SUBCLASS 856 & 121 

The Employer Nomination Scheme (ENS) is for Australian employers to recruit, on a permanent basis, highly skilled staff from overseas or temporary residents currently in Australia, when they have been unable to fill a vacancy from within the Australian labour market or through their own training programs.

The ENS process has two stages:

1. Nomination by an employer;
2. Visa application.

STAGE 1: Nominating Employer

The nominating employer must be able to demonstrate that:

• They are operating a genuine business located in Australia;
• They offer Australian wages and conditions;
• They are committed to training Australian workers to meet long-term needs;
• They have a position requiring the appointment of a highly skilled person*;
• They offer the appointment on a full-time basis for at least three years;
• No Australian citizen or permanent resident can be found for the position (by carrying out labour market testing) or demonstrate that labour market testing is not required in the circumstances of the case.

* Highly Skilled Person

A person has to be highly skilled in relation to the work to be performed. The person is required to complete at least three years formal training or equivalent experience and, unless the appointment is exceptional, the person has been employed in work of that kind for at least three years after completing the period of training or experience. The person must also hold, or be eligible to hold, any qualifications necessary to perform the work in Australia. 

STAGE 2: Visa Application

The Nominee must demonstrate, to the satisfaction of DIMIA that:

• He/She has the skills relevant to the nominated position;
• He/She is “highly skilled”, as defined;
• He/She is under 45 (except in exceptional circumstances);
• He/She has vocational English ;
• He/She meets health and character requirements.

Upon approval of the application, the nominee will be granted a permanent resident visa. 

AUSTRALIAN CITIZENSHIP

To become an Australian citizen a permanent resident must generally have been physically present in Australia as a permanent resident for a total of two years in the last five years. Applicants must also generally have been physically present here for a total of 12 months in the two years immediately before he/she apply.

However, in special circumstances, where a permanent resident’s activities overseas have been of great benefit to Australia, their time overseas can be counted as time in Australia. 

Age requirement:

Applicants must usually be at least 18 years old. Children under 16 may be included in their parent(s) application, or parent(s) may apply on their behalf. Children aged between 16 and 18 should apply in their own right, but they must have the written consent of their parent(s). 

Character requirement:

Applicants must be of good character and must understand the application, unless they are mentally or physically incapacitated. 

Language requirement:

Applicants must usually have a basic knowledge of English. This means applicants must be able to speak and understand it sufficiently to be able to work, to obtain the necessities of life and to demonstrate an understanding of the responsibilities of citizenship. Applicants don’t have to do an English test. Their language ability will be checked when he/she has their interview.

The following people don’t have to have a basic knowledge of English:

• People who have permanent difficulties with speech, hearing or sight or who have a physical or mental incapacity;
• People over the age of 50

Knowledge of rights and responsibilities:

Have an adequate knowledge of the responsibilities and rights of a citizenship. However applicants don’t have to meet this requirement if they are:

• People who have permanent difficulties with speech, hearing or sight or who have a physical or mental incapacity; or
• Aged 60 or over.

FURTHER INFORMATION 

This Information Outline is provided courtesy of Yandell Wright Stell  who are experienced in this area of law. They are located at Level 5, 139 Macquarie Street SYDNEY NSW 2000 or call them on (02) 9252-2278 if you would like more information on the legal topic, or you wish to obtain formal advice regarding your situation.