Genuine Need in a 186 Nomination: What the Department Looks For

Every Employer Nomination Scheme (subclass 186) nomination in the Temporary Residence Transition (TRT) and Direct Entry (DE) streams must show a genuine need for the nominee to be employed under the employer’s direct control. It is one of the most common reasons nominations are questioned, especially for small or new businesses.

What the Department considers

Under the Department’s instructions, officers consider the nomination and supporting documents, and whether the position:

• is consistent with the business’s regular and ongoing activities, for example as shown in an organisation chart;
• has changed over time;
• is still genuinely needed in that ongoing activity;
• helps maintain or increase the volume or quality of the business’s output.

For TRT nominations, history helps. The position has usually already passed the genuine position test for the worker’s 457 or 482 visa, which lends weight to the claim.

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Extra factors for Direct Entry

• growth in business activity, or real plans to expand;
• overtime worked by existing staff;
• a position that existed before and became vacant through staff turnover;
• whether the position is already filled by a temporary visa holder;
• whether the position may have been created mainly to secure a migration outcome.

If the business is diversifying, the Department expects the new activity to be logical and legitimate, with evidence such as market research, a business plan with timelines, budgets, premises and funding.

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Red flags

Red flag	Why it matters
Redundancies, reduced hours or reduced pay for staff in the same or similar positions in the last 12 months	Suggests the business does not need extra staff in that role
Temporary visa holders on worse conditions than Australians	Raises concerns about the genuineness and fairness of the role
The nominee is a relative, director, owner or close associate	The position may exist mainly to secure a visa
A very new business, small turnover or few Australian employees	May not support the salary or the need for the role
A salary well below industry standards, or above 250,000 dollars and out of line with the market	Can suggest the role is not genuine
Any sign the nominee paid for the nomination	Referred for further investigation. See paying for visa sponsorship

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Is self-sponsorship allowed?

Yes, but carefully. The Department’s policy says self-sponsorship is not prohibited, but there must be a reason for the position other than giving the person a long stay or permanent residence. An example the Department gives is an entrepreneur relocating an innovative business to Australia and creating jobs for Australians. Read more about business structures in ENS nominations.

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The TRT exemption for some occupations

Regulation 5.19(7) switches off the genuine need, direct control and two year full-time requirements for TRT nominations in occupations specified by the Minister. The Department’s example is medical practitioners who pay a service fee to work from a clinic. See our article on the 186 TRT rule for medical practitioners. There is no equivalent exemption in the Direct Entry stream.

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What you should do now

• Explain the role: describe where the position sits in the business and why it is needed now, with an organisation chart.
• Check recent staffing changes: if you have reduced staff, hours or pay in similar roles, explain why in the nomination.
• Back up growth claims: provide contracts, sales figures or business plans that support any expansion.
• Related nominees: if the nominee is a relative, owner or director, prepare evidence of the commercial reason for the role.