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Visa and appeal processing as we move through Alert Levels 

Is Pathways available to assist me with my visa queries?

Our physical offices were closed but we remained open for business throughout the lockdown at Alert Levels 3 and 4. Now that we are at Covid-19 Alert Level 2, our Hamilton and Wellington offices are open again. In order to best protect our staff and our clients we have the following protocols:

• We will work remotely as much as possible by phone, email, skype and zoom.
• Any meetings will be by absolute necessity and by appointment only.
• Strict social distancing to apply – no handshakes.
• Personal details to be recorded for contact tracing.
• Hand sanitiser must be applied by everyone entering our office.

These protocols do not compromise our ability to continue to deliver the high quality, trusted and expert immigration services for which Pathways’ is reputed.

Is INZ still accepting and processing visa applications during Alert Level 2?

To date, the INZ priority has been to focus its limited resources on implementing the Epidemic Management Notice, pushing through applications from individuals who have a critical purpose for coming to New Zealand and processing Section 61 requests. Now that Alert Level 2 has started, INZ processing efforts will be expanded as follows:

Residence Applications

Priority will be given where the applicant is in New Zealand. For onshore applications priority will be given as below:

  • For Skilled Migrant Category (SMC), priority will be given to applications with job offers where:
    • Applicants have an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
    • Applicants hold current occupational registration where registration is required by immigration instructions.
  • For Residence from Work Category applications (Talent (Accredited Employer), Talent (Arts, Culture and Sport), South Island Contribution, Religious Worker and Long Term Skill Shortage List), priority will be given to:
    • Applications which include a job offer with an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
    • Applications which include a job offer which requires occupational registration where occupational registration is required by immigration instructions.
  • Second priority will be given to residence class visa applications where the applicant is out of New Zealand.

Temporary Entry Class Applications

  • Priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand.
  • For Essential Skills work visa applications, Immigration instructions require INZ to consider a range of factors, including the need to help New Zealand businesses provide their services, while protecting the employment opportunities for New Zealanders.
  • For an Essential Skills work visa to be granted, INZ must be satisfied that at the time the application is assessed there are no New Zealanders available to do the work being offered.

Will EOI draws continue?

Skilled Migrant Category and Parent Category Expression of Interest (EOI) draws have been deferred. INZ has reduced processing capacity during the COVID-19 Alert Levels, and it is difficult for applicants to obtain the required documents and evidence to submit an application at this time.

The deferrals are a temporary measure, and INZ have stated that they will reassess this policy as the COVID-19 situation develops.

I received an Invitation to Apply just before/during the COVID-19 lockdown, which made it hard to submit an application. Is there any extension of timeframes?

If you:

  • submitted an Expression of Interest (EOI) for a Skilled Migrant Category (SMC) residence visa, or
  • submitted an EOI for an Investor 2 residence visa, and
  • received an ITA between 1 November 2019 and 15 April 2020

–then you now have an additional six months to submit your residence application.

I was issued a Potentially Prejudicial Information (PPI) letter on an application just before the lockdown, or during Alert Level 2, what should I do?

For applications where a PPI letter was sent prior to 25 March 2020, the due date for response is extended until Friday 12 June 2020 (4 weeks after New Zealand entered Alert Level 2, allowing for the statutory holiday on 1 June 2020).

For applications where a PPI is sent on or after the commencement of Level 2 (i.e. 14 May 2020), the applicant has 4 weeks to respond.

INZ recognises that circumstances are difficult and some information may be difficult to obtain at this time. If you require a further extension, INZ will be considered on a case by case basis. It is recommended that you contact your case officer to discuss if necessary. 

I am a New Zealand resident and I received a deportation liability notice, what should I do?

If you have received a deportation liability notice from Immigration New Zealand you should urgently seek professional advice.

If your deportation liability has been previously suspended you do not need to do anything further, you will need to ensure to comply with the suspension terms stated in the notice.  If your deportation liability is not suspended then you have 28 calendar days to submit an appeal to the IPT against deportation liability. There is no extension on the timeframe to appeal regardless of the lockdown and the broader COVID-19 response. If the appeal opportunity lapses then you will be deported.

If you have received a letter from INZ resolutions with a questionnaire you are strongly encouraged to seek specialised professional advice.

I am a temporary visa holder and I received a deportation liability notice, what should I do?

It is our strongest recommendation that anyone facing deportation liability has a specialised adviser or lawyer represent them as there are very serious consequences if deportation proceeds, and these are very complex matters.

There are no options for extension of any of the timeframes provided for response and appeal.  You will have 14 calendar days to give good reasons to INZ compliance to consider cancelling your deportation liability, and 28 calendar days for appeal.  The appeal timeframe is not paused while waiting on INZ compliance to make a decision. There is no extension on the timeframe to appeal regardless of the lockdown and the broader COVID-19 response. If the appeal opportunity lapses then you will be deported.

My resident visa application was declined and I want to appeal, what should I do?

The 42 day deadline begins from when the decision is received.  There are no options for extension of any of the timeframes provided to appeal regardless of the lockdown and the COVID-19 response. If the appeal opportunity lapses then there is no way to later recover this.

Here at Pathways our team includes specialised advisers who work on these matters and who are available to assist you.

Will my appeal be considered during Alert Level 2?

Most appeal considerations were on hold during lockdown but they have resumed.

Visa expiry and visa extensions

My visa has expired and I am now unlawful, what should I do?

If you are unlawful you should urgently seek advice on submitting a Section 61 request to regain your lawful status. For anyone who is unlawful it is always in their interests to make every endeavour to recover their lawful status sooner rather than later.

My temporary (work, student, visitor, limited) visa expires between 2 April and 9 July, what do I do?

Your visa will be automatically extended to 25 September 2020 on the same conditions as your current visa and you are not required to undertake any action. Confirmation of the visa extension will be emailed to you by INZ and you should follow up with INZ if you do not get this email before your visa expires.

I want to apply for a longer term visa beyond 25 September what can I do?

INZ is operational and new applications can still be submitted. The processing timeframes may be longer than usual as priority is being given to applications for “essential workers” and Section 61 requests.

I have an approved visa but am currently offshore. Can the first entry date on my visa be changed to allow me to travel later instead of applying for a variation or new visa? Or, can my visa be extended so I don’t need to re-apply?

INZ are aware of this concern, but have not yet announced a decision. In the case of work visas, INZ have communicated that they will be considering the wider impacts of COVID-19, including changes to New Zealand’s labour market when arriving at a decision. For visitors, INZ are again aware of this concern and working towards a resolution, but it is not a priority at this time.

It is hoped that the recently passed Immigration (COVID-19 Response) Amendment Bill 2020 will help the Government to provide certainty on these questions.

Varying visa conditions

I need to vary the conditions of my visa (such as to change employers) – what can I do?

INZ are currently working on a process to facilitate the high number of applications. We will update this page as soon as this process is announced.

However, if you are already employed as an essential worker, there is a specific protocol. Please contact Pathways if you require assistance. 

I have a work visa and are either working less than, or being paid for less than, 30 hours a week which is the minimum requirement of my visa – will this be a problem for me?

Usually the requirement would be for you to work, and to be paid for, the work hours set out in your employment agreement but given the unprecedented circumstances, and the government enforced restrictions, our view is that it would be unfair and unreasonable for this situation to be held against you and recommend no action is required at this time but to review this situation often. The recently passed Immigration (COVID-19 Response) Amendment Bill 2020 should help the Government to provide certainty on these questions. 

I am a work visa holder and lost my job, what should I do?

Under normal circumstances you and or your employer would be required to inform INZ about this change in circumstance. However these are far from normal circumstances and we believe the government and INZ will be working on interim measures and processes that will be applied to this, and similar situations, to ensure visa holders are not unfairly compromised by something which is completely outside of their, and their employers, control. We recommend no action at this time except to regularly check back to our website or the INZ website for further updates for updates. In the meantime you could seek alternative employment and be prepared to make a new work visa or variation of conditions application.

The recently passed Immigration (COVID-19 Response) Amendment Bill 2020 should help the Government to provide certainty on these questions.

I have been offered a job in an essential work role and need to change my existing visa, or apply for a new visa, before I can begin work. How can I do this?

There is the ability to escalate a work visa application for an essential skills worker. Please contact Pathways to learn about this process and requirements.

Wage subsidy scheme and Wage subsidy extension

I am a work visa holder and my employer wants to know if they can obtain the Government wage subsidy for me and if this will affect my visa?

All New Zealand employers who have been adversely affected by COVID-19 are eligible to apply for the Wage Subsidy. To qualify a business must:

  • be registered and operating in New Zealand
  • have employees who are legally working in New Zealand
  • have experienced a minimum 30% decline in actual or predicted revenue over the period of a month, when compared with the same month last year, and that decline is related to COVID-19*
  • have taken active steps to mitigate the impact of COVID-19
  • retain the employees named in the application for the period of the subsidy.

Those who have a New Zealand work visa or a condition on their New Zealand temporary visa that allows them to work in New Zealand, come under the definition of legally working in New Zealand.

*For the Wage Subsidy Extension, an employer must have experienced a revenue loss of at least 50% for the 30 days before the employer applies for the extension, compared to the closest period last year.

I am employed in New Zealand but am currently overseas. Am I eligible to receive the wage subsidy?

If you are overseas on leave, but are normally employed in New Zealand and otherwise meet the criteria for the wage subsidy scheme or extension, your employer can seek the wage subsidy for you. The Ministry for Business, Innovation and Employment (MBIE) has advised that you discuss this matter with your employer and agree whether paid or unpaid leave is being taken.

I am in New Zealand on a Specific Purpose work visa and the project has been temporarily suspended due to COVID-19. Will my employer cover my wages under the Government’s wage subsidy scheme?

This will depend on who the employer is as per your employment agreement. If your employer is based in New Zealand then you are most likely to be covered under the Government wage subsidy scheme or extension. In case of employees seconded to New Zealand for a specific project by an overseas company, your wages would be the responsibility of your overseas employer.

I am a work visa holder, can my employer force me to take my leave in this time?

An employer, whether they are using the wage subsidy scheme or wage subsidy extension or not, cannot unlawfully compel an employee to use their leave entitlements. However, your employer may require you to take annual leave, including because of temporary workplace closure due to COVID-19, provided they have first consulted with you and provided 14 days notice before the annual leave is to be taken.

Work visa holder entitlements

Are migrant employees eligible for publicly funded healthcare?

A person is eligible for publicly funded health and disability services if they hold a work visa that either:

  • entitles them to remain in New Zealand for two years or more (work visas start on the person’s first day in New Zealand) OR
  • entitles them to remain in New Zealand for a period of time which, together with the time that person has already been lawfully in New Zealand immediately prior to obtaining the visa, equals or exceeds two years

All temporary visas holders in NZ are eligible for publicly funded healthcare if it is related to COVID-19, regardless of their visa status.

If I am not a citizen nor a resident, will I be able to receive treatment for COVID-19?

All people in New Zealand are eligible for publicly funded services to treat COVID-19. This is regardless of visa status. Anyone who has symptoms of COVID-19 should contact Healthline for free on 0800 358 5453 or their doctor immediately.

INZ have reiterated that immigration status will not impact on a person’s ability to receive healthcare. Their treatment will be in complete confidence and their information will not be passed on to other agencies.

I am a work visa holder can my employer deny me my leave in this time (including sick leave if I am sick)?

Employees are entitled to four weeks of paid annual leave, after each 12 months of continuous employment for their employer.

Employers cannot unreasonably refuse to  allow an employee to take the leave to which they are entitled. However, with regard to when you take leave, your employer may decline a request for annual leave if they are able to provide a genuine business reason for declining.

If you require leave because of COVID-19, you may be eligible for the COVID-19 Leave Support Scheme. 

Employer obligations

What are my obligations as an employer surrounding leave at this time?

Usual obligations continue to apply. An employer, whether they are using the wage subsidy scheme (or wage subsidy scheme extension) or not, cannot unlawfully compel an employee to use their leave entitlements. The Government has also clarified that an employee cannot have their receipt of the wage subsidy made conditional on their taking annual leave. However, you may require an employee to take annual leave, including because of temporary workplace closure due to COVID-19, provided you have first consulted with your employee and given them 14 days notice before the annual leave is to be taken.

Similarly, employers cannot unreasonably refuse to  allow an employee to take the leave to which they are entitled. With regard to when employees take leave, you may only decline a request for annual leave if you have a genuine business reason for declining.

My employee is unable to work as they (or a family member they are caring for) has COVID-19, or are considered high risk. What sick leave entitlements are they eligible for?

The employee may be eligible for the COVID-19 Leave Support Scheme which offers the same rates as the wage subsidy scheme of $585.80 per week full time and $350.00 per week for part time workers.

Do I have to pay the new minimum wage of $18.90 from 1st April?

Employees must still be paid for the work they do.  They must be paid at least the new minimum wage for each hour of work they do, regardless of whether they are working from home or at an essential business.  If you as the employer are unable to amend your payroll system during the Alert Level 4, you should backpay your employees as soon as you are able to do so.

Entering and/or remaining in New Zealand

Are there any exceptions to the travel ban for people who are not New Zealand citizens or permanent residents?

INZ have announced immigration instructions to allow people not included, or excepted under the current travel ban, to be granted a visa or a Variation of Conditions to travel to New Zealand. You can request travel to New Zealand for the following reasons:

  • 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

The threshold for exceptional circumstances is extremely  high. As at 21 May 2020, INZ have received 9,210 requests from people who believe they are eligible to be granted an exception to the border closure. Of the 9,210 requests decided so far, only 1,879 have met the criteria and have been invited to apply for a visa.

Please contact Pathways if you would like to discuss the process and the requirements for making a travel request.

If I am permitted entry to New Zealand, will I have to go into quarantine?

Yes. From midnight on Thursday, 9 April, anyone entering the country will have to undergo 14 days of quarantine or managed self-isolation in a government-approved facility. The Government will cover the cost of accommodation in these facilities.

I am a temporary work visa holder and am currently overseas. I cannot travel back to New Zealand for my job right now, does this affect the validity of my current work visa?

If the work visa is linked to a specific job and the job is still available, then the visa will remain valid and you will be able to travel to New Zealand once the travel restrictions are lifted. You may be able to travel sooner if you meet the exception criteria.

However, if your job is no longer available, then the work visa will no longer be valid.

Essential businesses and essential workers

What is an essential business?

A list of businesses considered essential can be found here.

What is an essential health worker?

A list of essential health workers exempt from the travel ban can be found here.

I am an essential worker on a temporary visa – there have been changes to my work circumstances because of COVID-19. What should I do?

Effective from 16 April, 2020, essential workers are able to apply for a Variation of Conditions of their visa in limited scenarios. 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.

Are there any special allowances for supermarkets and their employees?

Previous immigration instructions that allowed you to work more than 20 hours on a student visa if you were employed at a supermarket on 23 March 2020 ended on 25 April 2020. Employers must apply for a short-term variation of conditions if an employee wishes to work more than 20 hours.

I am a healthcare worker on a temporary visa. Are there any changes I should be aware of?

Immigration Instructions have been issued which change temporary work visa settings to support the health sector response to managing COVID-19.

International Students currently employed in healthcare roles (including aged residential care) will now be able to work full-time for three months (from 3 April to 3 July 2020 inclusive) in order to support the public health response to COVID-19. Normally students are only permitted to work up to 20 hours/week and full-time only during holiday periods.

INZ have also advised that ‘Lower skilled’ temporary healthcare workers that are currently in New Zealand can now work in New Zealand for an additional 12 months before they are subject to the stand down period.

The New Zealand economy is undergoing a dramatic shift because of COVID-19, and the labour market is in the midst of massive upheaval. Jobs and businesses have already been lost, with some sectors – like hospitality and tourism – hit harder than others. Not just migrant workers, but local New Zealand workers are finding themselves suddenly unemployed. As a consequence, New Zealand immigration policy is, and will continue to be affected. Essential Skills work visa applicants should be aware – there will be even greater scrutiny around labour market tests from now on.

According to immigration instructions, to approve an Essential Skills work visa, an immigration officer must be satisfied that there are no New Zealand citizens or residents available, or trainable, to do the job the applicant is being employed to do. To establish this, a sponsoring employer must first make a genuine attempt to attract and recruit a suitable New Zealand citizen or resident for the role.

The requisite recruitment process includes broadly advertising the position to attract local workers. As well as the content of a job advertisement, and the manner in which a job is advertised, immigration officers are instructed that they may take many things into consideration when assessing whether a suitable New Zealander is available for the job which may include any advice from Work and Income, industry stakeholders and unions.

Given increasing unemployment, it is more likely that suitable local workers will be found as a result of this process. In any case, INZ will require more rigorous testing because of the expectation that there is a larger pool of available local workers. An objective of the Essential Skills policy is to not displace domestic workers from employment opportunities. If an employer claims that no suitable New Zealand applicants were found, they will be expected to explain why and to provide appropriate evidence. Further – if an employer claims that no reasonably trainable New Zealand applicants were found – they will be expected to provide evidence for that as well. For jobs aligned with an ANZSCO Level 5 position, it is automatically assumed that an employer is able to train a New Zealand citizen or resident for the role.

In addition to the requirement that no New Zealanders are available to fill the position, an immigration officer must also be satisfied that the employment being offered is sustainable. They must be sure that the position – on the basis of which an employee applies for a work visa – is one that an employer actually needs filled, and can financially afford. INZ looks for things like whether the employing business has suffered major losses, whether the business is in debt, the size of the business and whether there are opportunities for expansion. In a post-coronavirus climate, New Zealand businesses, many of which have seen reductions in revenues, will have a harder time proving that they can realistically afford to hire migrant workers. A greater level of stringency will be applied to checking on the employer’s business situation.

INZ have provided further guidance to immigration officers during this time. Under normal circumstances, the labour market can be assumed to remain relatively static between an employer’s attempt to recruit a New Zealander, and the time at which an immigration officer assesses the subsequent work visa application. However, the COVID-19 lockdown, and travel restrictions to New Zealand have caused much faster movement in the labour market.

Unemployment rates have risen in a short time. StatsNZ has reported that the unemployment rate rose 0.2 percent over the last quarter and is currently the highest it has been since December 2018. According to Government communications, the number of people receiving Jobseeker Support has, at the beginning of May, increased to 184,404. At the same time, 1,720,008 people are associated with paid applications under the Wage Subsidy Scheme.

All of this contributes to making the labour market test more problematic. Coronavirus and its effects mean that an already complicated visa process has become even moreso. It is strongly recommended that if you are seeking to make a work visa application it is in your interests to seek professional advice. Pathways staff are available to help with any queries you have. Contact us today to speak with a licensed immigration adviser.

Immigration New Zealand (INZ) have announced extensions for some residence applicants who have received an Invitation to Apply (ITA).

If you:

  • submitted an Expression of Interest (EOI) for a Skilled Migrant Category (SMC) residence visa, or
  • submitted an EOI for an Investor 2 residence visa, and
  • received an ITA between 1 November 2019 and 15 April 2020

–then you now have an additional six months to submit your residence application.

The normal timeframe to submit an application after receiving an EOI is four months. With the additional six months, the new time allowance is a total of 10 months from the date of the ITA. This extension is an acknowledgement of the significant difficulties applicants have been experiencing in compiling the required documents and information to lodge their residence application.

The Immigration (COVID-19 Response) Amendment Bill 2020, which was passed last week, offered some hope that the Government would exercise its new powers to waive some mandatory document requirements. It appears that a different approach is being taken. Though this extension of time is good news, it strongly suggests that INZ will be unlikely to waive any lodgement requirements pertaining to mandatory documents as it should now be possible to organise these in the extended time being given.

This new move may also enable INZ to stagger their processing of residence applications. The huge queue of unprocessed applications has been a cause of distress for some time now. The global crisis and COVID-19 lockdown have exacerbated this problem, setting back INZ workforce capabilities and slowing down the processing timeframes even further. By allowing applicants more time to submit, INZ are also potentially allowing themselves more time to process applications.

Regardless of this extension, it remains our strong recommendation that all residence applicants submit their applications as soon as possible. Do not delay an application because there is more time.  The processing queue is only getting longer. Applications are prioritised according to new COVID-19 prioritisation criteria. After taking account of these priorities all other applications are assessed in date order of lodgement.

If you would like help with your residence application, or you are having difficulties compiling your residence application documents, please contact Pathways to speak with a Licensed Immigration Adviser.

*Update: this Bill has now been through the select committee process and was passed on 15 May 2020. The Bill has been modified and now contains explicit safeguards designed to ensure that the new powers cannot be used to materially disadvantage the class of visa holders concerned. Exactly what the Government will do with these powers is yet to be announced.*

 

The Immigration (COVID-19 Response) Amendment Bill 2020, introduced to Parliament this week, is intended to give the Government greater flexibility and capacity  to respond to the immigration challenges posed by the COVID-19 outbreak.

The powers set out in the Bill are specifically for the purposes of addressing the COVID-19 outbreak and because the powers proposed are extraordinary, and only for a specified purpose, the powers are time-limited. It is expected the Bill will pass into law by 15 May 2020.

The eight powers the Government is proposing to introduce into the Immigration Act 2009, are:

  • the power to impose, vary or cancel conditions for classes of temporary entry class visa holders
  • the power to vary or cancel conditions for classes of resident class visa holders
  • the power to extend the expiry dates of visas for classes of people
  • the power to grant visas to individuals and classes of people in the absence of an application
  • the power to waive any regulatory requirements for certain classes of application
  • the power to waive the requirement to obtain a transit visa
  • the power to suspend the ability to make applications for visas or submit Expressions of Interest in applying for visas by classes of people, and
  • the power to revoke the entry permission of people who arrive either on private aircraft or marine vessels (to align them with people who arrive on commercial flights, who can already be refused entry).

There are several reasons for the Government to introduce this legislation with urgency.

There are some 350,000 temporary visa holders now in New Zealand who cannot travel home, and this situation may last for some time. Immigration New Zealand already has long visa processing queues and has had, and will continue to have for the foreseeable future, significantly reduced visa processing capability. Immigration New Zealand has a significant visa bottle-neck that is only going to get worse and something needs to be done to address this.

The legislation will enable large numbers of visa holders and applicants to have their visa situations addressed unilaterally, which is a much quicker, more efficient and cost-effective method than having to deal with many thousands of individual visa applications. And, in order for the processing queues not to keep getting longer, the Bill looks likely to stop some new visa applications, potentially visitor and work visas, from being lodged for offshore applicants. This makes sense as these people are currently unable to enter the country anyway until border restrictions are eased.

This Bill is a necessary step to enable swift changes to immigration settings during this extraordinary time and represents a genuine attempt by government to help migrants who are currently in a vulnerable and uncertain visa situation. Our understanding is that these powers will be used for the benefit of migrants, and not to their detriment, and on this basis Pathways’ generally welcomes the legislation – subject as always to the policy detail.

It is not clear at this stage exactly what these powers will mean for particular visa holders or applicants however we have formed the following preliminary views based on our reading of the situation. It should be appreciated that these are only our views on potential outcomes of this Bill at this time and readers should form their own views on what the Bill will mean for them.

The power to impose, vary or cancel conditions for classes of temporary entry class visa holders

Our view is that this power is intended to relax employment conditions and to allow the redeployment of migrant workers to a different employer or location. We are hopeful that this could lead to open work visas conditions for existing work visa holders or, at least, more flexible work visa conditions – possibly for up to 6 months or longer.

Many work visa holders have either lost their jobs or have had their wages and/or work hours reduced, all of which means they are technically in breach of their visa conditions. Varying the work visa conditions could, and should, at least alleviate these current visa breaches. This would be good news for employers also who are equally desperate for stability at this time.

This power could be used to “revisit” already approved offshore work visas which were approved on the basis of labour market conditions at that time. The labour market is now changing and the job may no longer be available or it can now be filled by a New Zealander. Offshore low-skilled work visa holders would appear to be most at risk here.

It is hoped that this opportunity is taken to also address the situation with work-to-residence visa holders whose remuneration has fallen below the policy threshold through no fault of their own.

The power to vary or cancel conditions for classes of resident class visa holders           

Our view is that this power should extend the timeframe in which an offshore resident visa holder has to enter New Zealand for the first time – as these people cannot currently enter New Zealand and are at risk of losing their resident visa status.

The power to cancel resident visa conditions most likely relates to Section 49 of the Immigration Act and could be applied to those conditions which require visa holders to work in specific employment for 3 or 12 months. It could potentially also be applied to Investor Residence visa holders who are required to spend a designated number of days in New Zealand but have been unable to do so due to travel restrictions.

It is interesting that in the introduction of the Bill mention was made of the 20,000 Skilled Migrant Resident visa holders who obtained residence since April 2018. There is no obvious reason to mention this unless thought is being given to using the Bill’s powers to, potentially, extend the travel conditions of Resident Visa holders or even transition these holders to permanent residence.

The practical application of this power remains to be seen.

The power to extend the expiry dates of visas for classes of people

This proposed power could be used to address the situation where an approved visa holder is unable to enter New Zealand by the first-entry date stipulated by their visa. However, this still does not get these people through the border and any extension will need to be aligned with some relaxation of the current border restrictions and we do not know as yet when this will happen.

Another potential application could be to provide a further extension to temporary visa holders in New Zealand, if travel restrictions remain and people cannot access flights to get home. In early April Immigration New Zealand was able to unilaterally extend the temporary visas of some 85,000 visa holders in New Zealand whose visas were expiring between 2 April 2020 and 9 July 2020. All these people had their visas extended to 25 September and this action was enabled under the Epidemic Management Notice issued by the Government. It is pragmatic and cost effective for the Government to manage significant numbers and types of visas in this manner and in conjunction with its COVID-19 management and planning.

The power to grant visas to individuals and classes of people in the absence of an application

This power affords flexibility to accommodate unusual or urgent situations. A specific intention of this power is to allow the grant of visas to persons who are unable to submit an application, for example, due to sickness.

The power to waive any regulatory requirements for certain classes of application        

This would allow INZ to waive mandatory application requirements which may be difficult to meet in the current circumstances. Such requirements could include immigration medicals, police certificates and other mandatory documents which simply cannot be obtained at present. The question remains whether an applicant’s SMC Invitation to Apply (ITA) expiry date will be extended. If the expiry date is not extended can the application be accepted for lodgment with an automatic waiver for particular lodgment requirements or will each applicant need to first obtain a waiver approval from INZ?

The power to suspend the ability to make applications for visas or submit Expressions of Interest in applying for visas by classes of people

The apparent purpose of this power is to stop applicants from lodging new applications. The main reason for this potential outcome is that INZ does not have visa processing capability currently and it does not wish to see the visa queue grow further until it has this capability – which may not be for some time.  This power also accommodates the situation that offshore applicants are not able to actually travel to New Zealand and there is no point in them making visa applications until the border is opened to allow their entry.

There are many possible applications of this power, and the full extent of it is not clear.

In the immediate short term, it could be that INZ will not accept any new visitor visa applications or low skilled work visa applications from offshore applicants. EOI draws for SMC and Parent Category visas have already been suspended, and it is likely, under this power, that EOI submissions could cease to be accepted in these categories for up to 3 months (at a time). Again there is no point in allowing an EOI to proceed to a residence invitation if an applicant cannot provide the mandatory application documents.

We expect that Investor 2 Category EOIs will be unaffected given the clear need for economic stimulation in the wake of COVID-19.

Until more information becomes available, it is not certain exactly what the implications of these proposed powers will be on immigration policy and visa processing but there is no doubt they will be significant and far-reaching – and in the main, will address the current uncertainties of many visa holders.

One thing we do know is that there will be huge financial implications for Immigration New Zealand. It would have lost $20 million or more in foregone application fees from its temporary visa extension action in April and this is likely to rise substantially with actions resulting from this new Bill.

The focus of the Bill is largely on the temporary visa situation, which is understandable. The pity is that there are some 20,000+ residence applications sitting in the queue to be processed. These are for individuals and families whose lives are on hold waiting for the long term security a resident visa will give them to plan and get on with their lives in New Zealand. This empowerment to buy a home and to actually spend money to build their future is exactly the type of impetus New Zealand needs at this time to get the economy moving.  Alas this may be just a bridge too far!

Information about the Select Committee process, including a copy of the Bill is available on the New Zealand Parliament website.

If you would like to discuss what these proposed powers could mean for you and your immigration journey, please contact Pathways to speak with a licensed immigration adviser.

 

Temporary migrant workers and international students, who are already employed in essential services, are now able to vary some of the conditions of their visa. This loosening of visa requirements is intended to make it easier for essential businesses and services to operate during the COVID-19 response. It will allow essential businesses and service providers to maintain their labour pool during a time when new recruitment is very difficult.

INZ have announced that effective from 16 April, 2020:

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 while New Zealand remains at Alert Level 3 or 4 and for six weeks after that.

International students who are already employed in an essential services role will be able to work longer hours for their current employer while New Zealand remains at Alert Level 3 or 4 and for six weeks following. Students who are employed in an essential services role and wish to work more than 20 hours must still meet their study requirements and should discuss their plans with their education provider.

All standard employment law requirements continue to apply to any amendments to an employee’s conditions of work.

Interim visa holders are not able to change their visa conditions under this new special policy.

If you are either a work visa holder or an international student currently employed in an essential services role, you may apply for a Variation of Conditions. There are no fees or levies required to make this application to INZ. However, if you would like professional assistance to apply for a VOC, or would like to discuss these changes in further detail, we recommend you seek licensed immigration advice. Pathways’ staff are working from home while New Zealand is at Alert Levels 3 and 4. Please contact us to speak with one of our advisers today.

More information about Alert Levels 3 and 4 is available at the Government’s official COVID-19 website.

An epidemic notice has been issued under the Epidemic Preparedness Act 2006, in effect from Thursday 2 April 2020. This means temporary visa holders whose visas were due to expire between 1 April 2020 and 9 July 2020, will receive an automatic visa extension.

The uncertainty around coronavirus intensifies uncertainty for New Zealand work visa holders.

The New Zealand Government’s new KiwiBuild scheme will see changes to immigration settings in order to help the construction and housing sector to attract overseas skilled workers.

The government’s response to New Zealand’s shortage of affordable housing is the new KiwiBuild scheme which will see the construction of 100,000 starter homes for first home buyers over the next ten years, with half of those new houses earmarked for the Auckland region.

The Ministry for Business, Innovation and Employment (MBIE) projected in late 2017 that there could be a potential shortfall of approximately 30,000 workers to meet increasing demand in housing and infrastructure, with this number likely to rise as a result of the KiwiBuild initiative. The shortage affects all skills categories in the construction sector but particular growth is expected in the demand for plumbers, electricians, builders, civil engineers and project managers.

The proposed changes, which are expected to come in to force late 2018 or early 2019, include three key components.

The first is a dedicated KiwiBuild Skills Shortage List. This list will identify specific roles for which the immigration process will be streamlined. The list will expand on the innovations introduced in the Canterbury Skills Shortage List, which was brought in after the Christchurch earthquake to help with the city’s rebuild.

For roles included on the KiwiBuild Skills Shortage List, an employer may not need to prove to Immigration New Zealand that they have made a genuine attempt to employ a New Zealand citizen or resident visa holder for the position.

The second component of the change will provide advantages for companies who have proven standards as good employers in the construction sector. Employer accreditation or pre-approval should see faster processing and greater simplicity in visa applications.

Employers will be able to benefit from this streamlined process if they reach high standards of health and safety, have good business practices and can demonstrate good employment conditions, pay, training, skills development and pastoral care.

For employers who comply with the pre-approval criteria this will offer greater opportunities to plan their workforce and hire overseas workers to meet the expected demand.

During periods of skills shortage there is often concern around the risk of exploitation of migrant workers through lower wages and poor working conditions. The third component of the proposed changes will put in place steps to minimise that risk by introducing specific requirements for labour hire companies, establishing a mandatory accreditation scheme to cover third party arrangements.

This Immigration New Zealand accreditation is likely to require labour hire companies to pay workers at least the market rate and offer terms and conditions equivalent to the hire company’s other employees, as well as ensuring equity across all employees’ terms and conditions. The accreditation may also see hire companies having to meet the upfront costs of worker recruitment.

Hire companies will also likely be responsible for ensuring that contracted third parties uphold good practices in the workplace.  Failure to comply with this and any of the new proposed changes could mean that Immigration New Zealand could cancel the hire company’s accreditation and the benefits that go with it.

The Government may also consider the option that work visas issued under the KiwiBuild Skills Shortage list may have more flexible conditions and could, for example, require the worker just to work in their specific role and not restrict the worker to a particular employer or location.

Recruiting to meet periods of high demand and maintaining legal and ethical obligations in employing migrant staff can be complex. We recommend that employers begin this process with the benefit of professional advice and assistance on visa matters from an experienced Licenced Immigration Adviser or Immigration Lawyer.

The Pathways New Zealand team will be monitoring progress on these proposals and will confirm the final details of the changes once they are announced.

Last year some 24,000 work visas were approved for a wide range of migrant trades workers. The demand for skilled workers from overseas to fill New Zealand’s skill shortages, and the forthcoming KiwiBuild requirements, is growing. However, while the numbers of work visas is increasing the pathway for these work visa holders to live and work permanently in New Zealand is getting harder. There are challenges ahead for employers to attract and retain their migrant workers.

In the most recent immigration year to June 2018, some 24,000 overseas workers were approved for work visas under the general category of Technicians and Trades Workers. This number is a 6,000, or 33%, increase over the previous year.

While there were 230,000 work visas approved in total during this year, only 4,000 more than in the previous year, some 145,000 of these work visa approvals were not recorded against any particular occupation. These work visas most likely relate to working holiday, graduate student and various partnership categories which all result in the issue of (open) work visas allowing work in any occupation.

Within the Technicians and Trade Workers category the following occupations had most visas issued last year – carpenter/joiner (2850), motor/diesel mechanic (1050), telecommunications technician (850), scaffolder (700), metal fabricator (675), fitter/turner and fitter/welder (650), steel fixer (575), electrician (460), welder (380), mechanical engineering technician (340), plasterer (300), painter (290), panelbeater (270), sheet metal trades worker (220), brick layer (200), plumber (190) and metal machinist (165).

A number of the open work visa holders will also work in the trade sector so the above figures are indicative only. This situation will become more unclear if the current Government proposal to provide graduating international students with 3 year open work visas is implemented, and if work visas issued under the KiwiBuild programme only designate an occupation and not a specific employer (which may happen). In such instances, the holders of these particular work visas will potentially be more transient as their visas will not tie them to any specific employer. The move towards more accommodating work visas is partly promulgated by the Government’s concern with migrant exploitation and wanting migrant workers to be “less obligated” to some employers.

It is interesting to note that only 1,967 Skilled Migrant Category (SMC) residence applications were approved for Technicians and Trade Workers which is less than half the 4,090 approved in the previous year. When compared to the total number of work visas holders, the small number who have successfully transitioned to SMC residence may be surprising given the skilled employment roles these people have. However this reduction is a direct consequence of the changes made by the previous Government in 2017 which introduced an English test requirement and an arbitrary pay threshold (currently $24.29 ph) for SMC residence applicants. Previously SMC applicants could meet the English requirement through being employed in New Zealand for 12 months and there was no mandatory pay threshold. Although it is understood the current Government is “unconvinced” that the pay threshold is an appropriate mechanism for SMC residence, there is no current priority to effect any change in this regard.

These policy changes have seen the total number of SMC residence approvals reduce from 12,106 applications in the previous year to 8,419 last year (representing 17,000 people). The Skilled Migrant Category is the main category within the New Zealand Residence Programme with around 60% of all residence applicants coming from this and the business categories. The Residence Programme is set every two years and in the two year period to 30 June 2018 the programme was set at between 85,000 and 95,000 people. In fact, only 38,000 people were actually approved for residence in the 2017/2018 year, down on the 47,600 people approved the year before.

To meet the SMC English requirement, applicants’ must achieve an IELTS score of 6.5, or the equivalent in one of the other acceptable English tests. This is a high standard given that the same score, in the IELTS academic version, is required for international students to enter into postgraduate study in New Zealand.

Those workers who cannot meet the English requirement are still able, currently, to transition to residence if they hold a work-to-residence work visa under the Long Term Skills Shortage (LTSSL) policy or are working for an Immigration New Zealand accredited employer. These work visas are issued for 30 months and enable the holder to apply for residence after working in a specified role for a designated employer after 24 months. The catch is the pay rate for the accredited employer role must be at least $55,000 pa based on a 40 hour work week ($26.45 ph). The Government is now reviewing the accredited employer policy with the likely outcome that the pay threshold will be significantly increased – potentially to around $70,000 pa ($33.65 ph). If this happens it will mean that this pathway to residence for many skilled trades workers will be lost and the reason for many employers to become INZ accredited will be negated. Given the current Government’s focus on the regions and attracting migrants to work and settle out of Auckland there is a case to be made for the pay threshold applying to work-to-residence applicants under the accredited employer policy to be lower in the regions so that this pathway to residence can still be viable to attract and retain workers – perhaps $70,000 in Auckland and $60,000 out of Auckland?

There is still an option for those workers holding a work visa issued under the LTSSL work-to-residence instructions to later obtain residence as the current pay threshold for this remains at $45,000 pa. However, most of the roles on the LTSSL require applicants to hold qualifications which are assessed as equivalent to particular New Zealand qualifications and this is often not the case, or the process to establish such equivalence is expensive and time consuming. In reality these qualifications can be quite old and of little current relevance and it is the more recent, relevant, work experience which is of primary interest to the New Zealand employer and the basis on which they are generally offered their trade-related work role. It would be helpful if the LTSSL was revised to place greater emphasis on recent work experience rather than on qualifications as this is really what, in most cases, matters to employers.

The accredited employer and the LTSSL work-to-residence policies do not have any English language requirement.

The situation now is that, of the 24,000 people approved for work visas as Technicians and Trades Workers in the past year, together with those previously approved and still holding work visas, the majority are now (or will soon be) unlikely to have any immediate pathway to residence. This situation has implications for those employers with a significant, or key migrant workforce as they will need to carefully consider how this will impact on their ability to attract and retain such migrant employees. It can be an expensive and time-consuming process to firstly identify, and then facilitate workers to travel from across the world to come and work in New Zealand. Many workers will, understandably, only make this commitment if they can have security about their long term future here. If employers cannot provide this long term security, the reality is that their migrant workers may become unsettled and be more easily motivated to move to higher paying employers or leave New Zealand for other work opportunities offshore or back in their home country.

While a number of migrant workers do move between countries for work, many (if not most) will have considered the potential to obtain New Zealand residence as one of factors which influenced their decision to come to New Zealand. For these workers, employers can consider several options to help keep these workers motivated and retain their services for the long(er) term if they do not have a current pathway to residence.

Firstly, there is the option of providing English language assistance and support. This will enable workers to improve their language skills, make any communications more efficient, reduce misunderstanding and mistakes in the workplace, and help develop their self-confidence and social networks. Progressing migrant workers English skills can lead them to achieving the English language requirement to apply for residence under the Skilled Migrant residence category and will genuinely help with their successful integration into New Zealand society.

Secondly, employers can assist and support their workers to achieve recognised New Zealand qualifications. This can enable them to become eligible for Skilled Migrant Category qualification points, which may also open the option for a work-to-residence work visa under LTSSL instructions. Supporting migrant workers to attain New Zealand qualifications can also promote greater employer loyalty and commitment to the employer.

Workers who are accompanied to New Zealand by their family are generally more settled and better placed to manage the transition – although care is needed that any expectation they may have about what is possible for their future in New Zealand is feasible and well founded.

With continuing skills shortages and KiwiBuild on the horizon, New Zealand employers need to be increasingly aware of what motivates their migrant workers to come and stay. Employers would be wise to think about what they can do to secure their services, and commitment, for the long term, ensuring their investment in their migrant workforce is maximised. It is always helpful to begin this process with the benefit of professional advice and assistance on visa matters from an experienced Licenced Immigration Adviser or Immigration Lawyer.

Article provided by Richard Howard, Managing Director of Pathways to New Zealand Ltd – New Zealand’s second largest immigration consultancy business with 13 Licenced Immigration Advisers based in its Hamilton and Wellington Offices.

During June the Government opened up consultation on proposed changes to post-study work visa categories. Immigration Minister Iain Lees-Galloway intends that the proposed changes will help eliminate or reduce migrant exploitation and will encourage international students to study higher quality courses and courses which will lead to employment roles in the areas which New Zealand needs.

If introduced, the proposed changes would see the removal of the post-study employer-assisted 2 year work visa and the introduction of a three-year post-study open work visa for degree level 7 and higher qualifications. All students studying below Level 7 would only be entitled to a one-year post-study open work visa and only if their qualification required at least 2 years of study. In addition, visa eligibility for accompanying families of students would be tightened with only partners and children of students studying level 8 or 9 qualifications in an area of long term skill shortage being entitled to partner work, and dependent child student, visas.

The Government is right to focus on student worker and migrant exploitation as such exploitation is now endemic in New Zealand – however the proposed changes, in our view, would do little to remedy this situation. The pathway many international students take to study in New Zealand is fraught with exploitation, largely due to dishonest Education Agents not acting in the best interests of their student clients and misleading students as to their course and future visa entitlements. Agents often enrol students in low level and inappropriate courses, and at particular institutions, based on the commissions they can earn and with little regard to the student’s best interests and long term future. This is where many problems begin and the Government must now look closely at requiring all student visa advisers to be licensed and regulated by the Immigration Advisers Authority.

Once a student has completed their course and gained their post-study work visa, they currently face the challenge of obtaining employment relevant to their qualification within a 12 month period. For many such visa holders, securing relevant employment can also create a pathway to residency. This pressure to find suitable employment to extend their visa can often lead to a person being forced to take up an employment role on terms dictated by the employer and which have little regard to New Zealand employment law. Currently, the only practical option for a migrant worker in an exploitative situation like this is to find new employment and then to change their visa to this new employment. However, the reality is that very often in these situations the visa holder is unable to find new employment and has no choice but to remain being exploited in their existing role. Additionally, migrants are often fearful of reporting unscrupulous employers to Immigration New Zealand as this will directly impact their work situation and can lead to losing their job and work visa and place them in a very difficult situation having no job and no visa to allow work. These people and their families have invested many tens of thousands of dollars in their education in New Zealand and need to work to repay this debt.

If the Government is serious about stamping out migrant exploitation it must introduce more effective processes to identify exploitative employers and take proactive action against these employers. A constructive first step would be to introduce a suitable interim “visa solution” for visa holders who were being exploited so they can be more willing to speak out and to provide key employer information without having the worry of their own visa situation to protect.

While the proposal for a 3 year open work visa after graduation will take initial pressure off the requirement to obtain employment for visa purposes the potential effect will be that many of these visa holders will resort to self-employment (eg; Uber drivers) and undertaking cash work as there is no immediate compunction on them to enter into lawful, documented, employment. In fact there is a real prospect that their visa situation will directly lead to greater exploitation due to the lack of oversight of what they will be doing and what any employer is requiring of them.

The pressure will go on again when it comes to the end of the open work visa term when the visa holder does require a particular employment role to support a new work visa or a residence application. Due to the extended passing of time to get to this juncture the likelihood is that these people will be subjected to, and open to, a much greater level of potential exploitation that what otherwise would be the case.

In addition the 3 year work visa will provide the time and opportunity for visa holders to pursue other avenues to stay in New Zealand including establishing their own businesses and forming partnership relationships, and to focus on these avenues to obtain residence. We do not believe these outcomes provide the best benefit to New Zealand and do not make use of their New Zealand qualifications.

Our view is that is that consideration should be given to the introduction of a work-to-residence pathway for student graduates. This could work similar to the existing WTR schemes whereby an applicant must work in a certain job for 2 years and can then directly apply for residence. This scheme would operate like an internship and would encourage both graduate students and employers to invest in a longer term employment relationship – and would see graduate students appropriately motivated to progress their careers rather than sitting around for 3 years until they have to do something.

It would be naive to believe that many international students coming to study here are not significantly motivated by the prospect of working in New Zealand and gaining residence in the future. Of the two main student markets, India and China, the vast majority choose New Zealand to study because of the prospect to pathway to residence. This motivation of immigration policy settings cannot be downplayed or ignored as without it the international education industry, New Zealand’s 5th biggest export earner,  will stall and likely retreat.

The reality of this situation must be accepted, and students should be encouraged by policy settings to study in the courses that will lead to employment in roles which will benefit New Zealand and which will deliver the residence outcome to the student. Any changes to the existing post-study visas should therefore seek to protect students from exploitation, whilst enabling and pro-actively encouraging them to seek career focused employment roles which are in demand in New Zealand and which can advance their future residence eligibility. This begins with the student choosing better-quality and focused courses which can then lead to better quality student outcomes and employment prospects.

There is nothing at all wrong with the existence of a study-to-residence pathway. Such a pathway enables relatively young, New Zealand qualified people who have good English and local friends and connections, and who have already assimilated to New Zealand, to build upon this very sound foundation and to become the New Zealanders of the future. We just need the immigration settings that will first attract the students we want, and which will protect them from exploitation, and then encourage them to stay and to provide the skills New Zealand needs so we can realise this future together. Our view is that the proposed policy changes correctly identify the issues but are very much formulated in reaction to the current situation and do not recognise the consequences of what the changes will promulgate. Our preference is for more forward thinking and constructive policies that will deliver the preferred long term outcomes for the benefit of New Zealand, and of the student.