The Regional Sponsored Migration Scheme (RSMS) enables Australian employers, located in regional and low population areas, to recruit skilled people from overseas where the employer is unable to find a suitably qualified employee from the local labour market.
There are two distinct stages to a RSMS Permanent Residence Visa application:
- the employer lodges an Employer Nomination Application with the Department of Home Affairs nominating the employee’s position to be an “approved appointment”. The Employer Nomination needs to be lodged with and approved by a Regional Certifying Body (RCB) prior to lodgement with the Department of Home Affairs (see below).
- the employee lodges a Subclass 187 Visa Application to the Department of Home Affairs demonstrating they have the skills, qualifications and experience required to fill the nominated position.
While these two applications are separate, nonetheless they are inextricably bound up with each other, and usually lodged with the Department of Home Affairs contemporaneously.
Employer Nomination Application
To be eligible the nominating employer must demonstrate it:
operates a genuine business located in Australia;
- offers permanent full-time regional employment (of at least 2 years duration and not subject to any express exclusion of the possibility of renewal) within a highly skilled occupation;
- offers Australian wages and conditions satisfying market salary requirements;
- is committed to training Australian workers to meet long-term needs and satisfying Training Benchmarks.
Obtaining approval for the “approved appointment” from the Department of Home Affairs requires detailed information regarding the nominating employer, including but not in all cases limited to:
- company structure chart showing which positions are filled by persons who are not Australian citizens or permanent residents;
- details of the nature of the company's business listing its main activities, a copy of the company's financial or annual report, and publicity material;
- the date the company commenced business operations in Australia;
- details of affiliated businesses overseas (if applicable);
- position description for the nominated position showing its responsibilities and main duties, the level of formal training or equivalent experience required to satisfactorily perform the duties of the position, and, the level of additional post-training employment experience required;
- details of the position's annual salary and any work-related benefits relevant to the position;
- documentary evidence the position’s salary satisfies market salary requirements
- details of the number of people employed and the numbers working in the same occupation as the nominated position;
- details of the number of graduate trainees recruited in the current and previous calendar years, the total number of new graduate trainees currently employed, and the planned intake of new graduates for the next year;
- details of the nominating employer’s training strategy, listing its aims and how they are achieved (including involvement in government or industry training schemes);
- details of how the nominating employer plans to overcome the shortage of available skills related to the nominated position;
- documentary evidence demonstrating the nominating employer’s satisfaction of Training Benchmarks.
The Employer Nomination Application and the Subclass 187 Visa Application are both lodged and processed in Australia at the Department of Home Affairs.
The Employer Nomination needs to be lodged with and approved by a Regional Certifying Body (RCB) prior to lodgement with the Department of Home Affairs.
The RCB approval process may include labour market testing of the nominated position. In particular the RCB will need to assess if there is a genuine need for the position and the position cannot be filled by an Australian citizen or permanent resident who is living in the same local area. This may involve the provision of labour market testing documentary evidence.
Employer Nomination applications for RSMS Permanent Residence:
- do not limit the employer to nominating only occupations found on the Consolidated Skilled Occupation List (CSOL) [an expanded range of occupations can be nominated including those with a significantly lower academic threshold than in Employer Nomination Subclass 186 Permanent Residence], and
- do not require a positive Skills Assessment by a prescribed Australian Assessing Authority unless trades occupations are nominated, but
- do require the Subclass 187 visa holder employee to remain in regional employment with the nominating employer for a minimum of 2 years following visa grant [subject to some limited exemptions in certain circumstances].
A RSMS Employer Nomination Application for a candidate may be recommended based on:
- Academic achievements and current occupations of each candidate, and
- The salary levels of each candidate, and
- The period of employment to date in Australia of each candidate, and
- The (remote) location of the employment, and
- To meet an employer objective of "holding" the permanent resident visa holder in the location for a period of time (i.e. two years).
The Subclass 187 Permanent Residence Application
The RSMS involves much more intensive preparation than a temporary work visa application and therefore a longer lead time both in preparation and, usually though not always, in processing of a visa application.
Where the visa applicant is in Australia and holds a relevant temporary work visa, the permanent visa application will be lodged and decided, and the permanent visa issued, all whilst the applicant remains in Australia.
A non-exhaustive summary of some typical documents and requirements for visa applicants is as follows:
- Evidence of vocational English language proficiency (for Temporary Residence Transition Stream) and competent English language proficiency (for Direct Entry Stream) for the main visa applicant. An IELTS test may be requested;
- Evidence of functional English language ability for all secondary visa applicants aged 18 years and over. An IELTS test may be requested;
- Certified or notarised copy of qualifications, awards and certificates;
- Certified or notarised copy of marriage certificate (if applicable), and if divorced or separated from a partner, documentation may be required to evidence this;
- Certified or notarised copy of unabridged birth certificates; unabridged birth certificates show the full particulars of the parents of a person, not merely the person's name and date and place of birth;
- Health examination results. These examinations are much more intensive than for temporary residence. Physical examinations, x-rays and blood tests are usually required. (Prescribed processes and time frames apply – do not proceed without advice);
- Police clearance certificates from each country in which the applicant has lived during the past ten years, where stay in the country was for 12 or more months cumulatively. Police clearances can take time to procure, in some cases many months. Military discharge certificates will be required for any applicant who has served in the military or para-military services of any country. (Prescribed processes and time frames apply – do not proceed without advice);
- Employer Nomination approval from the Department of Home Affairs regarding the nominated position;
- Other supporting documents may be required, e.g. proof of de facto spouse relationship; custody documents in respect of children (the Department of Home Affairs need to be satisfied about custody and guardianship of biological or adopted children and there are no legal impediments to them migrating and travelling out of their country of residence); previous employment references;
- Curriculum vitae must current at the time of lodgement of the permanent residence visa application.
The above list is not conclusive, furthermore, no two applicants have the same factual situation and therefore no two visa applications are the same.
Permanent Residence Visa applicants need to be less than 50 years of age and satisfy one of the following eligibility criteria:
Direct Entry Stream:
- the applicant is nominated in a trades occupation and their qualifications are obtained outside Australia, the applicant’s skills are positively assessed by the Relevant Australian Assessing Authority; or
- the applicant has the qualifications listed in the ANZSCO classification for the nominated occupation.
Temporary Residence Transition Stream:
- the applicant has been employed by the nominating employer in the nominated occupation for at least the 2 years immediately prior to lodging the application as a Subclass 457 Visa holder;
- applications need to be lodged nominating an occupation in the Australian and New Zealand Standard Classification of Occupations (ANZSCO) with the same 4 digit Occupation Unit Group as the occupation undertaken by the Subclass 457 Visa holder.
Exemptions may apply for Age, Skills, and English Language proficiency and depend on the nominated occupation, salary, and previous employment experience.
Two Year Employment Requirement
If the employer successfully nominates a candidate for a RSMS Permanent Residence visa then the Subclass 187 visa holder is required to make a genuine effort to complete the agreed two-year contract period.
The onus is on the visa holder to complete the two year employment with the nominating employer in a regional location. If the visa holder leaves the nominated employment before the two year period has elapsed then it is open to the Department of Home Affairs to cancel the visa if the visa holder has not made a genuine effort to complete the agreed two-years of regional employment. For visa cancellation to occur, the Department of Home Affairs must be satisfied that the visa holder did not make a genuine effort to complete the required two-year period of regional employment.
In assessing whether the visa holder has made a genuine effort the Department of Home Affairs must consider:
- the visa holder’s reasons and/or circumstances under which the visa holder failed to commence work or to complete the two-year period of employment; (a serious family or personal consideration may be a factor under these circumstances);
- the possibility that the employee, in collusion with the employer, does not commence work within the 6 month period or resigns shortly after commencing work, as part of an arrangement to help the visa holder enter or remain in Australia;
- in the case of termination, the period of the visa holder’s employment with the nominating employer prior to termination of the contract; (generally, periods of more than 12 months might be considered as a genuine effort);
- any other matter which is relevant to commencement or termination of the nominated regional employment.
If terminating the employment on reasonable grounds, a visa holder would be expected to give their nominating employer appropriate notice, including the opportunity to make a counter offer in circumstances where a more attractive employment opportunity exists in the regional area.
A situation created by the visa holder that results in termination of their employment would not be considered a genuine effort.
It is not expected that a visa holder would be assessed as failing to have made a genuine effort where the visa holder failed to commence, or remain in the nominated employment because of a situation out of the visa holder’s control, for example:
- the position was not filled or did not remain viable due to a serious downturn in business activity; or
- financial loss, bankruptcy or closure of the nominating business.
The Department of Home Affairs is also expected to consider any hardship that the visa holder or the visa holder’s family may suffer if their visa is cancelled.
Cancellation under the Migration Act would generally not apply in situations where the employer has dismissed the employee. However, there are circumstances where deliberate damage or sabotage of business production could occur to force dismissal to avoid possible visa cancellation under these provisions. The Department of Home Affairs must be satisfied that the visa holder has made a genuine effort.
The decision to cancel the visa is betweenthe Department of Home Affairs and the visa holder and based on the facts relating to the period of employment and the reason why they did not complete their regional employment with the sponsor. While the employer may be a source of information that an employee has not made a genuine effort, the employer has no further involvement in the process.
Preparation, Lodgement and Processing
Preparation of RSMS Employer Nomination and Subclass 187 Visa applications may take up to two to three months including health and character checking. The RCB may take up to two months to process the Employer Nomination Application, and the Department of Home Affairs may take up to 8 months to process the Employer Nomination and Subclass 187 Visa Applications. RSMS Employer Nomination and Subclass 187 Visa applications currently receive processing priority.
We recommend a professional consultation to discuss the abovementioned information and to review eligibility.
A professional consultation will enable us to explain the process more fully, appropriate options and strategies, timelines and costs and your prospects of success.
Please refer to consultation page.