Visa Options in Australia, the Subclass 121/856 Employer Nomination Scheme Visa

Anyone who is not an Australian or New Zealand citizen, and wishing to work in Australia, must apply for a visa to remain in the country on a legal basis. There are a wide range of visa options available for working migrants. One route in obtaining a visa, but by no means the only option available, is through an employer sponsored work visa.

An Employer sponsored visa can further be classified into one of four categories.

Examples of Sponsored Visas

Firstly there is the Subclass 457 visa, which allows a migrating worker to work for up to four years, after fulfilling various employer sponsored criteria. Then there is the Subclass 418 Educational visa, which allows educators to hold temporary residency, via an Australian educational sponsorship. Thirdly there is the Subclass 119/857 visa, which allows permanent visas for workers wishing to work in regional areas under the Regional Sponsored Migration Scheme. And finally there is the Subclass 121/856 visa, which allows a permanent visa for highly skilled applicants, via the Employer Nomination Scheme.

Subclass 121 / 856 Employer Nomination Scheme Permanent Visas

The Subclass 121 and Subclass 856 visas are essentially the same visa, with the essentially the same visa criteria to be satisfied to be granted the visa. The major difference is that a Subclass 121 applicant would make their application from outside of Australia, whereas a Subclass 856 applicant would make their application whilst living in Australia.

The 121/856 visas are designed for migrants working within highly skilled jobs or professions that are in demand by Australian employers. For an employer to successfully nominate an applicant in their application for a 121/856 visa they must be able to fulfill certain conditions. These include proof of being active and legal operators within Australia, proof of having a genuine need for an employee to fill the vacancy, proof of compliance to all immigration laws, and proof of training provisions for existing Australian employees.

Additionally the position offered by the employer must; be on a full time basis and be available for a minimum three year period, comply to all working conditions under Australian labor laws, correspond to an occupation, on the ENS list of occupations, as published by a Government Gazette Notice, and pay a minimum salary as set by Australian immigration law.

The applicant has a number of pathways for successfully applying for either the subclass 121 or subclass 856 visa. If the applicant has worked full time in Australia for at least 2 years on a 457 visa, including at least 12 months with the nominating employer, then an onshore application can be lodged on this basis.

If the nomination under the subclass 121 / 856 visa application is for a senior executive position with a minimum salary of $165,000, this is also a further pathway for a positive visa application decision.

If the above 2 pathways are not available to you as the Australian visa applicant, then you will need to have your skills assessed by the appropriate assessing authority skills, and have at least three years working experience in that occupation, unless you can establish ‘exceptional circumstances’ to waive the 3 years work experience requirement.

Special circumstances and exemptions from certain criteria relating to an application for a 121/856 visa can be made under age, skills or vocational English ability. An example of this would be an exemption in the 45 to 50 year old age category. For such an applicant, where it can be demonstrated that the position is essential to the operation of the business, or where the employer can demonstrate that it is not possible to find an applicant younger than the 45, and suitably qualified to the standard required in order to satisfactorily fulfill the job responsibilities, a potential application could very possibly be successful.

All applicants for an Australian Subclass 121/856 ENS visa should at least take an initial consultation with specialist Australian immigration lawyers, such as Turner Coulson Immigration Lawyers, to understand the strategies available to them and the strengths and weaknesses of their own specific circumstances. This will ensure that when the application is lodged it is given the strongest possible chances of success.