ENS for 457 Holders

By Mark Webster
Thursday, 26 June 2014

People who have worked in Australia on a 457 visa for two years may be eligible to apply for permanent residence through the Employer Nomination Scheme (ENS). This pathway is called the Temporary Residence Transition Stream (TRT Stream).

This is one of the most common pathways to permanent residence and has a lot of benefits. However, the devil is in the detail and there are many additional criteria which need to be met.

For instance, if the legal structure of your employer changes during the 2 years, this can mean that you may not be eligible for ENS. Policy changes due to come into effect on 1 July make it easier for people to qualify if the business they work for is sold during the 2 years prior to applying for ENS.

Below is a brief overview of some of the main criteria and some of the common pitfalls encountered in applying for the ENS Temporary Residence Transition Stream.

Worked in the Position for at least 2 of the last 3 Years

To qualify for ENS through the Temporary Residence Transition Stream, you must have been employed:

Full time: this means at least 35 hours per week under policy
In Australia: short periods of absence (eg for training or business meetings) are generally OK, so long as your employment is still based in Australia
In the position for which you hold the 457 visa
For at least 2 of the last 3 years, excluding any periods of unpaid leave

Whilst there is no Skilled Occupations List for the ENS Temporary Residence Transition Stream, your occupation must be in the same ANZSCO 4-digit occupation unit group code as for your 457 visa. Theoretically, this may mean that you can change occupation between 457 and ENS, so long as it is closely related. In practice, it would then be difficult to show that you were working in the same position if you did change occupation.

Leave

If you have taken leave in the last 3 years, there is a possibility that this time may not count towards the 2 year work requirement. Below is a general rule of thumb:

Unpaid Leave: does not count towards the 2 year requirement
Paid Leave: such as annual leave, sick leave and paid maternity leave would generally count towards the 2 years

Visa Held

To qualify for the TRT stream, you must have held a 457 visa for at least 2 of the last 3 years prior to application. You must also hold a 457 visa when you apply.

This can become more complicated where:

You held a Bridging Visa within the last three years: in this case, you can count time spent on a bridging visa if you held a 457 and extended onto a further 457, but not if you held a different visa (eg working holiday visa) and applied for a 457 visa.
You held a 457 visa as a dependent: whilst there is no clear Departmental policy on this point, there appears to be nothing in the legislation preventing a person from counting time spent on a dependent 457 towards the 2 year requirement

457 Sponsorship

You must be nominated for the 457 visa you hold at the time you apply by the same employer which is nominating you for the ENS visa.

For instance, suppose you were sponsored by ABC Co for your 457 visa, but are now employed by XYZ Co, a subsidiary of ABC. This is relatively common and is allowed on your 457 visa because ABC and XYZ are "associated entities". If you now wish to apply for ENS, your 457 visa needs to be transferred across from ABC to XYZ. This may involve XYZ applying for approval as a Standard Business Sponsor and a new nomination would need to be lodged. You could only apply for the ENS visa once these processes had been completed.

What if the Employer Changes?

If you change employer during the last 2 years, you would not in general be eligible for ENS through the TRT Stream.

There are a couple of exceptions to this though:

Associated Entity: if your employment is with a parent, subsidiary or sister company of your current sponsor, then it is still possible to count this work experience towards the 2 year requirement
Business Sale: if the business was purchased in the last 2 years, but you are still doing the same role and have the same management structure, you can still count your work experience towards the 2 year requirement. This is a significant change of policy which will take effect from 1 July 2014

Note that the ENS employer must be the employer you currently hold the 457 visa through - this may require a new SBS approval and nomination as noted above.

Is there a Minimum Salary Level?

Unlike the 457 visa, there is no minimum salary level for ENS. However, you must still show that the terms and conditions of your employment are no less favourable than would apply to an Australian Permanent Resident or Citizen working in an equivalent position at the same location. In practice, this means that an ENS may be possible even if the base salary is less than TSMIT, but you would need to show that you are being paid at the market rate.

How Long Do I Need to Work for the Employer after Approval?

The position needs to be available to you for a period of at least 2 years, and it needs to be a full time position. If you are on a fixed term contract of less than 2 years, then this would mean you could not apply for ENS. Otherwise, if you have a permanent full time position, this requirement would be met.

We are often asked about whether this means that the employee or employer are then committed to an employment relationship for at least 2 years from when the ENS is approved. The short answer is that the normal employment laws apply after ENS approval - both in terms of an employee giving the employer notice or the unfair dismissal laws if the employer terminates the contract.

It is very unusual for an ENS visa to be cancelled after grant, even if the employee does not remain with the employer for 2 years. However, cancellation is still a possibility if you give false or misleading information in your visa application. For instance, if it is clear from your conduct after grant that you had no intention of remaining with the employer for 2 years, the employer may complain to the Department of Immigration, and Immigration may consider cancelling your ENS visa.

English

You would need to show Vocational English to qualify for ENS through the TRT Stream. This would mean one of the following:

Passport from the UK, USA, Ireland, Canada, New Zealand
Score of at least 5 in each of the 4 components of IELTS
B Pass in the Occupational English Test (OET)

You would also be exempt in the following circumstances:

If you are nominated as a Minister of Religion
If you are a high salary earner - minimum base of $180,000
You have undertaken at least 5 years of study in English medium at the secondary level or higher - this only applies to the TRT stream

Age

You would generally need to be under 50 at the date you apply for your ENS visa. If you turn 50 during processing of the ENS visa, that is OK, providing you were under 50 when you applied.

If you are over 50, you can be exempt from the usual age limit in the following circumstances:

If you are nominated as a Minister of Reigion
If you are nominated to fill a senior academic or research position with a government organisation
If you have worked in Australia on a 457 for your employer for at least the last 4 years and you have been a high salary earner for the entire period - the relevant salary level is $133,000 from 1 July 2014

If you are over 50, and are eligible for one of the exemptions listed above, there is no maximum age limit.

Employer Training Requirement

For you to qualify for an ENS visa, your employer must provide evidence that they have complied with their 457 training obligation.

This involves the employer providing evidence of training expenditure for the entire period of the current SBS approval.

Do I Need to Stay with the Employer on my 457 for 2 Years Before Applying for ENS?

The TRT Stream is not the only way to apply for ENS. One alternative is to apply via the Direct Entry Stream. To qualify for this stream, you would need to:

Pass skills assessment in your occupation: requirements depend on your occupation and would generally involve evidence of your qualifications, work experience, English language ability and may require registration in Australia
Show that you have at least 3 years of work experience in your occupation
Show a higher level of English: in this case, Competent English which requires at least 6 in each band of IELTS

If you are eligible for the Direct Entry Stream, you don't need to wait until you have held your 457 for 2 years to apply.

You may also be eligible for General Skilled Migration - this is a points tested visa which does not require sponsorship by an employer.

Conclusion

ENS through the Temporary Residence Transition Stream is an attractive option for many applicants on 457 visas.

Whilst the concept may sound simple, there is a fair amount of complexity in the Migration Regulations for this stream.

If you would like assistance with an ENS application, please book a consultation with one of your migration advisors.