Regional Sponsored Migration Scheme (RSMS)
The Regional Sponsored Migration Scheme (RSMS) process also involves stages. The difference between the ENS and the RSMS process is that in the RSMS Direct Entry pathway (for applicants not on 457 visas) there is a preliminary stage requiring the sponsoring employer to have the position in question certified by a Regional Certifying Board (RCB) (list of RCBs)
When certifying positions the RCB examines the position in terms of local shortage, may require evidence of market testing, and considers other regional variations in conditions. It also looks at the visa applicant at this stage. If the RCB is satisfied that the position is genuine, it will certify that position.
RCB certification must be completed before lodgement of the position nomination with the Department of Home Affairs (DHA). Occupations can only be selected from ANZSCO Skill level 1-3
The second stage is nomination and lodgement of the certified position by the sponsoring employer and the last stage is lodgement of the visa application, matching the visa applicant to the certified position..
RSMS nominations (& visa applications) can no longer be lodged decision-ready. Applications will be processing date of receipt order.
The sponsoring employer must be lawfully operating in Australia, must be financially able to pay the position, and must also pay at least the market salary in the regional area approved by the RCB (if applicable)
Benefits of Applying for RSMS over ENS visa
The requirements for RSMS are more straightforward than ENS in a number of important ways:
- The employer does not need to meet the training requirement
- The visa applicant requires a lower level of skill for the Direct Entry Stream – most applicants do not require a skills assessment, but there is now a 3 year work experience requirement (same as the ENS)
- It is possible to apply for RSMS in a wider range of occupations than ENS
- RSMS is the highest priority visa in the skilled migration stream
RSMS Regional Areas
In order to be granted an RSMS visa, the employee must be offered a position in a “regional area”. The regional areas are specified by postcode by the DHA.
The following are considered Regional areas for the purposes of RSMS sponsorship:
- The whole of Western Australia
- The whole of South Australia
- The whole of Tasmania
- The whole of ACT
- The whole of Northern Territory
- New South Wales (NSW) – all areas excluding: Sydney, Newcastle and Wollongong
- Victoria – all areas excluding Melbourne
- Queensland- all areas excluding Brisbane
RSMS (sc187) Visa
The RSMS (sc187) visa is not points tested either but RSMS occupations are restricted to the ANZSCO Skill Level 1-3 occupations. RSMS does not require any minimum level of experience which is ideal for new graduates as long as they can show the required level qualifications.
You must now be able to nominate an ANZSCO occupation from the relevant MLTSSL and Regional Occupation List (ROL) – RSMS SC187 List
There are three pathways to apply for an RSMS visa:
- Direct Entry stream – You will need to have qualifications and skills relevant to your nominated occupation. If you are nominated to fill a trade occupation Listed RSMS trade occupations and possess overseas qualifications or rely only upon work experience, you must have a satisfactory skill assessment from the relevant skill assessing authority – unless you are exempt.
Applicants will also be required to have a score of 6 in each of the 4 parts of the IELTS unless they are in an exempted class of applicants;
Employers will also need to pay SAF training levy and must pay market salary prior to being able to nominate an applicant(s);
- Temporary Residence Transition Stream – working on a 457/STT visa (the only qualifying visa) in the same ANZSCO unit group as the nominated position for a period of 2 years of the 3 years prior to application. Where the employee has worked for the ENS nominator, employers will be required to show that they have met their training commitment and market salary obligations under the STT visa program
In this pathway, no RCB certification is required and there is no need for the Sponsor to meet training benchmarks.
Applicants will also be required to have a score of 5 in each of the 4 parts of the IELTS unless they are in an exempted class of applicants; or
- Agreement stream (including Labour agreements and Regional Migration Agreements)
Once granted the RSMS visa does have a restriction requiring a successful visa holder to live and work in a regional area for 2 years. Cancellation for breach of this condition is possible.
Commitment to work for 2 years from date of visa approval
In the visa application form, as the applicant, you are required to declare that you:
- Agree to work in the nominated position for at least two (2)years
- Understand that if you as the applicant, or any family members included in the application or third parties acting your behalf, provide (or have provided in a previous application) false or misleading information, or bogus documents either knowingly or otherwise, the visa application will be refused and you may be subject to three year bar in relation to visas to which the fraud criterion applies. Any visa granted may be cancelled.
Effectively, this means that when your visa application is lodged, you must have the intention to work for your sponsoring employer in your nominated role for at least 2 years from the date that the visa is approved.
You need to continue to have this intention until a decision is made on your application. If your intention changes before lodgement, or during processing, and you no longer intend to work for your sponsoring employer for at least 2 years from when the visa is approved, then you should either not lodge the application or inform the Department and withdraw your application (whichever is applicable to your situation).
Section 137Q – Cancellation of permanent residency
Section 137Q gives the Department the power to cancel the permanent residency that you obtained through RSMS. The section itself is relatively straightforward and states that permanent residency granted under the RSMS pathway may be cancelled if:
- You do not commence employment in your nominated role within 6 months of the date of approval (if you are in Australia at the time of approval) or within 6 months of entering Australia as the holder of a RSMS visa AND you do not satisfy the Department that you have made a genuine effort to commence employment within the 6 month period; or
- You commence employment but you terminate your employment within the first 2 years AND you do not satisfy the Department that you have made a genuine effort to remain in your nominated role for the required 2 years.
How is the Department (DHA) notified?
Generally speaking, the most common way for the DHA to find out is through the employer notifying the DHA that you have either failed to commence employment, or you terminated your employment before you have completed 2 years or through ‘community information” (being dobbed in).
The DHA can also find out about the termination of your employment through information that it receives from other government departments, such as the Australian Taxation Office, the Australian Securities and Investments Commission, Centrelink etc.
As the visa holder, you are not under any specific obligation to notify the DHA if your employment is terminated.
Relevant considerations in assessing ‘genuine effort’
If the DHA does decide to conduct an investigation, under policy, the following must be considered when the DHA determines whether you have made a ‘ genuine effort’ (the below is a direct extract from the DHA’s policy):
- The visa holder’s reasons and/or circumstances leading to the failure to commence work or to complete the two year employment period (family or personal considerations may be a factor under these circumstances)
- The possibility that the visa holder, in collusion with the employer, does not commence work within the six 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 employer prior to termination of the employment (generally, periods of more than 12 months may be considered as a genuine effort) and
- Any other matter which is relevant to the commencement or termination of the employment.
The below is a summary of other relevant parts of the DHA’s policy in relation to s137Q:
- If you are ceasing employment on ‘reasonable grounds’, you are expected to give your employer reasonable notice.
- The Department is unlikely to decide that you have not made a genuine effort if your failure to commence or your termination of employment was due to circumstances outside your control (e.g. your employer’s financial loss, bankruptcy or closure of the business).
- The Department may decide that you have not made a genuine effort if you ‘deliberately damaged or sabotaged the employer’s business to cause the dismissal’.
The important thing to remember, is that policy states that decisions made under s137Q are a matter to be resolved between the DHA and the visa holder. The former employer can provide information to the DHA but they are not involved in the ultimate decision-making process.
Consequently, if the DHA is considering the possibility of cancelling your visa, the DHA will need to contact you to give you the opportunity to present your side of the story.
For further information on Employer Sponsorship please click on the link.