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?
According to the Department’s website, processing time is around 5-8 months. We think that this is a pretty good estimate of current processing times. However, this is just an indication of current average processing times. The Department’s processing time can be much longer.
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:
- My employer is making me do duties which are not in my nominated role – I do not want to do these tasks
- My employer is not paying me the salary that was specified in my contract and/or visa application
- The ownership of my employing company has changed – I do not get along with the new management / owner
- I have been offered a role with another company and I want to take this
- 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 2 years on a 457 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 2 years of work as a 457 visa holder in the nominated role with your sponsoring employer is just one of the pathways.
Have a read of this post which explains the Temporary Residence Transition Stream (i.e. 2 years of employment as a 457 visa holder) and the pathway under the Direct Entry Stream.
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 visa?
You can only count the duration of your employment as a 457 visa holder (not any other visa). The employment must be with the sponsor for your 186 visa. You cannot count employment with a previous employer.
Your work as a 457 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 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.
Main eligibility requirements for 186 visa
In order to obtain a 186 visa, the visa applicant and the employer will need to satisfy a number of requirements, including the following key requirements:
- Employer will need to satisfy the ‘training benchmark’ requirement, which generally means that it will need to provide training to its Australian citizen and permanent resident employees
- If the visa applicant is applying under the Temporary Residence Transition stream, then the applicant needs to complete 2 years of full-time work as a 457 visa holder
- If the visa applicant is applying under the Direct Entry stream, then generally speaking the visa applicant will need to obtain a positive skill assessment for the nominated occupation and have 3 years of relevant work experience
- Visa applicant needs to make the commitment to work in the nominated role for a period of at least 2 years from the date that permanent residency is granted. The employer will also need to make the commitment to ensure that the role available to the visa applicant for that period
- The role that the visa applicant is nominated to perform needs to align with an eligible occupation on theConsolidated Sponsored Occupation List
- Visa applicant must satisfy the English requirement for this visa, or one of the available exemptions
- Visa applicant’s salary must be consistent with the ‘Australian market rate’ for the nominated role
Please note that the above listed requirements are not the only requirements that the visa applicant and the employer/sponsor need to satisfy in order to obtain a 186 visa. The above does outline the key requirements.
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