naga

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