Where an employer is unable to fill a position in their business by sourcing an appropriately skilled Australian from the local employment market, they may be able to sponsor or nominate an overseas worker to fill the vacancy through an employer sponsored visa or an employer nominated visa.

Employer Sponsored Visa

Applying to sponsor an overseas worker is a three-stage process, involving a sponsorship, nomination and visa application (note that the sponsorship approval last for five years and therefore only needs to be re-applied for upon expiry).

A key requirement for nomination approval under the Subclass 482 Temporary Skill Shortage (TSS) visa programme is that the position associated with the nominated occupation is genuine.

Note: The Subclass 482 visa replaced the Subclass 457 Temporary Work (Skilled) visa on 18 March 2018. Special rules apply to visa applicants who held a Subclass 457 Temporary Work (Skilled) visa or a Bridging visa associated with a 457 visa on 18 April 2017. These transitional arrangements are designed to ensure that employer sponsored visa 457 holders who held this visa before the changes were announced will, in certain circumstances, remain eligible for an employer nominated visa under the TRT stream as outlined below.

Employer Nominated Visa

To nominate an overseas employee requires two applications to be lodged with the Department of Home Affairs (the Department); the nomination application by the employer/business, as well as a separate application for the visa (lodged by the visa applicant).

As with the employer sponsored visa 482 noted above, under the Subclass 186 Employer Nomination Scheme (ENS) visa programme, nomination approval requires there to be a genuine need for the nominee to be employed in the position, under the direct control of the nominator. This requirement applies to both Temporary Residence Transition (TRT) and Direct Entry stream applications for the employer sponsored visa 186.

Note: The Subclass 494 Skilled Employer Sponsored Regional (Provisional) visa replaced the Subclass 187 Regional Sponsored Migration Scheme (RSMS) visa on 16 November 2019. Like the Subclass 186 visa, the RSMS visa programme for the employer sponsored visa 187 also required an employer nomination. The genuine position requirement now applies to nominations under the Subclass 494 visa programme in a similar way to the TSS visa programme. These requirements are outlined below.

The Impact Of The COVID-19 Pandemic

The genuine position and genuine need criteria are now even more critical and a key point of scrutiny for the Department when it considers whether to approve a nomination, due to the impacts of the COVID-19 pandemic, and its focus on prioritising Australian workers in this climate of higher unemployment.

Let us now examine in more detail the genuine position requirement as it applies to the employer sponsored visa.

Employer Sponsored TSS Visa

The genuine position criterion is designed to prevent a business from artificially creating a position to, for example, enable the nominee (who might be a family member) to gain an employer sponsored visa to Australia, rather than by pursuing a more appropriate visa pathway. A business could also seek to nominate a position which, in reality, does not align with the occupation as described in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) to again, facilitate the entry of a person to Australia other than by more appropriate means.

Note: For migration law purposes, each nominated occupation is defined based on the ANZSCO, which is a system used to classify all occupations in the Australian labour market. The ANZSCO data provides a general description of each occupation, the skill level (which specifies minimum qualifications and/or work experience requirements), registration and/or licensing requirements (where applicable) and a list of tasks and duties that may be required to be performed as part of each occupation. Each classified occupation is assigned an ANZSCO code to identify it. You can read more about the ANZSCO in our article on the South Australia DAMA.

According to Immigration policy, the Department will pay particular attention to nomination applications which are made by a business which either currently employs, or has previously employed (in recent times), Australian workers in the same or similar occupations.

The Department will look to the following factors which may indicate a non-genuine position:

  • retrenchments made in the previous 12 months;
  • a decrease in hours worked by Australian employees within the last 12 months;
  • a decrease in pay and conditions of Australian workers within the previous 12 months;
  • employment of temporary visa holder/s on less favourable conditions compared with Australian workers; and
  • hiring of temporary visa holder/s which extends beyond the ordinary scope of the business.

Factors which are more likely to support the existence of a genuine position and would therefore lead to less attention by the Department include instances where:

  • the position is highly skilled with specific tasks outlined in ANZSCO;
  • the position fits clearly within the scope of the business’ activities;
  • the evidence demonstrates that new position/s are required by the business;
  • evidence is provided in respect of a previous employee in the position;
  • the evidence demonstrates that the position has been advertised and filled through a transparent recruitment process.

Factors Which Support A Genuine Position

Immigration policy notes that the below factors would add support to the position associated with the nominated occupation for an employer sponsored visa 482 being genuine:

  • The position is highly skilled position specific tasks outlined in ANZSCO (as compared with a more general and less defined role). Note also that the actual duties to be performed in the position is the important factor here, not the position title;
  • The position fits clearly within the scope of the business’ activities;
  • The evidence provided demonstrates that new positions are required by the business;
  • Evidence is provided in relation to a previous worker employed in the position;
  • The evidence shows that the position been advertised and filled through a transparent recruitment process;
  • Evidence is provided which shows that the business has confirmed if the nominee is eligible for any licensing and/or registration requirements to perform the occupation.

Factors Which Support A Non-Genuine Position

Under immigration policy, factors which suggest that the position associated with the nominated occupation is not genuine include:

  • Evidence suggests that the industry in which the business operates is in decline;
  • There is average or higher unemployment in the nominated occupation and/or industry;
  • In relation to employees in the nominated (or similar) occupation, the business has:
  • Retrenched workers in the last 12 months;
  • Reduced work hours in the last 12 months;
  • Reduced pay and conditions in the last 12 months; and/or
  • Employed a temporary visa holder on favourable which are less favourable than those that apply to Australian employees.
  • The sponsor is a small business with multiple Subclass 457 or TSS visa holders or other temporary foreign workers in similar positions and/or the sponsor has no, or very few, Australian employees;
  • The nominated positions are manager roles and the nominated salary is at the lower end of the market salary rate range;
  • The nominated occupation has broad generic tasks (under ANZSCO) and/or the Department has previously identified sponsors using the occupation so as to sponsor workers under the Subclass 457 or TSS visa programme on an inappropriate basis;
  • Inconsistent information is provided in relation to the tasks for the nominated position and/or they do not align with ANZSCO.

Please note that where one or more of the above factors are present, it will not automatically result in a nomination refusal. Rather, these are indicators that may warrant further enquiry and scrutiny by the Department to ensure that the genuine position criterion is satisfied. Immigration policy specifically states that nominations meeting the regulatory criteria must be approved.

Further Assessment of Genuine Position

The Department may assess a nomination application for an employer sponsored visa further in respect of the genuine position criterion where it has doubts as to the claims made by the business in respect of the above, and where the information suggests:

  • the position may have been created to secure a migration outcome;
  • the tasks of the position do not substantially align with the tasks of the nominated occupation as described in ANZSCO; or
  • the position might not be consistent with the nature of the business.

Let us now take a more detailed look at the above factors.

Position Created To Secure A Migration Outcome

This element is concerned with ensuring that the position has not been created to facilitate the entry or stay of the nominee in Australia. Factors which may point to this include where:

  • The nominee is related to, or is a personal associate of an officer of the business;
  • The nominee is a director or owner of the business;
  • The nominee is currently in Australia and already working for the sponsor and the nominee’s immigration history in Australia suggests that their primary motive is to stay in Australia on any type of visa;
  • The business has been in existence for a very short period;
  • The nominated salary is significantly lower than industry standards, or is above AUD$250,000 and this does not align with labour market conditions;
  • The business has a relatively small turnover and it might therefore difficult to support the number of proposed employees at the business with the nominated salary;
  • The business does not employ any, or very few, Australian employees;
  • There is evidence that the business may have either received, or will receive, payment from the nominee for lodging the nomination.

Be aware that despite the above, ‘self-sponsorship’ may still be permitted, provided there is another reason for the position to be filled.

The creation of genuine economic benefit to Australia may also result in a nomination being approved, despite the above.

Tasks Of The Position Do Not Align With The Nominated Occupation

For a nomination to be approved, the tasks of the position must be equivalent, or substantially equivalent, to the tasks listed in ANZSCO for the nominated occupation.

In its assessment, the Department will consider whether the nominee is likely to complete the stated tasks, by looking at the supporting evidence provided and the business context of where the position will be based including:

  • the location of the position;
  • where the position fits within the organisational structure of the business;
  • the proposed tasks to be completed; and
  • the tasks performed by current employees of the business.

This is to ensure that the nominee will not primarily be performing duties at a lower skill level than the nominated occupation.

Position Is Not Consistent With The Nature Of The Business

Factors which may lead to further scrutiny in this regard include instances where:

  • the scope of the activities of the business do not encompass the duties of the nominated occupation and therefore, it appears unlikely that the nominee will actually be performing the tasks as specified in the application;
  • the size or turnover of the business do not appear to support such a position.

Employer Nomination Scheme (ENS)

In assessing whether the genuine need criterion is satisfied in relation to the ENS visa nomination application, the Department will examine the nature of the business and its employment structure, in addition to the following factors:

  • whether the employer has attempted to recruit an Australian worker for the position, including via advertising;
  • if the information provided identifies and supports a genuine need for the employer to hire the nominee for the position, based on:
  • the nature and scope of the business activities (including likely impact on the business should the application be refused, and if information exists that points ti the industry being in decline); and
  • in relation to the position, whether it:
  • continues to fit within the regular and ongoing business activity of the employer;
  • has changed over time;
  • continues to genuinely be needed in the regular, ongoing business activity of the employer;
  • contributes to maintaining or increasing the volume/quality of business outputs; and
  • is relevant to the proposed business activity.

Under immigration policy, the following factors (in relation to other employees in the nominated position or in similar occupations) may indicate that the nominated position in respect of an employer nominated visa is not genuinely needed:

  • retrenchments made in the previous 12 months;
  • a decrease in hours worked within the last 12 months;
  • a decrease in pay and conditions within the previous 12 months;
  • employment of temporary visa holder/s on less favourable conditions compared with Australian workers; and
  • hiring of temporary visa holder/s which extends beyond the ordinary scope of the business.

The following additional considerations apply to Direct Entry applications under the ENS programme:

  • any demonstrated increases in business activity;
  • any demonstrated plans for future expansion;
  • overtime being completed by employees to fill the vacant position;
  • the position has existed and been previously occupied but has become vacant through attrition;
  • evidence the position can only be filled by a foreign worker;
  • is currently occupied by a temporary resident

Get More Information

you can read more about the employer sponsored visa and employer nominated visa in our article on Australian Skilled Migration Visa List.

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Contact us to book a no-obligation consultation to find out more about the genuine need and genuine position requirement for employer sponsored and nominated visas to Australia.

Sources/Links

Australian Bureau of Statistics – 1220.0 – ANZSCO – Australian and New Zealand Standard Classification of Occupations, First Edition, Revision 1

https://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/1220.0Search0First%20Edition,%20Revision%201