Employer Sponsored Migration: the ENS and RSMS - an Employer's Guide © gomatilda.com Author: Alan Collett

Much of what is written about the Employer Nomination Scheme (ENS) and the Regional Sponsored Migration Scheme (RSMS) is from an intending employee's perspective.

This article is an employer's guide to the ENS and RSMS, which seeks to look at issues of concern from the perspective of those who are considering filling their skilled vacancies by sponsoring an individual from overseas.

But First - the 457 Visa Program
Employers who are considering sponsoring an individual from overseas often think of the subclass 457 visa at first instance. This is probably because the 457 visa is the category of visa that attracts most publicity in the Australian media - not all of it positive.

Although this article does not discuss the 457 visa program in any detail the following points are relevant in any discussion on the permanent visas available under the ENS and RSMS:

- The 457 visa program requires employers to commit to a number of potentially onerous obligations. These obligations are subject to monitoring by the Department of Immigration, and if found to be in breach of the business sponsor obligations an employer is exposed to the risk of sanctions.

- Under the present Immigration Minister these obligations have been stepped up, and more resources have been committed to the monitoring process. It is then perhaps unsurprising that the number of employers who are prepared to sponsor individuals for visas under the 457 program has been declining in the last year.

- This is not to say that the 457 visa program does not have its place - there are many circumstances where a 457 visa remains suitable, and the tax breaks that are available to 457 visa holders remain attractive.

- However, we believe that there are situations where employers' interests would be better protected if they were to sponsor individuals for visas under the ENS or RSMS, rather than under the 457 program.

Overview of the ENS and the RSMS
The process of a visa being granted under the ENS or the RSMS is fundamentally the same:

- Employer lodges an application with the Department of Immigration for the approval of the skilled position that is being nominated

- Employee applies for the grant of a permanent residency visa

The RSMS has an additional "up front" requirement, whereby the nominated position must also be approved by a delegated "Regional Certifying Body."

The nomination and visa applications are lodged with the relevant Department of Immigration Centre of Excellence.

Employer Requirements - ENS
Under the ENS employers must:

  • be actively and lawfully operating a business in Australia

  • have a genuine need for a paid employee to fill a position in their business

  • follow all relevant Australian laws and have a satisfactory record of meeting immigration laws (if applicable)

  • have a current training strategy for existing Australian employees, or if a newly established business, have a training plan for future training of Australian employees

  • provide the employee with an offer of permanent employment.

The nominated position must:

  • be full-time, ongoing and available for at least 3 years See comments below

  • provide working conditions that are no less favourable than provided for under the relevant Australian legislation and awards

  • be a highly skilled occupation that is on the Employer Nomination Scheme Occupation List (ENSOL)

An employer cannot nominate a position which does not relate to an occupation on the ENSOL.

  • meet the minimum salary level for ENS.

- The minimum salary is:

  • $61,920 for the following occupations:

    • 2231-11 Systems Manager

    • 2231-13 Systems Designer

    • 2231-15 Software Designer

    • 2231-17 Applications and Analyst Programmer

    • 2231-19 Systems Programmer

    • 2231-21 Computer Systems Auditor

    • 2231-79 Computing Professionals (not elsewhere classified)

  • $45,220 for all other gazetted occupations.

The minimum salary levels are for gross annual salary and must not include:

  • accommodation or rental assistance, board, upkeep, meals or entertainment

  • incentives, bonuses or commissions

  • shares or bonus shares

  • travel, holidays, health care/insurance

  • vehicles or vehicle allowances

  • communications packages

  • Living Away From Home Allowance

  • superannuation contributions (either voluntary employee or compulsory employer contributions)

  • any other non-salary benefits not included in the above, with the exception of Medicare rebates.

Employers can offer any of these benefits to employees provided they are above and beyond the minimum salary.

- Subject to certain exemptions, employees must meet one of the following three requirements:

  • have worked full-time in Australia in the nominated occupation on a Subclass 418, 421, 422, 428, 444, 457 or 461 temporary residence visa for the last two years prior to the visa application being made (including at least the last 12 months with the nominating employer)

  • have been nominated to fill a highly paid senior executive position with a salary of more than $165 000 per annum (excluding superannuation or allowances)

  • have had skills assessed as suitable by the relevant skills assessing authority and, unless exceptional circumstances apply, have at least three years full-time work experience in the occupation before the visa application is lodged. A list of assessing bodies can be found in the Employer Nomination Scheme Occupation List (see the link above).

- Visa applicants must also:

  • demonstrate the appropriate skills, qualifications and/or experience to fill the position

  • meet any mandatory licensing, registration or professional membership requirements which allow work unsupervised and without further training

  • be under 45 years of age

  • provide a letter of appointment or a contract signed by both parties

  • have vocational English language ability.

Employer Requirements - RSMS
Under the RSMS employers must:

  • be actively and lawfully operating a business in regional Australia (as defined)

  • have a genuine need for a paid employee to fill a full time position in their business that is expected to be available for at least 2 years

  • follow all relevant Australian laws and have a satisfactory record of meeting immigration laws (if applicable)

- The nominated position must:

  • be full-time, ongoing and available for at least 2 years

  • require a person with qualifications equivalent to at least Australian diploma level (unless exceptional circumstances apply)

Note: A trade certificate with a full apprenticeship is accepted as equivalent to (or higher than) a diploma qualification.

- Visa applicants must also:

  • meet any mandatory licensing, registration or professional membership requirements which allow work unsupervised and without further training

  • be under 45 years of age

  • have functional English language ability

Employer Obligations
Unlike the 457 program, employer obligations when sponsoring an employee under the ENS or the RSMS are limited.

In short, an employer who sponsors an individual for permanent residency under the ENS or the RSMS is simply required to comply with all relevant Australian standards and workplace legislation for wages and working conditions.

There is also no formal employer monitoring regime under the ENS or RSMS.

Typical Employer Concerns - and Our Thoughts
Here are several concerns which have been raised with Go Matilda in the past by employers who are considering sponsoring individuals for permanent residency under the ENS or RSMS (our comments are in italics):

  • "Visa application processing times are much longer than applying for a 457 visa": A year ago we would have concurred with this sentiment. However, new requirements affecting the 457 program which have been introduced by the Immigration Minister in the last few months are causing difficulties in interpretation at Department of Immigration Business Centres, and processing times for 457 visa applications are reflecting this.

    By contrast, nomination and visa applications under the ENS and the RSMS are required to be processed as a priority as a result of the Immigration Minister's priority processing directive that was issued on 23/09/2009.

    This is reaffirmed by our recent experiences with ENS and RSMS applications: we are seeing nomination and visa applications being assessed by case officers within a week of their delivery to the relevant Centre of Excellence, and often on the day following their delivery.

  • "The 457 program allows me to retain sponsored employees; I do not want a sponsored employee to walk away within a few weeks if s/he is granted a permanent residency visa after I have spent time and money helping him/her move to Australia": A suitably drafted contract of employment can incorporate suitable financial incentives for an ENS or RSMS sponsored employee to remain with the employer.

    For example, the contract might include a provision such that a proportion of costs incurred by the employer will be repaid to the employer in the event that the sponsored employee departs within (say) 6 months.

    This provision might also be subject to a sliding scale of clawback. For example, 100% of costs if employment ends within 6 months; 75% in 6 to 12 months; 50% in 12 to 18 months; 25% in 18 to 24 months; nil thereafter.

  • "I don't want to pay for the costs of the visa application": Many prospective employees are happy to help in this regard, either by paying for the visa application charges, or by entering into a salary sacrifice arrangement whereby the costs of the visa application are paid by the employer and recovered through a reduction in the employee's salary.

  • "I am required to commit to employing the sponsored employee for 3 years (ENS)/2 years (RSMS). What happens if the employment doesn't work out, or if the business falls upon hard times financially": It is indeed the case that the Department of Immigration will expect to see the nominated position being full time, and available for the required 3 (ENS)/2 (RSMS) years.

    However, the contract of employment or letter offering employment to the sponsored individual does not have to be of a finite duration - ie it need not be a fixed term contract. Rather, it can be open ended as to the duration of the employment.

    Should the employer subsequently wish to terminate the employment, there are no directly applicable provisions in the migration legislation that require the employer to hold the position open for the 3/2 year period.

    Note though that a failure to comply with previous 457 business sponsor obligations, or adverse information about an employer's conduct may preclude the employer from nominating a position under the ENS or RSMS in the future.

Summary
We feel sure there are many employers in Australia who are presently sponsoring individuals under the 457 program who would reduce the financial exposure arising from their business sponsor obligations by sponsoring those same employees for visas under the ENS or RSMS.

Similarly, employers who have identified skilled individuals who presently reside overseas but who are reluctant to relocate because of the prospective employees' desire to secure the comfort of permanent residency are likely to find vacancies more easily filled if permanent residency is facilitated through the ENS or RSMS.

In short, an employer who is happy to facilitate permanent residency under the ENS or the RSMS can generate a win/win position for both parties.

457 and PR Visa Employer Sponsors

457 Visa Assistance has established a 457 Visa Assistance Skills Matching Database for current and potential Employers, both Private & Government.

The 457 Visa Assistance Skills Matching Database allows Potential Employers to search for eligible Applicants who wish to obtain Permanent Australian Residency and work in Australia.

The employers 457 Visa Assistance provides overseas workers for are predominantly Australian Companies and Government Organisations who sponsor suitable applicants for Permanent Residency.

457 Visa Assistance constantly reviews the various Government and private organisations for their current Migration and Skills Recruitment Programs.

Australian Companies and State Government's are willing to sponsor people wishing to live permanently in Australia, providing they have the skill, qualifications and experience required for the positions.

These positions are suitable for people wishing to move from a 457 visa to a Permanent Residents Visa or Permanent Australian Residency.

For example listed below is one State Government’s list for Skilled Sponsored (Migrant) Visa (Subclass 176):-

  • Engineering Managers
    1221-11 Engineering Manager

  • Production Managers
    1222-13 Production Manager (Mining)

  • Civil Engineers
    2124-11 Civil Engineer

  • Electrical and Electronics Engineers
    2125-11 Electrical Engineer

  • Mining and Materials Engineers
    2127-11 Mining Engineer (excluding Petroleum)
    2127-13 Petroleum Engineer

  • Computing Professionals
    2231-79 Specialising in .Net technologies
    2231-79 Specialising in GIS
    2231-79 Specialising in HP UX
    2231-79 Specialising in Linux
    2231-79 Specialising in Solaris
    2231-79 Specialising in C++/C#/C
    2231-79 Specialising in Oracle
    2231-79 Specialising in PeopleSoft
    2231-79 Specialising in SAP
    2231-79 Specialising in SIEBEL (especially Siebel Analytic)
    2231-79 Specialising in Unix

  • Generalist Medical Practitioners
    2311-11 General Medical Practitioner

  • Specialist Medical Practitioners
    2312-11 Anaesthetist
    2312-13 Dermatologist
    2312-15 Emergency Medicine Specialist
    2312-17 Obstetrician and Gynaecologist
    2312-19 Ophthalmologist
    2312-21 Paediatrician
    2312-23 Pathologist
    2312-25 Specialist Physician
    2312-27 Psychiatrist
    2312-29 Radiologist
    2312-31 Surgeon
    2312-79 Specialist Medical Practitioners (not elsewhere classified)

  • Registered Nurses
    2323-11 Registered Nurses

  • Registered Midwives
    2324-11 Registered Midwife

  • Registered Mental Health Nurses
    2325-11 Registered Mental Health Nurse

  • Registered Developmental Disability Nurses
    2326-11 Registered Developmental Disability Nurse

  • Pharmacists
    2382-11 Hospital Pharmacist
    2382-15 Retail Pharmacist

  • Occupational Therapists
    2383-11 Occupational Therapist

  • Physiotherapists
    2385-11 Physiotherapists

  • Speech Pathologists
    2386-11 Speech Pathologist

  • Medical Imaging Professionals
    2391-11 Medical Diagnostic Radiographer
    2391-13 Radiation Therapist
    2391-15 Nuclear Medicine Technologist
    2391-17 Sonographer

If you are looking to move from a 457 visa to permanent residency why don’t you use the services of 457 Visa Assistance.

457 Visa Assistance can do all the research for you and help you with the right advice for your particular needs, helping you obtain Australian Permanent Residency.

457 Visa Help Chart

Employer Nomination Scheme (ENS)/Regional Sponsored Migration Scheme (RSMS) – Decision Ready Application Processing Frequently Asked Questions (FAQ’s)

To reduce processing times for applications under the ENS and RSMS, one initiative has been to provide Registered Migration Agents (RMA’s) with the capacity to certify their applications as ‘decision ready’ to enable access to priority allocation.

Q. How long should I expect to wait before I hear something from a case officer?

Generally you should be contacted within 18 calendar days of lodgement. If you have not heard anything beyond acknowledgement of receipt of a ‘decision ready’ application you should wait for 18 calendar days to expire before following up the status of the application.

Q. How long does it take to finalise cases that are certified as ‘decision ready’?

The bulk of ‘decision ready’ cases are finalised within two to four weeks of receipt. Although ‘decision ready’ ensures early allocation and assessment it does not necessarily mean a quick decision. Although the reality is most do end up being decided quickly, it may be the case that the case officer determines that further enquiries are necessary.

© immi.gov.au