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14th January 2013
Volume 230

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In This Issue
The ENS visa revisited
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In this issue we cover the Employer Nomination Scheme visa subclass which received many revisions from DIAC last year. Some of these alterations are very important so if you haven't read about the ENS program for a while and it is the visa you may use one day, then read on carefully.

The ENS visa is complicated so we have spit up the coverage into a number of parts for you collect. Part 2 will follow next weekend.


The ENS visa revisited 


Part 1 - The Applicant


In broad terms the Employer Nomination Scheme (ENS) is relatively simple, you need a business in Australia to sponsor you and the visa you obtain from this sponsorship is Permanent Residence. Private individuals cannot sponsor for this visa, hence the term "employer".


It has now been divided into 3 distinct streams; Temporary Residence Transition, Direct Entry and Agreement. We will outline the important parts for each being the applicant for an ENS visa.


Temporary Residence Transition (TRT)


If you have been sponsored and hold a 457 visa for the last two years then this is most likely the stream for you. Those who have gone through the process of being sponsored by an employer under the 457 temporary residence visa system will have a very good idea of what sponsorship is all about and also their employer will be well versed to prepare for the permanent residency ENS visa. The type of documentation the business and the applicant needs to provide is very similar to the process for the 457 visa. In fact in our opinion it is simpler for there is no need to prove the market salary rate as is necessary for the 457 approval.


DIAC is looking for those who have already been sponsored by their employer for the last two years and now the same employer is going to sponsor them for permanent residency. As DIAC states in one section of it's guidelines;


"the Temporary Residence Transition stream is for subclass 457 visa holders who have worked for their employer for at least the last 2 years and the employer wants to offer them a permanent position in that same occupation"


In another section of PAM's it sates;


"The Temporary Residence Transition stream provides a streamlined pathway to employer sponsored permanent residence for persons who have been employed by the nominating employer in the nominated occupation for at least 2 years in the period of 3 years immediately before the nomination."


We mention this for we get many enquiries from those on a 457 visa for the last two years and they have a business willing to sponsor them, however they have only worked for this sponsor for the last twelve months or so. The old ENS visa did allow to split up the two years of being on a 457 visa with different employers as long as in the last twelve months before applying you had worked for the employer sponsoring for you on the ENS visa. The new guidelines definitely are looking for two years with the same employer sponsoring for the ENS visa, so be careful.


The other component is that these two years of employment must have been in the same occupation that they are being nominated in the ENS visa. There are slight variations of different ANZSCO codes permitted if they fall within the same occupation group however caution is advised to be sure if the variation is permitted.


It is important to mention here that the rules for


A formal skill assessment is not necessary for the TRT stream for DIAC accepts if you have been employed for the last two years in Australia for the company that is sponsoring you then is a reasonable assumption that the applicant has the skills required for the job.


For most occupations the English requirement is the "Competent Level". There are exemptions to accept a lower English ability for the occupations listed here.


Direct Entry (DE)


This stream is designed for applicants who yer while they are in Australia but either have not spent 2 years on their 457 visa with the sponsoring employer or may hold some other visa such a student or graduate visa or may have never been in Australia at all.


All applicants who need to use the DE stream need to have a skill assessment for their occupation and this result must be in existence before the application is made. If an application is made without a positive assessment result, such as the application for skill assessment has been submitted only, then the ENS applicant will fail. The good news is however that expired skill assessments are accepted according to DIAC policy. For example many skill assessments issued currently for Accountants have a validity period of only two years. Some of the older ones state 5 years, and some do not state any expiry period. In any case they can all be used for an ENS application.


Demonstrating 3 years of full time work experience in your nominated occupation is also a requirement for DE. In this case if must be 3 years of paid employment (not voluntary) at the skilled level (not pre-graduation) of at least 35 hours per week. DIAC PAM's states;


"Under policy the applicant should have worked full-time for at least three years however the period of work does not have to be continuous, or be immediately before the visa application was made. In order for the work to qualify as full-time, the applicant should have worked for at least 35 hours per week."


We understand there is some confusion about the hours per week needed for some other GSM applications only 20 hours per week is sufficient to qualify to gain points. However the ENS visa does not work on a points system and any weeks worked at less than 35 hours can mean that it cannot be counted to accumulate the 3 years of work experience required.


Just to clarify about pre-graduation work experience, it means that you must be qualified for the occupation you are being nominated for before the 3 years begins to be counted. 


For example if you have worked as a bookkeeper while studying your Bachelor of Commerce in Accounting, then it would not be regarded as the required skill level, not to mention the fact that the occupation skill set is not the same as an accountant anyway. However if you had already obtained a Bachelor degree then worked as an Accountant whilst studying your Masters degree then the skill requirement would be met. The other issue to cover of course would be that when working and studying at the same time it may be difficult to prove the minimum 35 hours per week requirement if you are trying to use this period to make the 3 year requirement.


The English requirement for the DE stream is the same as the TRT so please read above for notes on this.

Agreement Stream


This stream does not often come to the attention of city dwellers like us. It is designed for applicants sponsored by employers through a DIAC authorized labour agreement or a regional migration agreement. Big mining companies or certain regional districts may lobby, negotiate and apply to DIAC for one of these schemes to be approved. 


The whole system seems like a secret witches brew which to be honest, is a little on the nose for many Australians. However it does exist and those lucky enough to have an employer approved under this system, make sure they don't turn you into a toad.


One main issue is one that is highlighted in the regulations;


"The terms and conditions applicable to the position must be no less favourable than the terms and conditions that are or would be provided to an Australian citizen or Australian permanent resident for performing equivalent work in the workplace to which the application relates at the same location".



Interestingly regarding the applicants English ability for this stream, it can be negotiated in the labour agreement. This means the collective farmers association of the Ding Dong Valley region can ask DIAC that their workers need no English at all to pick the highly prized honeydews that crocodiles love to lay their eggs next to. Understandable I guess. 




Expression of Interest Lodged Free of Charge*

Australian Immigration Law Services are offering GSM prospective GSM applicants to lodge there EOI free of charge.


*This offer is for clients who have a consultation in our office or by telephone to discuss their points score ensuring their eligibility for the EOI system and are nearly ready to apply. The usual consultation fee of $165 will apply. 


After we are sure the EOI is suitable for you we then lodge the Expression of Interest free of charge. This promotion is for the lodgement only of your EOI. 


It is vital that the information lodged in your EOI be an accurate representation of your individual points score.


Please use the details below to book your appointment.

Some light reading?  
Have a few spare minutes and nothing to do? Try reading one of our riveting historical newsletters to give you a buzz.

Won't exactly blow your mind but might rattle loose a filling.


For the recent ones using the new newsletter format, they can be found here.


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Kind regards,

Karl Konrad, Managing Director


Jee Eun HAN, Executive Manager     

Australian Immigration Law Services

MARN: 9904238, 0850073 

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 At Australian Immigration Law Services (AILS), we offer professional advice and practical solutions to all migration matters. Our team of licensed agents and consultants specialise in various areas of immigration law, such as skilled migration, business, family, and reviews.


저희 회사에는 한국인 스탭도 일하고 있습니다.








There is little doubt that that DIAC would like all skilled migration places to be filled by an employer driven engine where the ENS visa becomes fuel tank. 


From an employers perspective it is a handy resource when it becomes difficult to fill job vacancies from the local labour market. DIAC is also keen to make claims that it is better to have skilled migrants who already have a job. 


The TRT stream is an effective reward bonus to those staff who have worked hard on their 457 visa for the same employer for the last two years. 


Employers could easily keep temporary overseas workers on 457 visas indefinitely but they know they may loose staff to other companies if they don't demonstrate an act of good faith by helping their employees gain permanent residency.


In some cases this act of good faith by an employer is abused by the applicant and they do not stay long after gaining their visa. 


There no law to compel a person who has gained their PR ENS visa to remain with the sponsoring employer. This is a major flaw in the program that has existed for years.


In our experience most recipients of the ENS visa courtesy of their boss do in fact remain loyal to the company that has made the effort to apply and gain sponsorship permission from DIAC. 


Sadly we do occasionally hear from a disgruntled employer who feel they have been taken advantage of when an ENS visa holder skips to another job.


On the whole though it seems the system works well but there is a danger that money and corruption may scar the visa program in a similar way it did with the GSM visas a few years back. 


If you hear of such cases, do us all a favour and let DIAC know otherwise one day the ENS doorway may close in your face or one of your friends or relatives faces just when they need it the most.


Karl Konrad

Karl Konrad

Managing Director

Han Photo with Jacket

 Executive Manager

Jee Eun HAN


Australian Immigration Law Services  

phone: 61 2 92791991 | fax: 61 2 9279 1994
email: | website: 


 Level 13, 37 York Street Sydney NSW 2000

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