Migration Regulations 1994 – Employer Nomination Scheme - Occupations, Locations, Salaries and Relevant Assessing Authorities – IMMI 11/021

Administered by Department of Home Affairs

Legislation au F2011L01228 Not in force Legislative Instrument

Legislation content

 

EXPLANATORY STATEMENT

Migration Regulations 1994

 

EMPLOYER NOMINATION SCHEME - OCCUPATIONS, LOCATIONS, SALARIES, AND RELEVANT ASSESSING AUTHORITIES

 

(SUBPARAGRAPH 5.19(2)(h)(i), SUBPARAGRAPH 5.19(2)(h)(ii), PARAGRAPH 5.19(2)(i), SUB-SUBPARAGRAPH 121.211(b)(i)(A), SUBPARAGRAPH 121.211(b)(ii),
SUB-SUBPARAGRAPH 856.213(b)(i)(A) AND SUBPARAGRAPH 856.213(b)(ii))

 

  1. This Instrument is made under paragraph 5.19(2)(i) and subparagraph 5.19(2)(h)(i), subparagraph 5.19(2)(h)(ii) of the Migration Regulations 1994 (‘the Regulations’), and
    sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A), and subparagraph 856.213(b)(ii) of Schedule 2 to the Regulations.

 

2.                  Paragraph 5.19(2)(h) and paragraph 5.19(2)(i) of the Regulations provide that the criteria must be assessed by reference to the Gazette Notice in force for the paragraph at the time at which the application for approval of the nominated position is made.  Sub-subparagraph 121.211(b)(i)(A), subparagraph 121.211(b)(ii), sub-subparagraph 856.213(b)(i)(A) and subparagraph 856.213(b)(ii) of Schedule 2 of the Regulations provide that the criteria must be assessed by reference to the Gazette Notice in force for the subparagraph at the time at which the visa application was made.

 

3.                  Regulation 5.19 provides for the process and criteria for an employer to apply to the Minister for a nominated position to be approved as an approved appointment.  Subparagraph 5.19(2)(h)(i) provides that an employer nomination meets a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position correspond to the tasks of an occupation specified in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made.  Subparagraph 5.19(2)(h)(ii) provides that an employer nomination meet a requirement of subregulation 5.19(2) if the tasks to be performed in the nominated position will be carried out in a location specified, for the relevant occupation, in a Gazette Notice in force for this subparagraph at the time at which the application for approval of the nominated position is made.

 

 

 

 

4.                  Subparagraph 121.211(b) and 856.213(b) requires the applicant to satisfy sub-subparagraphs (i) or (ii).

 

 

 

5.                  Sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A) provide that applicants for the grant of a Subclass 121 (Employer Nomination) or a Subclass 856 (Employer Nomination Scheme) visa respectively must have had their skills assessed as suitable by an assessing authority specified by the Minister for the relevant occupation in a Gazette Notice for the relevant sub-subparagraphs.

 

6.                  Sub-subparagraph 121.211(b)(i)(B) provides that unless exceptional circumstances apply, the applicant has been employed in the occupation to which the appointment relates for at least 3 years before making the application.  However, this requirement does not have to be met by applicants coming within subparagraphs 121.211(b)(ii) and 856.213(b)(ii) that provides for certain applicants for the grant of a Subclass 121 (Employer Nomination) or Subclass 856 (Employer Nomination Scheme) visa respectively, the Minister must be satisfied that the applicant will be paid a salary in the nominated position that is at least the amount of salary specified in a Gazette Notice for these subparagraphs.

 

7.                  The Instrument operates to specify an increase base annual salary in column C of the Schedule from $47,480 to $49,330 for the relevant occupations listed in column A.  The purpose of this increase is to align the ENS minimum salary with the annual indexation of the 457 Temporary Skilled Migration Income Threshold according to the Australian Bureau of Statistics’ average weekly earnings data.

 

8.                  The Instrument operates to include Dog Trainer or Handler (361111) as an occupation listed in column A of the Schedule for the purposes of subparagraph 5.19(2)(h)(i) of the Regulations.  The occupation Slaughterer (831212) is removed from column A of the Schedule and is no longer available for the purposes of subparagraph 5.19(2)(h)(i).  This occupation is being removed as it is no longer considered a skilled occupation within the Australian and New Zealand Standard Classification of Occupations for the purposes of ENS.

 

 

 

 

 

9.                  The instrument operates to index the higher salary currently applicable to some of the computing professional occupations at the same rate under the 457 subclass.  This indexation represents a 3.9 percent increase to the salary from $65, 020 to $67,556.

 

10.              The Instrument also operates to include the Australian Nuclear Science and Technology Organisation (ANSTO) as an assessing authority for teaching or research positions, which they have nominated under Employer Nomination Scheme.  Additionally, the instrument specifies the Australian Institute for Teaching and School Leadership (AITSL) as the assessing authority for the Special needs teachers, Special education teachers nec, Teacher of the hearing impaired and Teacher of the sight impaired.

 

11.              Subsection 56(1) of the Legislative Instruments Act 2003 provides that if the enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken, in relation to any such instrument made on or after that day, to be satisfied if the instrument is registered.

 

12.              The following document is incorporated in the Instrument by reference:

  • ANZSCO means, under regulation 1.03 of the Regulations, the Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics as current on 1 July 2010.  This is the ANZSCO - First Edition, Revision 1 (ABS Catalogue No. 1220.0) and is available online at http://www.abs.gov.au.

 

13.              All relevant stakeholders have been consulted, for examples: clients (ANSTO), VETASSESS and Engineers Australia.

 

14.              The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required because there is little or no compliance cost on business and no other impacts on business and individuals or on the economy or on competition (OBPR reference 12426, 12590 and12626).

15.              The instrument, number IMMI 11/021, commences  on 1 July 2011.   .

Overview

The Migration Regulations 1994 were enacted to provide a comprehensive framework for the administration of Australia’s migration laws. These regulations address various aspects of the migration process, including the criteria for visa applications, the requirements for employer nominations, and the assessment of skills and salaries for skilled occupations. The problem or gap these regulations were introduced to address was the need for a structured and efficient system to manage the influx of skilled migrants into Australia, ensuring that the process was fair, transparent, and aligned with national economic and labour market needs. The enacting body for these regulations is the Australian Parliament, and the policy objective is to facilitate the entry of skilled migrants who can contribute to the Australian economy while protecting the interests of Australian workers. The explanatory statement for the Migration Regulations 1994 details updates to the salary thresholds for certain occupations and the addition of specific occupations to the approved list, reflecting changes in the labour market and economic conditions.

Scope and Application

The Migration Regulations 1994, as amended by this instrument, apply to employers who wish to nominate a skilled non-resident for a position in Australia under the Employer Nomination Scheme (ENS). This regulation specifically governs the criteria and procedures for approving nominated positions, including the occupations eligible for nomination, the locations where tasks may be performed, the required salaries for these positions, and the relevant assessing authorities for skills assessments. The regulations apply across the Commonwealth of Australia and are enforced by the Minister for Immigration and Border Protection. There are specific exclusions and exemptions, such as the removal of the occupation 'Slaughterer' from the eligible list due to it no longer being classified as a skilled occupation under the Australian and New Zealand Standard Classification of Occupations (ANZSCO). Additionally, the instrument adjusts the base annual salary for certain occupations and includes new assessing authorities for specific teaching roles. The changes in this instrument are intended to align the ENS minimum salary with the annual indexation of the 457 Temporary Skilled Migration Income Threshold, reflecting updated economic data.

Key Provisions

The Migration Regulations 1994, as amended by this instrument, establish the criteria for employers to nominate skilled workers for specific positions, ensuring these positions align with occupations, locations, salaries, and recognised assessing authorities specified in the relevant Gazette Notice (subparagraph 5.19(2)(h)(i), subparagraph 5.19(2)(h)(ii), paragraph 5.19(2)(i)). Employers must ensure that the tasks of the nominated position correspond with those specified for the occupation in the Gazette Notice at the time of application (subparagraph 5.19(2)(h)(i)), and that the position will be carried out in a location specified for the relevant occupation (subparagraph 5.19(2)(h)(ii)). Additionally, applicants for a Subclass 121 or Subclass 856 visa must have their skills assessed by an authority specified in the Gazette Notice (sub-subparagraphs 121.211(b)(i)(A) and 856.213(b)(i)(A)), and must meet specific employment and salary requirements unless exceptional circumstances apply (sub-subparagraphs 121.211(b)(i)(B) and 856.213(b)(ii)). Employers must also ensure the nominated position's salary meets or exceeds the specified minimum in the Gazette Notice (subparagraphs 121.211(b)(ii) and 856.213(b)(ii)). Employers and applicants are required to adhere to the criteria specified in the Gazette Notice for the nominated positions and visa applications. Employers must ensure that the nominated position corresponds with the occupation and location specified in the Gazette Notice, and applicants must satisfy the skills assessment and employment requirements. Employers must also ensure that the nominated position's salary meets or exceeds the specified minimum, as indexed in the Gazette Notice. The Regulations provide for civil and criminal penalties for non-compliance. Any person who contravenes a provision of the Regulations is liable to a penalty not exceeding 50 penalty units (subparagraph 56(1) of the Legislative Instruments Act 2003). In addition, employers found to have engaged in practices that contravene the Regulations, such as nominating positions that do not meet the specified criteria or paying salaries below the required threshold, may face further sanctions, including the cancellation of their nomination rights under the Employer Nomination Scheme. These penalties serve to enforce compliance with the criteria and maintain the integrity of the visa application process.

Legal classification tags

Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Licensing & Registration
Regulatory Standards

Interactions

Authorises

All Versions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.