Don’t Poke a Sleeping Bear: Labour Market Testing for 186 Visas

Is it necessary to undertake labour market testing (advertising) for a role to be sponsored under a permanent subclass 186 ENS visa?

It was never required in the past. Arguably it isn’t required now, for there is no such criterion in the legislation.

However there is a pandemic and mass unemployment.

So Home Affairs has recently communicated an “expectation” that 186 applications will provide evidence of the role having been advertised – even where you have been sponsoring the nominee for the last 3 years on a TSS visa and wish to take advantage of the mandated pathway for transition to permanent residence.

This new “expectation” has been shoehorned into the genuineness requirement.

The official policy that followed is a little less strident. Here’s an excerpt:

The COVID-19 pandemic has severely disrupted Australia’s labour market and many Australian workers have been stood down or have had their employment terminated.  As a result, the Government is committed to ensuring that Australian workers are prioritised for job opportunities.  When determining whether there is a genuine need for an overseas worker, decision makers are expected to pay more attention to relevant factors in the COVID-19 environment.

When making this assessment, decision-makers should consider information contained in the online application form and other supporting documentation, including that related to the nature of the business and the employment structure.  They should also consider factors including:

whether the employer has sought to find an Australian worker for the position, such as through advertising the vacancy on the Government’s Jobactive website or through other national advertisements


It’s unclear if this new “expectation” will in fact be applied rigidly. It’s of dubious validity and open to challenge, but in general, most will prefer not to poke a sleeping bear.