COVID-19 – Immigration FAQs for Employers
Because an employee is a work visa holder do they get treated differently from other employees in the current environment?
Can an employer obtain the Government wage subsidy for employees who hold a work visas?
If an employee is currently overseas on leave, but they are normally employed in New Zealand and otherwise meet the criteria for the wage subsidy scheme, you can seek the wage subsidy for them.
One of my employees is a work visa holder and is now either working less than, or being paid for less than, the hours set down in their employment agreement. Will this be a problem for their visa?
INZ has advised “Officials are urgently looking at further options to provide flexibility to visa conditions for temporary work visa holders and providing advice to the Government. The Government is actively considering a range of options and will make decisions as soon as possible”.
Unfortunately we are unable to continue to employ our work visa holder. What should we do and how can we advise our employee?
If your employee’s work visa has the condition that they can only work for your business and their employment is terminated then you are obligated to contact INZ and advise that the employment has ended, and no reason needs to be given. There is no requirement to advise INZ if the employee holds an open (not employer specific) work visa. Once the employment has been terminated the process to re-employ the employee in the future may comprise significant challenges including job advertising and long visa processing delays. If the employee’s employment has not actually been terminated and they retain a valid and appropriate work visa then they could resume work immediately.
If the employment is terminated the advice to your employee would be to first try and obtain a replacement job, although this will be difficult at this time. If a replacement job is obtained than a new work visa, or a Variation of Conditions, application must be made and approved before they can begin in their new employment role.
Many visa holders who lose their jobs will be facing immediate financial hardship and will also have very limited ability to travel home. These workers are particularly vulnerable. There is a possibility that the Government will relax work visa rules temporarily to allow workers flexibility to work in the horticulture industry and this may help these workers for a short period.
Is it possible to apply for a new work visa now?
INZ is still operating a skeleton staff for the priority processing of visas for health and essential workers, and applications which involve exceptional or humanitarian circumstances to allow for re-entry to New Zealand. Some INZ staff are also able to work from home. Normal visa processing is expected to resume immediately after the lockdown has ended.
Although an employee’s work visa may have already been automatically extended to 25 September we recommend consideration be given to applying for a new work visa, for the period beyond 25 September, sooner rather than later. This is because there are around 120,000 temporary visas which will now expire in September, including over 30,000 work visas, and there will be long delays in visa processing as a result. Visa applications are generally processed in the order lodged so best to get in the queue early. There is also the potential for changes to work visa instructions (policies) to reflect the expected labour market changes and it may be beneficial for applications to be lodged and processed before these changes (if any) are introduced.
Our advice for employees who have work visas expiring at any time during 2020 is to consider lodging their work visa application as soon as possible to avoid potentially long processing queues and the possibility of instruction changes.
Our employee has applied for a visa through our business. Will already-lodged visa applications continue to be processed during the lockdown?
There is the ability to escalate the processing of particular visa applications but the current circumstance would require a very compelling case. If you believe you have such a case please talk with one of Pathways’ advisors.
We are an INZ Accredited employer and our accreditation requires renewal. What should we do?
As an INZ Accredited Employer our employees holding work-to-residence work visas must be paid a minimum wage (of either $55,000 pa or $79,560pa) for a 40 hour work week and we are unable to pay this at present. What can we do?
We do not as yet know if, or how, INZ will approach this situation in the future but it is hoped that INZ will amend their Instructions in a manner which “voids” the time impacted on by Covid-19 from the future residence application assessment.
Our employee’s work visa has already expired, what can we do?
If a new visa application has not been made, and the visa has expired, then the employee is now unlawful. In this situation a request, pursuant to Section 61 of the Immigration Act, must be made to INZ for the employee to regain their lawful status. This request essentially takes the form of a new visa application but INZ can decide whether to process this request or not and is not required to give any reasoning for refusing such a request.
For any employee in this situation it is in their interests to make a Section 61 request as soon as possible to keep their period of being unlawful to a minimum. INZ is continuing to give priority processing to all Section 61 requests.
What is an interim visa?
We have a new employee who has been approved for a work visa but has not yet been able to enter the country and their visa first-entry date will expire soon. Can this entry date be extended?
- essential health worker
- other essential worker
- Tongan or Samoan national requiring essential travel to New Zealand
- partner or dependent child of student or work visa holder
- partner or dependent child of a New Zealand citizen or resident
- Australian citizen or permanent resident that normally resides in New Zealand
- humanitarian
As yet INZ has not decided whether it will extend the visa first-entry date for other visa holders and has advised “This is a rapidly evolving situation and we need to ensure that any decisions take into account the wider impacts of COVID-19, including any changes to the labour market”. This highlighted wording shows that INZ is already positioning itself to raise the future threshold for work visa applicants and if work visa holders are let go now it may be difficult, depending on their role, to recover their work visa status.
Our existing work visa holder was overseas on holiday when the borders were closed. What can they do?
Are there any special work visa provisions for essential businesses and essential workers?
Also International Students currently employed in healthcare roles (including aged residential care) will now be able to work full-time (instead of only 20 hrs pw) for three months in order to support the public health response to COVID-19.
‘Lower skilled’ temporary healthcare workers that are currently in New Zealand can now work in New Zealand for an additional 12 months, making a total of 4 years, before they are subject to the stand down period.
What are the conditions applying to our employee’s work visa?
Some work visas are “open” and the wording on the visa letter states the holder can work for any employer in any role. These visas are normally held by partners of New Zealand residents or citizens, partners of work visa holders and of some student visa holders. International students who have graduated in New Zealand may also hold open work visas.
There are also working holiday visas issued pursuant to the many reciprocal working holiday schemes that New Zealand is a party to. These visas also have “open” work conditions however they also have additional conditions such as not allowing permanent employment and other conditions relevant to the individual country schemes.
Essential Skills work visas include conditions detailing the employer name, job role and employment location, and the employee can work only, and exactly, in accordance with these conditions. The visa letter may also include a minimum pay rate that must be paid.
A Variation of Conditions, or a new work visa, application must be approved before an employee can change any aspect of their employment role.
All visas are now issued electronically by email as a letter and labels are no longer endorsed in passports.
Employers can register on the INZ website to directly verify their employees’ visa status and conditions – see Visa View Guide
Our work visa holder has applied for NZ residence. The business has been restructured and some staff have been made redundant but the work visa holder’s role has been maintained, unchanged. Would this situation effect the employee’s residence application?
Our work visa holder has applied for NZ residence. The business has been restructured and we have had to reduce this employee’s hours and wages. Would this situation effect the employee’s residence application?
However, given that the reduced hours/wages are a direct consequence of an exceptional event, and the resulting Government directives, there is a case for INZ to recognise this situation with a change in Immigration Instructions. At this time we cannot pre-empt how INZ will address this situation and, in our view, the number one priority is for the employee to maintain their employment role and on whatever terms are agreed with their employer. Overcoming INZ policy thresholds is tomorrow’s battle!
Our work visa holder has applied for NZ residence. The business has been restructured and we, unfortunately, must terminate their employment. What should we do and how would this situation effect the employee’s residence application?
In this situation the employee has an obligation to also advise their INZ residence case manager of their change in circumstance and that their employment has ended. While this would normally mean their residence application is then unable to be approved we recommend that they DO NOT withdraw their residence application. They should firstly use their best endeavours to obtain new employment and replace the employment in their lodged residence application. If this endeavour is not successful they should wait on INZ to write to them detailing their concerns and even if the employment requirement cannot be appeased there is the option of allowing the application to be declined and accessing appeal rights (and professional guidance should be sought in this regard).
However it is important the employee keeps INZ updated as the withholding of material information can be viewed by INZ as a potential character matter.
COVID-19 and the lockdown have necessitated changes to our business. If an employee needs to vary the conditions of their visa, what can we do?
However, if yours is an essential business, your employee may be able to apply for a Variation of Conditions. Effective from 16 April 2020, and only while New Zealand remains at Alert Level 3 or 4 and for the six weeks following:
- Work visa holders with employer-specific work visas already employed in essential services will be able to vary their hours and be redeployed to do other roles within their current workplace. They can also perform their current role in a different workplace to help essential businesses keep operating.
- International students who are already employed in an essential services role will be able to work longer hours for their current employer.
Our employee is on an open partnership work visa and their partner has lost their job. What impact does this have on our employee’s visa?
A second option is to consider the possibility for your employee to apply directly for an employer-assisted work visa.
If neither of the above options are possible within a reasonable period, say 4-6 weeks, then the partner is obliged to advise INZ of their change in circumstances and to change their visa – and/or INZ will direct them to change their visa most likely to a visitor visa. If this happens then your employee must also change to a visitor visa which will preclude them from working.