Labour market testing: period, advertising and evidence (LIN 18/036)

The Migration (LIN 18/036: Period, manner and evidence of labour market testing) Instrument 2018 (LIN 18/036) was signed on 9 August 2018 by the Minister for Citizenship and Multicultural Affairs under subsections 140GBA(4), 140GBA(5) and 140GBA(6A) of the Migration Act 1958. It was registered on 10 August 2018 and commenced on 12 August 2018. It repealed IMMI 18/059. The latest compilation is Compilation No. 5, in force from 7 December 2024, incorporating LIN 19/268, LIN 20/156, LIN 22/064, LIN 23/072 and the Migration Amendment (Skills in Demand Visa and Related Matters) Instrument 2024.

The explanatory statement states that the instrument determines a period within which labour market testing is required in relation to a nominated occupation, the manner of testing and the kinds of evidence that must accompany a nomination, and that it supports changes made by the Migration Amendment (Skilling Australians Fund) Act 2018.

Testing period

Section 6(1) sets the period as the 4 months ending on the day the nomination form is lodged. Section 6(2) excludes a select occupation.

Advertising requirements

Sections 7 and 8 require the position to be advertised in Australia. Section 7(2) excludes a select position.

Advertising requirements (section 8)

Requirement	Rule	Provision
Language	English	s 8(2)
Number and media	At least two advertisements on a recruitment website, print media or radio with national reach in Australia, or the sponsor’s own website if it is an accredited sponsor	s 8(3)
Who commissions it	Each advertisement commissioned or authorised by the approved sponsor	s 8(3A)
Content	Title or description of the position; skills or experience required; name of the sponsor or its recruitment agency; the salary, if intended annual earnings are lower than $96,400	s 8(4)
Duration	Applications or expressions of interest accepted for at least 4 weeks from first publication; overlapping advertisements may make up a continuous 4 weeks, counting overlapping days once	s 8(5) to (7)

Evidence and select positions

Under section 9(3), a nomination must be accompanied by a copy of the advertising material. For a select occupation or select position, section 9(2) instead requires a written submission from the nominator giving reasons why a suitably qualified and experienced Australian citizen, permanent resident or eligible temporary visa holder is not readily available.

Section 5 defines a select position to include positions requiring an internationally recognised record of exceptional and outstanding achievement (including sport, academia and research, and top-talent chefs), intra-company transfers from an established overseas business, a new nomination lodged solely because a subclass 457, 482 or 494 visa holder’s earnings or the sponsor’s business structure changed, positions with annual earnings of $250,000 or more, positions in ANZSCO Minor Group 253 Medical Practitioners other than 253111 General Practitioner and 253999 Medical Practitioners nec, and positions in ANZSCO Unit Group 4111 Ambulance Officers and Paramedics.

Which nominations it applies to

Section 10 applies the instrument to nominations made on or after its commencement, and section 11 keeps IMMI 18/059 for nominations made earlier. Section 14 treats a Jobactive advertisement before 4 July 2022 as meeting paragraph 8(3)(a). Section 15 applies the LIN 23/072 amendments to section 8 to nominations made on or after 11 December 2023 and to nominations made but not decided by then.