Employer-Sponsored Visa Refusal Risks: Common Problems in 482 and 186 Applications

The employer-side process establishes matters such as the nominated
position, occupation, salary and sponsorship or nomination requirements.

The worker-side visa application separately tests whether the applicant
meets the visa criteria.

An employer nomination can therefore be suitable while the worker fails
a visa requirement.

Likewise, a highly qualified worker cannot overcome a nomination that
does not satisfy the employer-side rules.

For standard 482 Core Skills and Specialist Skills nominations, the
employer must certify that the tasks of the position include a
significant majority of the tasks specified for the nominated occupation
under the applicable occupation framework.

The employer must also certify that the nominee's qualifications and
experience are commensurate with those specified for the occupation.

A job title alone does not establish the correct occupation.

If the business calls a position "Manager" but the actual duties are
primarily operational or administrative at a different skill level, the
nominated ANZSCO occupation can become a central issue.

For 482 nominations, the current Regulations include requirements
concerning the position, employment contract, business capacity and
employment conditions.

For 186 TRT, the Regulations expressly require a genuine need for the
identified worker to be employed in the position under the nominator's
direct control.

For permanent sponsorship, the position also needs to remain available
for the visa pathway.

Employers should be prepared to explain how the role fits the business
rather than relying only on a position description created for the
migration application.

Potential problems include:

• too few qualifying advertisements
• advertising for too short a period
• advertising outside the permitted timeframe
• using an unacceptable advertising medium
• missing required advertisement content
• failing to state salary when required
• failing to address a recent redundancy or retrenchment
• failing to provide the required evidence with the nomination
• assuming an international-trade-obligation exemption without
  satisfying it

LMT is a statutory nomination requirement, not simply a recruitment
preference.

For 482 Core Skills and Specialist Skills nominations, the Regulations
require the nominee's annual earnings to meet the applicable income
threshold and not be less than the Annual Market Salary Rate, subject to
the rules and exceptions that apply.

For 186 nominations, salary and AMSR requirements also form part of the
nomination framework.

A common conceptual error is to treat the income threshold as the salary
that should automatically be offered.

If the genuine Australian market rate for the position is higher, merely
meeting the threshold does not solve the market-salary issue.

Depending on the circumstances, evidence can involve:

• an equivalent Australian worker
• an award or enterprise agreement
• employment contracts or payslips
• recruitment advertisements
• industry remuneration information
• reputable salary surveys
• other evidence relevant to the actual position

Generic salary data should not be treated as automatically sufficient
for every nomination.

The employer needs an AMSR methodology that fits the position.

For a 482 Core Skills or Specialist Skills nomination, regulation 2.72
includes a business-capacity requirement for the period of nomination.

For 186 TRT, the nomination framework also addresses the employer's
capacity to employ and pay the worker for the required
permanent-employment period.

The evidence needed depends on the business.

Financial capacity can become particularly important for smaller, newer
or changing businesses.

The 186 Direct Entry pathway generally requires at least three years
of relevant work experience, unless an exemption applies.

These requirements are separate from the employer's desire to hire the
worker.

A worker can be valuable to the business but still fail a statutory
work-experience criterion.

Employment dates, hours, duties and the relationship between the
experience and nominated occupation should be checked before lodgement.

For 186 Direct Entry, a suitable skills assessment is generally required
unless an exemption applies.

For 482, only specified applicants are subject to the mandatory
skills-assessment regime, although Home Affairs can request an
assessment in other cases.

A subclass 485 provisional assessment should not automatically be
treated as suitable for permanent employer-sponsored migration.

The assessment needs to match the occupation, assessing authority,
purpose and timing requirements of the pathway.

Direct Entry currently relies on the relevant occupation framework and
generally requires a positive skills assessment and three years of
relevant experience unless exempt.

TRT does not use the same occupation-list structure.

Instead, the worker generally needs the required eligible sponsored visa
and employment history.

Choosing a stream because it appears easier without checking the actual
criteria can lead to a nomination and visa strategy that does not fit
the worker.

The calculation is not always as simple as two calendar years from the
latest 482 grant.

Issues can include:

• changing sponsors
• unpaid leave
• occupation changes
• gaps between sponsored employment
• work undertaken during a 482 mobility period
• bridging-visa periods
• older 457 or 482 history

The timeline should be reconstructed from actual visa, nomination and
employment records.

For 186 Direct Entry and TRT, the standard age rule is generally under
45 at application, subject to specified exemptions.

Competent English is also generally required unless an applicable
exemption applies.

For 482, the relevant English framework is different and can also
contain exemptions.

Age and English should be checked early rather than after the employer
has completed the nomination process.

Sponsor compliance history can therefore matter.

Employers should not assume that a new nomination is assessed in
isolation from serious sponsorship or compliance issues already known to
Home Affairs.

Accurate disclosure and remediation of compliance issues can be
important.

The employment contract also needs to comply with applicable
Commonwealth, state or territory employment law.

Migration compliance does not replace workplace-law compliance.

The proposed sponsored employment needs to satisfy both frameworks.

Potentially significant changes can include:

• the position being withdrawn
• substantial changes to duties
• a different occupation
• business restructuring
• changes to salary or hours
• the worker leaving the employer
• the business ceasing operations

For subclass 186, Home Affairs states that the visa cannot be granted if
the nominated position is no longer available.

Material changes should therefore be assessed rather than left
unexplained.

The employer nomination and worker visa application are separate
decisions.

The worker still needs to satisfy the applicable visa criteria.

Depending on the pathway, this can include:

• skills and work experience
• age
• English
• eligible sponsored employment
• licensing or registration
• health
• character
• public interest criteria
• other stream-specific requirements

An approved nomination is important, but it does not cure a worker-side
eligibility problem.

The exact procedural consequences depend on the visa and stage of
processing.

Review rights can also depend on the decision and circumstances.

Employers and workers should not assume that lodging another nomination
or changing information after refusal will automatically fix the
original application.

The refusal reasons need to be understood first.

But it often means Home Affairs needs additional material to assess a
criterion.

The response should address the actual issue raised and be supported by
relevant evidence.

Submitting a large volume of unrelated material can make the response
less clear rather than stronger.

Deadlines should be taken seriously.

But not every problem can be cured later.

Some criteria depend on facts or actions that needed to exist before
or at the time of application or nomination.

Examples can include particular LMT requirements, skills-assessment
timing, invitation criteria or eligibility history.

Pre-lodgement review is therefore more reliable than assuming every
deficiency can be repaired after submission.

Employer and nomination

• correct visa and stream
• sponsor status
• adverse information
• genuine position
• correct occupation
• actual duties
• employment contract
• business capacity
• LMT where required
• salary threshold
• AMSR
• employment conditions
• position availability

Worker

• occupation eligibility
• relevant work experience
• skills assessment where required
• age
• English
• licensing or registration
• visa history
• sponsored employment history for TRT
• health and character considerations
• consistency of evidence

The strongest employer-sponsored application is one where the
employer-side nomination and worker-side visa criteria have been checked
together before lodgement.