COVID-19 – Immigration FAQs for Employers

The COVID-19 crisis and current lockdown has impacted on everyone and we are all grappling with the ramifications and permutations of what this means for our businesses, our future and particularly for our staff.

Many of us have employees from overseas and we recognise the contribution these migrant employees make to New Zealand businesses is significant, and many businesses are increasingly reliant on their skills.

Migrant employees are particularly vulnerable, and their personal situations are extremely uncertain, at this time. Most are a long way from home and their employment in New Zealand is critical to supporting their families. Many will be extremely anxious and it is important employers are knowledgeable, or seek expert advice, about their employees’ visa situations and their own obligations, and manage these correctly and appropriately.

As with most happenings at present, including the situation with visa holders, the policy has not been written to accommodate this extraordinary event. We expect that Immigration New Zealand (INZ) will proactively and positively move to alleviate the current regulatory shortcomings, particularly into the unavoidable breaches of visa conditions arising from the impact of Covid-19. However the situation for migrant employees moving forward is much less clear and there can be little doubt that there will be greater obligations on all employers, and much higher thresholds to be met, in order for new work visas to be issued in the future.

Pathways’ has compiled this list of FAQs from the questions being asked by our own corporate and visa holder clients to assist employers. This information is accurate at this time but is subject to change and should not, by itself, be relied upon as each visa situation must still be assessed on a case by case basis taking into account all the circumstances involved.

If your, or your employee’s, questions are not answered in this FAQ please contact a Pathways Licenced Immigration Adviser by telephoning (07) 834 9222 or by emailing [email protected].

The Pathways Covid-19 employer Q & A service is free of charge – we are in this together.

No – irrespective of the employee being a work visa holder the terms and conditions of their employment agreement, including annual and sick leave provisions, and employment laws, still apply and any changes must be negotiated and agreed in good faith before being implemented. However such employees must always maintain a valid and appropriate work visa to work in their employment role.

Yes – if an employer is eligible for the wage subsidy then this can be applied to all employees who are legally working for them. Employees who have a New Zealand resident or work visa, or a condition on their New Zealand temporary visa that allows them to work in New Zealand, are deemed to be legally working in New Zealand.

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.

For a work visa holder in particular it is important that any changes to their employment agreement are recorded and agreed in writing as the change in work hours and pay can constitute a breach of their visa conditions.

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”.

Firstly, if this employee is someone who is valued and who will be wanted to resume work when business conditions improve, then our advice is to retain them as an employee as much as is possible in the current environment, perhaps on unpaid leave. At some point the Government will need to decide on how to manage the new employment reality in New Zealand post Covid-19 and will need to balance the desire to get New Zealanders back into jobs with the need for the skills required for employers to get back to full production as soon as possible. New Zealand’s current migrant workforce holds many of these skills and if these are lost to the country they are unlikely to return any time soon – meaning the ability and timeline for businesses and New Zealand to recover will be significantly impeded. The Prime Minister’s recent rebuke of the comments by an Australian Government Minister regarding New Zealanders in Australia and that Australia needs the New Zealand workforce to rebuild their economy could also apply to the migrant workforce in New Zealand.

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.

The Government’s epidemic management notice relating to immigration matters came into effect on 2 April.  This legislation has already resulted in the 85,000  work, student, visitor, limited or interim visa holders, with visas expiring between 2 April and 9 July (inclusive), having their existing visas automatically extended to 25 September 2020 on the same conditions as their current visa. Please check with your employee who should have been emailed confirmation on 3 April of their new visa expiry date. Employers can also register on the INZ website to directly verify their employees’ visa status – see Visa View Guide

If an employee in this situation has not received confirmation of their visa extension they should contact INZ directly at 0508 558855 or 09 9144100 or contact Pathways to investigate further on their behalf.

Yes – INZ’s online application system is still operating and new work visa applications can still be submitted online. However because the INZ Branch Offices are closed for the lockdown it is not possible to lodge any paper-based applications.

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.

Probably not – unless the visa is for a health or essential worker who is urgently required to support the fight against COVID-19.

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.

It is important Accredited Employers continue to apply for renewal of their accreditation using the INZ online application form, and to do so before their existing accreditation expires. Ongoing accreditation is required to ensure an employer’s work-to-residence work visa holders retain their eligibility to apply for residence in the future.

This issue will be of great concern to these particular employees and their families as this minimum income threshold must be maintained for these employees to transition to New Zealand residence in the future. For these employees the retention of their job should be the main priority, and to return to their pre-lockdown wage levels as soon as possible.

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.

If the employee made a new visa application before their visa expired they should have been issued an Interim Visa. If the new visa application is for the exact same employment role as their existing visa then they can continue to work in this role on their Interim Visa. Similarly if the employee is on an open work visa based on partnership and applying for the same visa again then the Interim Visa will also allow the employee to continue working.  If there has been a change in the role or the visa type then it is possible their Interim Visa may not allow them to work and advice should be sought.

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.

An interim visa is issued when a person has applied for a new visa and their existing visa expires before the new visa is finalised. The interim visa enables the person to remain lawful while their new visa is being processed. In this situation employers should check that the conditions of the interim visa allow the person to continue to work as this is not always the case.

If you and/or your employee are able to make the response by email then still do so, otherwise email the immigration case officer and request an extension to a time, say, two weeks after the end of the lockdown. The likelihood is that any such communication will result in an “out-of-office” response in which case the matter should be taken up with INZ again after the lockdown has ended,

Yes – but most likely only in the following circumstances. INZ have implemented a process to allow people not included, or who are exempt, under the current travel ban to be granted a visa or a Variation of Conditions (to extend their first entry date) to travel to New Zealand if they fall into one of the following categories:

  • 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.

This employee is presently caught, as per the previous FAQ, and unless they are an essential worker they will have to remain overseas until the border re-opens. If this is an extended time INZ may also wish to see evidence their employment is still ongoing before allowing their re-entry.

Yes –  changes have been made to provide flexibility for some workers working in essential businesses and for those who are deemed to be essential workers. These include provisions to make it easier for student and work visa holders, already employed by a supermarket, to work extra hours from 25 March to 25 April 2020.

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.

It is important, and especially now, for employers to check the conditions and dates detailed on their employee’s visa letter.

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

The residence application requires the employment to be sustainable which basically means the employer must be in a sufficiently sound financial position to pay the employee’s wages. If this matter is raised as a concern by INZ it can normally be appeased by providing favourable and credible financial projections.

Potentially yes – whether the residence application is made under the Skilled Migrant Residence category or the Residence-from-work (Accredited Employer) category there are minimum criteria for wages and work hours that must be met and for which there is no discretion (except by the Minister).

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!

If the employee’s work visa is specific to their employment then the employer must advise INZ the employment has ended; there is no requirement to advise INZ if the employee holds an open work visa.

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.

A Variation of Conditions application is usually a hard copy application and cannot be submitted during the lockdown period. INZ are currently working on a process to facilitate these applications to be made online or by email. Please check this page or the INZ Website for updates.
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.

As a first step, the partner who has lost their job should endeavour to find replacement employment and to change their work visa so they can begin this new employment. If this can happen then there is no impact on the employee’s visa situation.

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.