ENS Nomination Refusal — How to Manage the Risk for Visa Applicant
Applications for Employer Nomination Scheme (ENS) visas (186) are subject to requirements to demonstrate a genuine need for the position being nominated. ENS nomination refusal is largely due to inadequacy of statement of genuine need.
The requirement to provide evidence of genuine need of position was introduced into the Migration Regulations in July 2016. However, case officers are now under strict policy instruction to scrutinize applications for genuineness of position criteria.
July 1, 2017 changes to Regulation 5.19(3)(i), state the nominator must show how the position is a paid one and under the nominator’s direct control. The interpretation of the meaning of under direct control is yet to be fully explained by the department and has raised concerns that this vague terminology can be grounds for refusals.
To strengthen applications, there are a number of important things to consider when drafting the statement of genuine need.
- The position fits the scope of the activities of the business.
- The business can provide evidence demonstrating need for the position (whether new or existing).
- The tasks of the nominated role are detailed in the employment contract and ‘substantially’ align with tasks on the ANZSCO occupation description for the nominated role.
- The inability to hire a suitable employee for the nominated occupation from the local labor force.
- Reasons why the nominated employee is selected as the best and most appropriate nominee.
When making nomination application, consider the following issues that can be grounds for application refusals.
- Broader economic factors surrounding the business, such as whether the industry in which it operates is in decline.
- Average or above-average unemployment in the nominated occupation.
- The business has recently laid off employees in the nominated or similar roles.
- The business has recently reduced hours of operations.
- Other employees in the business have experienced a reduction in pay and conditions (note, the ATO and DIBP databases are increasingly linked to cross check business activities).
- The business is small and employs a number of 457 visa holders or other temporary visa holders, and there are no, or few, Australian employees.
- Management positions nominated at the lower end of the market salary rate according to industry standards.
- The nominated occupation is generic in nature (the department identifies Marketing Specialist, Program or Project Administrator, Specialist Manager NEC).
- The business is an overseas entity sponsoring a visa holder through an associated entity.
- The business sponsor is an overseas entity with newly established branch in Australia but nominated role is not suited to establishing the Australian business and to be responsible for operations of the business in the short to medium term.
- Inconsistent information about tasks performed in the role and those on the nominated occupation as defined by ANZSCO description.
- The list of tasks provided in the application form has been substantially copied from the ANZSCO dictionary into the application form or job description.
- The business wishes to nominate a General Manager and is an import/export business with no employers other than directors.
- The business relies on rental income from domestic properties (for example, renting rooms to overseas students).
Nomination applications exposed to any of the risks above will not automatically be refused. Rather, a robust defence of the requirement for the nominated role to be approved is even more essential.