Regional Certifying Bodies | Regional Sponsored Migration (RSMS) - Australian Immigration Lawyers | Australian Visa

Employers in regional areas of Australia are increasingly using the Regional Sponsored Migration Scheme (RSMS) to attract and recruit skilled workers from overseas to fill positions in their businesses.

The RSMS allows employers in regional Australia to ‘nominate’ migrants with suitable skills to come and work for them. The period of employment must be at least two years. In many cases, this can be the first step for many migrants in achieving permanent residency in Australia.

Employer-sponsored nominations for both permanent and temporary visas under the Regional Sponsored Migration Scheme (RSMS) must also carry with them a certification from a relevant and approved Regional Certifying Body (RCB) before they can be lodged with the Australian Department of Immigration and Citizenship (DIAC) for assessment.

Permanent Employer Sponsored Program Reforms - 1 July 2012

The role of Regional Certifying Bodies is to remain un-changed under the Australian Government's proposed reforms to the Permanent Employer Sponsored Program, set to take effect from 1 July 2012. However, the scope of their activities in the certification process and what a Regional Certifying Body will certify when they assess an RSMS employer nomination will change. From 1 July 2012, only nominations lodged under the RSMS Direct Entry stream will need to be certified. In particular, RCBs will be required to certify that:

there is a genuine need for the nominated position
the prospective migrant will be paid the 'market rate'. That is, the nominee will be paid the same as an Australian employed in the same position in the same location.

What is the Regional Sponsored Migration Scheme (RSMS)?

The Regional Sponsored Migration Scheme (RSMS) is an initiative by the Australian Government which enables employers in regional areas of Australia, or in areas of low population growth, the opportunity to nominate and sponsor skilled workers from overseas to fill positions in their businesses which cannot be filled from within the local labour market.

The RSMS covers all areas of Australia except Brisbane, the Gold Coast, Sydney, Newcastle, Wollongong and Melbourne. Perth has now also been classified as ‘regional’ for the purposes of this scheme.

Any employer may utilise this scheme, provided that their business is located in an area covered by the RSMS, and that the vacancy needing to be filled in their business falls under the scope of the RSMS program.

The first step in nominating an overseas skilled worker to Australia under the RSMS is for the potential employer to seek certification of their nomination by a Regional Certifying Body (RCB).

What are Regional Certifying Bodies (RCBs)?

Regional Certifying Bodies (RCBs) are state/territory organisations which have been approved by the Minister for Immigration to use their local knowledge of business and labour market conditions in their particular region to assess and confirm whether an application for skilled migration meets the legislative requirements of Australia’s immigration program.

An RCB will certify whether there is a legitimate skills shortage in that area, and whether the position in the employer’s business is a genuine vacancy which falls under the scope of the RSMS program.

Regional Certifying Bodies operate Australia-wide. They are often a good initial contact point for regional employers who are considering sponsoring skilled migrants to Australia under the RSMS. These organisations are able to provide employers with general advice on sponsorship and nominations, as well as connecting potential employers with the resumes and contact details of skilled overseas workers registered on the Skill Matching Database.

A listing of approved Regional Certifying Bodies for each state / territory can be found on the DIAC website:

http://www.immi.gov.au/skills/regional-certifying-bodies.htm

Requirements for nomination under the RSMS:

Among other requirements, Australian immigration law requires that any nomination made under the RSMS must be accompanied by certification from an approved Regional Certifying Body (RCB).

The Migration Regulations 1994 stipulate that an employer making a nomination application under the RSMS program will need to adequately demonstrate the following:

they genuinely require a paid employee to fill a vacant position in an active and lawfully operating business in regional Australia;
they are able to offer the nominee full-time employment for a period of at least two years in their business in regional Australia;
that the work to be performed by the nominee requires an Australian standard qualification of diploma or higher;
they will provide working conditions and wages which meet the relevant Australian standards, legislation and award rates;
they have had the vacant position in their business certified by an approved Regional Certifying Body; and
they are of good standing.

What does a Regional Certifying Body certify?

Regional Certifying Bodies will assess a nomination against the above requirements and determine if the nomination has met all of these requirements.

It is up to individual certifying bodies whether or not to certify a nomination. Their knowledge and understanding of local labour market conditions and the employment needs of their area will largely inform this decision.

For a nomination to be certified, the RCB will need to be satisfied that local labour market conditions are such that the position could not be filled locally, and that all of the following eligibility criteria have been met:

there is a genuine need for a paid, full-time employee in the nominating business;
the employer will be the direct employer of the sponsored worker;
the nominating business is actively and lawfully operating in a regional area of Australia;
the nominated position is available for at least two years;
the nominated position requires qualifications equivalent to at least the Australian diploma level (unless the appointment is ‘exceptional’); and the nominated position relates to an an occupation approved under ANZCO.

Exemption from eligibility requirements

In exceptional circumstances, DIAC will allow an exemption from one or more eligibility requirements of the RSMS.

Where a potential employee cannot meet the skill, language or age requirements, the applicant is entitled to lodge a submission with DIAC for an exemption on the grounds of ‘exceptional circumstances.’

In this case, DIAC will assess information obtained from the applicant (as well as the employer, if applicable), to determine whether there is anything about either the applicant or the position which could be considered ‘exceptional.’

To determine which circumstances are likely to be considered by DIAC as ‘exceptional’ and thus exempt from the usual eligibility requirements, see DIAC’s Exemption from Eligibility Requirements page.

What is the process for obtaining certification by a Regional Certifying Body?

For an employer to nominate a potential employee under the RSMS, the employer must complete Form 1054 - Employer nomination under the Regional Sponsored Migration Scheme.

1. The nomination must be signed by the employer (or by someone with the legal authority to act on the employer’s or organisation’s behalf).

2. The completed form will then need to be lodged with an RCB in the local area to await certification.

3. An application for certification from an RCB should include sufficient and appropriate documentation to prove that all of the eligibility criteria for nomination under the RSMS program have been met.

4. The RCB may request at any time that the employer provide them with additional information regarding the nomination.

If the nomination is certified by the Regional Certifying Body

If the Regional Certifying Body is satisfied that the employer’s nomination meets all of the eligibility requirements, it will officially certify that nomination by stamping and signing the relevant section on Form 1054.

The Regional Certifying Body will then return the certified nomination to the employer so that the employer can then lodge their nomination with DIAC.

Certified nominations need to be lodged with DIAC within six months of the certification having been received. This ensures that the conditions assessed by the certifying body (such as the labour market and the genuine need for that position within that business at that time) will remain relevant to the nomination.

Note: Obtaining certification by a Regional Certifying Body does not automatically guarantee that the nomination will also be approved by DIAC.

If the nomination is not certified by the Regional Certifying Body

If a nomination is not approved by the RCB, and is uncertified, the employer will be advised of this decision in writing. The reasons for this decision will be stated in the refusal letter.

A decision to withhold certification from a nomination application can be appealed through the Migration Review Tribunal. This tribunal has the power to review decisions made by RCBs and to overturn them if it sees fit.

The Regional Certifying Body will separately advise the department if it certifies or refuses to certify an employer’s nomination.

The nominee

Generally, unless it can be demonstrated that ‘exceptional circumstances’ apply regarding a proposed nominee’s age, English or skill level, a proposed nominee should:

be under 50 years of age at the time of application;
have ‘functional’ English;
have formal qualifications of at least Australian diploma level.

In some cases, the nominee is also required to be eligible for Australian licensing and/or registration, or for membership with an appropriate professional body.

The nominee’s visa application

A nominee will need to complete visa application Form 47ES - Application for employer sponsored migration to Australia. They will also need to pay the applicable Visa Application Charge upon lodging their application.

A nominee’s visa application may be lodged at the same time as, or after the employer’s nomination is lodged with DIAC. The nominee is permitted to submit their visa application before the employer’s nomination has been approved, but if the employer’s nomination is not approved, the Visa Application Charge paid by the nominee is not refundable.

DIAC will accept a nominee’s visa application up to six months after approval of the employer’s nomination has been registered.

If a nominee fails to meet the visa criteria

If an employer’s first choice does not meet the criteria for the grant of a visa, in most cases it is still possible for the employer to recruit another suitably skilled overseas worker without beginning a new nomination process.

If all elements of the nominated position remain unchanged, including the position description, salary and working conditions, and the new nominee lodges a visa application with DIAC within six months of approval of the employer’s original nomination, then a new nomination form will not be required.

The cancellation of a visa

The Migration Act 1958 allows DIAC to cancel an RSMS visa where the employee has not commenced employment with the employer within six months of arriving in Australia, or within six months after the visa has been granted if the employee is in Australia.

DIAC also has the power to cancel an RSMS visa if the employee leaves the position within two years of the commencement of their employment, for reasons within their control.

Help with obtaining certification by a Regional Certifying Body

Haag Walker Lawyers can assist you in the process of having your nomination application certified by an approved Regional Certifying Body, as well as with lodging a completed and persuasive nomination application with DIAC.

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