The Subclass 856 Employer Nomination Scheme visa (Subclass 856 visa) is an employer nominated permanent residence visa which once granted provides the employee with unlimited work and residence rights. The employee may include family members on the visa, including de facto and same sex partners. The Department of Immigration and Citizenship has very recently announced significant changes to the employer nomination scheme effective 1 July 2012, including a change in subclass number. These changes will apply to any new applications lodged on or after this date.

Current Requirements:

There are currently three pathways to eligibility under the Subclass 856 visa:

Pathway 1

The applicant has worked in Australia on a prescribed visa (e.g. a Subclass 457 visa) for the last two years, with the last 12 months under the direct employment of their nominating employer; or

Pathway 2   

The applicant is earning or being offered an annual base salary of AU$250,000 or more; or

Pathway 3

The applicant has obtained a positive skills assessment in their nominated occupation and can demonstrate three years relevant experience. Applicants for this visa must be under the age of 45. Applicants over the age of 45 must demonstrate exceptional circumstances in order to receive an 'age exemption'. While there are a number of factors to be considered in granting this exemption, applicants in senior positions with specialised knowledge and skills which are not readily available in the Australian labour market are typically on the right course to meeting this exemption.

All applicants must meet the applicable English language requirements for the visa. The required level of ability and supporting documentation varies according to the nationality of the applicant and whether the applicant is a primary applicant (that is, the employee) or a secondary applicant (an accompanying family member). Currently, primary applicants must provide an International English Language Testing System (IELTS) test score of at least five in each of the four test components of reading, writing, listening and speaking.

Applicants from official English speaking countries such as the United Kingdom and Canada are considered to immediately meet the English language requirement and therefore IELTS testing is not required.

Proposed Reforms Effective 1 July 2012

The reforms aim to respond to current economic and labour market conditions while also attempting to align the scheme with the changes that took place to the Subclass 457 visa program in September 2009.

Applicants for the newly named Subclass 186 Employer Nomination Scheme visa (Subclass 186 visa) must apply under one of the three below visa streams:

Stream 1  

The Temporary Residence Transition Stream is available only to Subclass 457 visa holding applicants who have worked for their nominating employer for at least two years in the same or a closely aligned position during this period.

An average IELTS score of five will suffice under this stream. Exemptions are available depending on nationality or previous study in English.

Stream 2

The Direct Entry Stream is available to applicants who are unable to meet Stream 1 requirements as they may be outside Australia or in Australia on another type of visa. Applicants must provide a positive skills assessment and show evidence of three years employment experience. Exemptions may be available to employees earning executive level salaries of AU$250,000 or more.

Applicants under this stream have a higher English language threshold and are expected to achieve an IELTS score of six in each of the four components, unless exempt.

Stream 3   

The Agreements Stream if for applicants sponsored under Labour Agreements or Regional Migration Agreements.

The maximum age requirement will increase from 45 to 50 and age exemptions will apply to certain applicants on Subclass 457 visas or applicants in particular occupations.

From 1 July, there will also be a requirement in line with the Subclass 457 visa program to demonstrate that the applicant is being offered equivalent terms and conditions of employment as what would be offered to an Australian employee in a similar position (the 'market rate' requirement).

Nominating employers from this date will also have to meet specific training requirements in relation to their existing Australian staff in order to be eligible to nominate applicants under this scheme. This requirement is currently reflected in the Subclass 457 visa program.

Subclass 155 Resident Return Visa - Recent Changes

From 15 February 2012 applicants for the Subclass 155 Resident Return Visa (Subclass 155 visa) will only be granted a visa period of 12 months in instances where they cannot demonstrate two years permanent residence in Australia within the previous five years. This is a significant reduction in the visa period which previously allowed a further five year travel facility on approval.

Applicants who are unable to meet the two years residence requirement must show substantial business, employment, cultural or personal ties to Australia which are of benefit to Australia. For example, applicants with an Australian citizen or permanent resident spouse or children living in Australia will be considered to have substantial personal ties.

Background

The Subclass 155 visa is a permanent residence visa available to Australian permanent residents seeking to renew their existing permanent visa. Permanent residents who have been residing in Australia for at least two years within the last five years may be granted this visa with minimal documentary requirements. Such applicants will also be granted a further five year travel facility and there is no requirement to demonstrate substantial ties to Australia.