The Employer Nomination Scheme (Subclass 186) (ENS) visa offers businesses the possibility to sponsor foreign workers for permanent residency (see here for further information). Ordinarily, applicants must be below 45 years of age at the time of application. Like many rules however, there are several exceptions which may allow certain individuals to qualify for the visa even after reaching 45.
There are two main streams for this application:
- the Temporary Residence Transition (TRT) stream; and
- the Direct Entry stream.
Age exemptions will depend on which stream is applied for.
Exceptions for applicants of the Temporary Residence Transition stream
The Temporary Residence Transition (TRT) stream of the ENS visa is ordinarily open to holders of a Subclass 457 or 482 visa who have worked for their nominating employer in Australia for 3 out of the last 4 years.
In standard applications, the following classes of people are exempt from the age requirement:
- Academic applicants
- Legacy 457 workers
- Regional medical practitioner applicants
- Science applicants
- Subclass 457/482 workers
- Subclass 457/482 coronavirus concession workers
- Transitional 457 workers under 50
Exception for applicants of the Direct Entry stream
Applicants for the direct entry stream require 3 years of post qualification work experience and a skills assessment. There is no requirement to have worked for the nominating employer for 3 years. The age exemption is applicable to the following classes of people:
- Academic applicants
- Science applicants
- Subclass 444/461 workers
Summary of exceptions
A brief outline of each exempt category is below:
If you are an Academic applicant
An academic applicant is a person who is:
- nominated by an Australian university;
- in a position for an academic classified as level A, B, C, D or E (see here); and
- in an occupation of either “university lecturer” or “faculty head.”
If you are a legacy or transitional 457 visa worker
Depending on when you were granted your Subclass 457 (Temporary Work (Skilled)) (Subclass 457) visa and the time you have spent in Australia, you may qualify as either a “Transitional” or a “Legacy” 457 worker.
If you have held a Subclass 457 visa but do not fall into either of the above categories, you may still be eligible if your income was sufficiently high, as outlined below.
If you held a 457 visa and don’t meet the above, or hold a 482 visa
You may be eligible for an age exemption if your earnings were higher than the Fair Work High Income Threshold. If your earnings were impacted by the COVID-19 pandemic, you may still be eligible as a “coronavirus concession worker.”
- 1 July 2022 – 30 June 2023: $162,000
- 1 July 2021 – 30 June 2022: $158,500
- 1 July 2020 – 30 June 2021: $153,600
- 1 July 2019 – 30 June 2020: $148,700
- required to work at a reduced salary; or
- required to work reduced hours; or
- required to work part time; or
- unable to work full time; or
- stood down.
As a coronavirus concession worker, you only need to have been earning above the high income threshold during the periods in the three years preceding your application which were not part of the concession period (before 1 February 2020).
In each of the three years which did include part of the concession period (since 1 February 2020), the income requirement which you need to meet is reduced proportionately. For example, if COVID-19 impacted your work for 10 out of the 52 weeks between 1 July 2021 and 30 June 2022, then the pro rata adjusted income which you need to meet is (52-10)/52 x $158,500 or $128,019.
If you are a regional medical practitioner
If your nominated position is located in a designated regional area, you may be exempt from age requirements. To qualify under this category, you need to have worked as a medical practitioner in the three years before you make your application, while holding either a Subclass 457 visa, or a Subclass 482 visa. During those three years, you must have worked as a medical practitioner for at least two years in a designated regional area. This period does not need to be consecutive.
If you are a science applicant
A science applicant is a person working in the field of science as a researcher, technical specialist, or a scientist. You must be nominated by a science organisation. This can be either a science agency of the Commonwealth or of a State or Territory, or an Australian university. The skill level of the nominated occupation must be level one or two.
If you are a New Zealand citizen in Australia on a Subclass 444/461 visa
New Zealand citizens and their non-NZ citizen family members living in Australia on a Subclass 461 (New Zealand Citizen Family Relationship (Temporary)) visa can be exempt from age requirements.
You need to have lived in Australia during the three years before you apply for the visa. For those three years, you need to have been employed by your nominating employer in the nominated position to which the visa relates, for at least two years.
How can we help?
If you are a foreign worker over the age of 45 or employing someone who is, feel free to contact us by email at [email protected] or phone +61 3 9016 0484 to determine if pathways to permanent residence might be available.