Evidencing “Genuine Need” for an Employee When Sponsoring for Permanent Residence

Evidencing “Genuine Need” for an Employee When Sponsoring for Permanent Residence
May 2024
Nadeem Lawyers

Evidencing “Genuine Need” for an Employee When Sponsoring for Permanent Residence

Employers who wish to nominate a foreign employee for ENS Subclass 186 visa (permanent residence) will be required to evidence that there is a genuine need for an employee to occupy certain position on a permanent and ongoing basis.
This criterion is applicable to Temporary Residence Transition Stream as well as Direct Entry Stream respectively. The appears to be a level of misunderstanding regarding this requirement, particularly, that such evidence needs to come in a form of Labour Market Testing (similar to the process of sponsoring a TSS employee). The purpose of this article is to clarify this requirement and provide suggestions in terms of evidence could be provided by an employer for the Department to consider.

Temporary Residence Transition Stream (TRTS)

Looking at the Policy extract for TRTS,  paragraph 5.19(5)(k) requires the nominator to have a genuine need to employ the person to work in the position under their direct control.
Since implementation of the TSS visa, there is no longer an assumption, or “automatic right” to a pathway to permanent residence, there is a specified genuine need for the nominee to remain employed in the nominated position.

When assessing ‘genuine need’, Home Affairs will take into account the following:

Note – This is not the same as having to provide evidence of Labour Market Testing for TSS visa.

The application form itself will provide answers to a number of questions associated with the position.  For example, length of employment, business structure, industry sector and number of foreign employees employed by the business.
Financial annual report should provide case officers with insight relating to any increased activity within the business.  A small business may consider including evidence of any future expansion (for example, new contracts and projects won).  The Department will also consider whether refusal of the nomination is likely to impact the business in adversely.

Direct Entry Applications (DE)

Threshold for Direct Entry applications is somewhat higher given that an employee (in the eyes of the Department) is largely considered to be untested in the Australian Labour Market by the Department.  Specific Direct Entry Requirements are outlined below:

Scenario 1 – perform activities to lead or assist with the diversification

An example would be where a business that is currently involved in running a restaurant nominates the position of business development manager on the premise that they wish to start up or purchase a number of restaurants.
In this instance, a case officer would need to be satisfied that the business has the intention and the financial capacity to support such business expansion, taking into account any evidence provided, including:

It is strongly advised that Genuine Need for DE applications are supported by submission on behalf of the employer to ensure that all supporting documentation is considered appropriately by the case officer.

Scenario 2 – work within the diversified (new) environment

An example would be a business that is currently involved in running fitness centre and decide to nominate a Chiropractor on the basis that they intend to diversify their business operations.
Decision-makers would need to be satisfied that the business has the capacity and intention to diversify their business activity, taking into account any evidence provided, including:

Information that may be considered adverse information should also be addressed in order to ensure that full context of the situation is adequately presented.
Any of the following actions by the nominating employer regarding other employees, including Australian workers, in the nominated occupation or similar occupations may be indicative of the nominated position not being genuinely needed:

Each case will be different, and it is important to ensure that the nature of the business, details pertaining the position are sufficiently presented to Home Affairs, particularly in relation to Direct Entry applications.  Other factors including size of the business, whether the business has previously nominated an employee for permanent residence under ENS will also be considered by the Department.

If you require any assistance Call Nadeem Lawyers at 02 9635 7903

DISCLAIMER: The information provided here is only for general understanding and does not constitute legal advice.

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Nadeem Lawyers is a law practice with a focus on Immigration, Business & Property Conveyancing, Family Law, and Wills & Estate. We are conveniently located in the Parramatta CBD. We pride ourselves on our personable approach and focus on establishing long-term relationships with our clients. Our team is committed to achieving meaningful results for our clients in a cost-effective manner. We feel a great sense of achievement when we see our clients emerging happier at the conclusion of their matters.