Essential Skills Work Visas under Covid-19

Covid-19, no doubt, has significantly impacted many sectors of the New Zealand economy because of the border closures and travel restrictions.

What does this mean for the New Zealand employer, and how will Immigration New Zealand (“INZ”) approach Essential Work Visa applications, in particular, the labour market test.

 

Visa Processing of applications under Alert level 2

Under Alert Level 4, the processing of visa applications has been limited and focused on implementing the Epidemic Management Notice. That is focusing on requests from individuals who have a critical purpose for coming to New Zealand, and some temporary visa categories for applicants who are in New Zealand. 

Under Alert 2, INZ is now in a position to begin processing a wider range of visa applications as more staff return to the INZ offices onshore. As of 14 May 2020, INZ has resumed the processing of residence class visa applications, and temporary class visa applications, including Essential Skills Work Visa for applicants currently in New Zealand. However, 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. The processing of visa applications is expected to change as the border closures and travel restrictions change.

 

Availability of New Zealanders / Labour Market Test

Many employers are already aware that in order to employ a migrant worker, they must first take all reasonable steps to hire a New Zealander for the role. INZ must be satisfied that there are no New Zealanders available for the position offered. The employer is required to supply the following information:

  • The steps they followed to recruit New Zealand workers;
  • Reasons why the New Zealanders who applied for the role are not suitable; and
  • Evidence of advertising the position via Trade Me, Seek etc., such as reports of views and submissions to confirm the number and types of applicants who applied for the job. 

Covid-19 has affected New Zealand’s job markets dramatically, both by reducing the volume of business various industries can do, and by pushing many local workers out of their jobs. Therefore, INZ is expected to take this into account when assessing work visa applications under the Essential Skills Category. However, under the Essential Skills instructions, WK1.1 Objective, INZ must also consider a range of factors, including the need to help New Zealand businesses provide their services while protecting the employment opportunities for New Zealanders. 

Advertising the role

Employers can advertise and recruit staff under any Covid-19 Alert Level. Of course, higher alert levels resulted in different methods of recruitment such as remote interviews, restrictions on movement between regions, on-site training etc. The restrictions obviously applied to both New Zealanders and overseas applicants. Employers would have faced delays and many challenges in the recruitment process to facilitate contactless interviews under the Alert level applicable at the time.  

INZ will ask employers to provide evidence that, at the time the applicant’s work visa application is assessed, the availability of New Zealanders to undertake the job remains unchanged. They will probably be required to confirm that the offer of employment is still valid, and employment is sustainable – that is, can the company afford to pay wages. 

Employers will not need to re-advertise the role. However, they may need to provide evidence of ongoing recruitment. 

Skills Match Report

Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 roles (lower- skilled occupations) are required to provide a Skills Match Report and advice from Work and Income NZ (WINZ). This is necessary before they offer the role to the applicant. The employer needs to satisfy INZ that no New Zealanders are available to be trained to do the work. 

In the past, the labour market was unlikely to change from the time the employer provides evidence of genuine attempts to recruit New Zealanders and the time INZ assess the application. 

However, due to the Covid-19 outbreak, which resulted in travel restrictions and impacted business operations in NZ, unemployment rates have increased significantly in the space of a few weeks. In the months of April and May 2020, 38,425 people received jobseeker support. You can view this data on the Ministry of Social Development website for Income Support and Wage Subsidy Weekly Update. The 1 May 2020 weekly update represents 6.1 per cent of the working-age population receiving jobseeker benefit.

This means INZ will assess the Essential Skills Work Visa applications by balancing the objective of the Essential Skills Work Visa category with other factors:

  • helping New Zealand firms maintain capacity and supporting the provision of services meeting important social needs; while
  • not displacing New Zealanders from employment opportunities or hindering improvements to wages or working conditions.

Balancing exercise at the time of assessment

Immigration officers can request further information from the employer when assessing the Essential Skills Work Visa application. The reason is to show that despite earlier attempts to recruit New Zealanders, there are still no New Zealanders available for the position offered at the time of assessment.

Given the high unemployment rate, this will be a challenging exercise for the New Zealand employer. It will also be a challenge to demonstrate this with evidence. It would depend on the role offered, regions of employment and the circumstances of the employer.

Here are a few tips for the employer on the type of evidence an Immigration officer may request:

  • Ongoing recruitment of New Zealanders for a similar role may show evidence that available New Zealanders would have been hired by that employer.

 

  • Another employer in the same industry may be able to provide a letter confirming their own difficulties in finding suitable staff.

 

  • In regions out of Auckland, employers can demonstrate that there is still a shortage of suitable New Zealanders for the role. Employers can check the regional skills shortage list via the INZ website available on this link.

 

INZ is not expecting employers to re-advertise the position. Still, employers can choose to do so if the immigration officer is not satisfied that there are no New Zealanders available. 

 

Genuine and sustainable employment

We have seen in the past, INZ raising various issues that the employment is not genuine and sustainable as required under the Essential Skills instructions. If the employer received funding from the Covid-19 Wage Subsidy Scheme, this should not on its own indicate that employment offered is not genuine or not sustainable. The COVID -19 Wage Subsidy provides support to employers who are unable to operate their business due to restrictions required to manage public health risks; and not due to concerns about the employer’s sustainability. 

The reality is that INZ will be treating genuine attempts to recruit New Zealanders more critically than before. Employers will face questions and requests from a case officer confirming the offer of employment they made to the applicant and the genuine attempts to recruit New Zealanders.

If you are applying for a job-based visa, or you are the New Zealand employer, and you feel like are you placed between a rock and a hard place and need professional help to address such concerns or requests from INZ,  please contact us at Laurent Law. 

 

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Character Waivers for New Zealand

Everyone applying for a NZ visa must prove that they are of good character. Simon Laurent talks about some of the pitfalls, and what you can do to get out of them.

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New Zealand Investor Residence

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Covid-19 – Upcoming Changes to Immigration Law

As we write, new law relating to Immigration is being discussed in Parliament. Once it has passed through Parliament and has received the Royal Assent, the Immigration (Covid-19 Response) Amendment Bill will make major changes to New Zealand Immigration Law. Details regarding the new law can be found on the New Zealand Parliament website here.

The Way Things are Now

The current law has limited ability to deal with groups of individuals, which creates difficulty in emergency situations such the Covid-19 epidemic where a large number of visa holders have been affected.

The Immigration Act contains some emergency provisions which apply where the Prime Minister has issued an Epidemic Management Notice, for example the extension of valid visas for 3 months after the day on which the Notice expires. However, some migrants may have lost jobs and want to start a new one, some have had their hours reduced and some migrants may have had their pay affected. The current law does not deal well with such situations. It was drafted in 2006 when New Zealand had much fewer Temporary migrants, and the Government believes it is not fit for purpose right now.

As at 27 April 2020, there were approximately 350,000 temporary visa holders in New Zealand.

• 200,400 have work visas whose visa employment conditions may need to be varied in response to Covid-19;

• 74,800 are student visa holders whose visa conditions may need to be relaxed, to enable them to change their course or work extra hours until education providers are able to reopen;

• 56,500 are on visitor visas, who may need to have the expiry date extended, if commercial flights out of New Zealand continue to be unavailable;

What’s in the Amendment Bill?

The new law creates 8 powers, most of which are exercised by the Minister of Immigration by way of Special Direction. They enable decisions to be made about whole classes of people, and may depend on things like their visas status, their nationality, or what kind of travel document they are required to hold. The powers are:

  • to vary or cancel conditions for resident class visa holders;
  • to impose, vary, or cancel conditions for temporary entry class visa holders;
  • to waive any regulatory requirements for certain visa applications;
  • to grant visas in the absence of an application;
  • to extend the expiry dates of visas;
  • to waive the requirement to obtain a transit visa;
  • to revoke the entry permission of a person who has been deemed by regulations to hold a visa and to have been granted entry permission;
  • to suspend the ability of some people to make applications for visas or submit expressions of interest in applying for visas.

It is expected that the Amendment will be enacted by 15 May 2020, which is very quick. The speed at which the new law is being made could raise concern. It is a critical feature of a functioning democracy that the public and Parliament are able to scrutinise law. We are yet to know the precise manner in which the powers may be exercised. Certainly, the new law gives significant power to the Minister of Immigration.

Having said this, the new powers do not allow the Minister to do absolutely anything unchecked. They are time limited and will automatically come to an end after 12 months. The powers can only be exercised to contain or mitigate Covid-19 and its effects.

Furthermore, when a power is to be exercised, this must first be put before Parliament who may “disallow” it. If Parliament allows it to go ahead, it must be published on the website of the Ministry of Business Innovation and Employmentas well as in a Government document called the Gazette. The thinking is that this will allow for sufficient scrutiny of the powers when exercised.

Some say that these measures are not enough, and that there are inadequate safeguards on the exercise of the new powers. At the time of writing, the new law is being discussed at Select Committee. Some submissions to the Committee raise the concern that, without proper checks and balances, a situation of “unbridled power” could be created. “Unbridled power” is the title of a book by former Prime Minister Geoffrey Palmer (1989-1990) and refers to a situation where a member of the Executive branch of Government, for example a Cabinet Minister, is effectively able to make decisions of their choosing, unchecked by opposition parties in Parliament. Unchecked power resting in a Cabinet Minister may represent a threat to democracy.

Damage Control

However it is clear at the moment that Immigration New Zealand is facing a significant difficulty in dealing with a large queue of applications, with delays in the processing of application being made worse by INZ staff being unable to work remotely from home during the lockdown; see for example here. The Covid-19 situation is war-time like and unprecedented, which provides a context for the new powers. In such crisis situations, Government may well need powers that enable it to act quickly and swiftly. In any lesser context, the powers may not be appropriate.

If the Minister of Immigration does not receive the new powers, once the lockdown ends INZ is going to find itself with a very significant visa application headache. It is suggested that, at a time of uncertainty for migrants, the swift exercise of relevant powers by the Minister of Immigration may be necessary to resolve the situation. In addition to the safeguards that do exist in the new law, the Minister of Immigration will be accountable to Parliament in the usual way during Question Time and also by the media.

We will try to keep people up to date on how the Amendment Bill will play out. If you have not done so already, subscribe to this blog or get on our newsletter mailing list.

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Residence from Work (Accredited Employer) Visas – What has changed?

On 7 October 2019, the Government announced changes to the Talent (Accredited Employer) Work Visas (“Talent Work Visa”). These have raised questions about how this will impact applicants’ eligibility under the Residence from Work Category:

  • The annual salary has increased from NZ$55,000 to $79,560. The new salary applies to all Talent Work Visa applications we receive from 7 October, regardless of when the employer became accredited;
  • Removing the option to get a Permanent Resident Visa if you apply for a Talent (Accredited Employer) Resident Visa; and
  • Limiting the amount of time employers can be accredited to 24 months.

Already hold a Talent Work Visa?

If you already have a Talent Work Visa or you applied before 7 October 2019, you are not affected by these changes and the conditions and length of your visa will not change.

If you later apply for a Talent (Accredited Employer) Resident Visa you will only need a salary of $55,000 or more.

If your salary is $90,000 or more when you apply for Residence under Talent policy, you may be eligible for a Permanent Resident Visa.  While a normal Resident Visa has travel conditions which can limit your ability to be out of NZ for the first few years, the PRV has no such conditions and may be of significant benefit to some people, depending on their career or life ambitions.

Eligibility under the Talent (Accredited Employer) Resident Visa

The objective of this part of the Residence from Work Category is to enable the grant of residence class visas to people whose talents are needed by New Zealand employers.  To apply for this visa, you must:

  1. hold a Talent Work Visa and have worked for an accredited employer for a period of at least 24 months; or
  2. during the currency of that visa, have been employed in New Zealand throughout a period of 24 months:
    1. by any accredited employer; or
    2. by an employer who is not an accredited employer, provided that the conditions of your visa were varied to let you work for them, or
    3. by any accredited employer, whose accreditation is rescinded or not renewed during the currency of that visa, provided the employment continued to meet the following requirements.
  3. the base salary offered must be no less than the base salary that was required at the time the initial work visa application was made – for example $55,000 per year;
  4. the offer of employment must be full time and genuine;
  5. they have employment in New Zealand with a minimum base salary of NZ$55,000 per annum if the associated work to residence visa application (WR1) was made before 7 October 2019; or NZ$79,560 per annum if the associated work to residence visa application (WR1) was made on or after 7 October 2019;

Currency of Talent Work Visas

A Talent Work Visa is issued for 30 months. After being employed with an accredited employer for 24 months, you can apply for a Talent (Accredited Employer) Resident Visa.

If the Resident Visa application is not completed by the time the Work Visa expires, you can get a further Work Visa if you are still being paid the minimum base salary that was in place when you applied for the current visa, and you have an offer of employment for a period of at least another 12 months.

Talent Work Visa – A route to Residence under the Skilled Migrant Category (SMC)

Obtaining a Talent Work Visa could also be a stepping stone to applying for Residence under SMC.  The advantage of securing a Talent Work Visa rather than a Work Visa under the Essential Skills Category is avoiding the need to meet the labour market test dramas. Because, under the Essential Skills Work Visa Category, employers are required to demonstrate there are no New Zealand citizens or residents that can fill the role. This has proven to be a struggle for many employers.

Also, if you meet the points under SMC, you will not need to wait for two years to apply for Residence, which is normally what you need to do on a Talent Work Visa (see above). You can use the Talent Work Visa as a short-cut to Skilled Migrant Residence.

The requirements are not straight forward. Not sure if you are impacted by these changes or need help with visas under the Talent (Accredited Employer), contact Laurent Law for assistance.

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Can I Still Come to New Zealand?

For most overseas people, the answer is “No”. The border is closed to contain the spread of Covid-19. But there are some exceptions, and you might qualify. In particular, I will talk about requests to come in on humanitarian grounds, and entry of “essential workers”.

The default position is that no-one can come back in, except New Zealand Citizens and Residents. Family members of New Zealanders have to be accompanied by the New Zealand partner or parent, or the NZ child whom they are taking care of. Even Australians, who can normally fly in as Residents, first have to ask permission or risk being stopped from boarding their flight. Immigration New Zealand has set out the rules in general terms.

Humanitarian Cases

Anyone claiming that they need to come in for humanitarian reasons must show that they have a “critical purpose” for doing so. The wording in the new Immigration Instructions for humanitarian entry makes it clear that this is a tough test to meet. The words I have heard used by Immigration officials send the same message.

Humanitarian reasons are “exceptional circumstances of a humanitarian nature that make it strongly desirable for the applicant to travel and enter New Zealand.” This wording is similar to that used for deportation appeals, where we have had some experience and success over many years.

Whether you pass the test depends on:

  • the strength of your links to NZ, usually through family, or by how long you have lived here in the past, and how much time you have been away; and
  • the consequences of not allowing you in – what other options you have, and the impact on you or on someone else if you can’t come to NZ.

Our experience with making such requests is that it is critical to tell a strong story, which is easy to understand right away. We look for the “hook line” which makes your case stand out from others’. There may be features in your case which you take for granted, but which can make all the difference to someone who has to make the hard call whether to let you visit or not.

Essential Workers

Again, the question is whether someone coming in can show a “critical purpose” for entering New Zealand. The focus here is on how your skills can aid the health and wellbeing of this country. There are 2 main groups of interest:

Essential Health Workers: 2-year Work Visas are available for those who:

  • have a job offer with one of the listed agencies – including hospitals, medical centres and rest homes;
  • will work in a listed occupation – doctors, nurses, theatre technicians and other specialists. This includes aged care workers, which may reflect concerns about the heightened risks to the elderly posed by Covid-19; and
  • have the support of a Government agency involved in the response to Covid-19.

These Work Visas allow people to work for any employer in any occupation. It reflects the reality that medical staff should be able to move to where they are needed as the pandemic situation develops.

It also appears that people with desirable medical skills and qualifications, but without a job offer, can get a Visitor Visa to enter the county and take up work anywhere they choose, although at first they would only get a 6-month Visitor Visa with work conditions attached.

Other Essential Workers: These are people who can deliver services and maintain infrastructure which are critical for the country to function during its response to the pandemic.

The list of those critical occupations has not yet been published. Along with others on the NZAMI Board, I have helped with suggestions to senior MBIE officials which they can feed through to the All of Government Working Group. In the meantime, conditions for visa holders working in supermarkets and rest homes have been relaxed to enable them to contribute more fully to what are now vital areas of work.

The decisionmakers face a dilemma here. There have historically been staff shortages in many industries, either because New Zealanders don’t have the skill-set, or because they don’t want to do the work – think caregivers at rest homes, or fruit pickers. We need people to look after the elderly; we need someone to pick the grapes right now. At the same time, many are talking about a sudden recession, and there are dark warnings of a massive increase in unemployment. It would not be a good look to bring in more people from overseas when so many locals might be looking for jobs very soon.

Other News

We have just heard that the draw of Expressions of Interest for the new Parent Category has been deferred. It was meant to happen in May, and has been postponed – but not cancelled entirely.

And Working Holiday Visas have been put on hold. This is hardly surprising. Processing of almost all visa applications for offshore applicants has stopped. Priority will be given to Partner applications, and there will of course be work on the “essential worker” exceptions mentioned above.

The situation is evolving literally every day. What we publish as news today, will be out of date by the end of the week. Subscribe to our blog to remain informed.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Office Update, Practice of Law | 1 Comment

Immigration has Caught a Virus Too

And it’s a virus of confusion. This is nobody’s fault. Two weeks ago – if you can remember back that far – the way that business got done was pretty familiar. Suddenly we are in a different world of isolation and restriction. Even though it is an agency of the State, Immigration New Zealand has been hit as hard as anyone.

The Level 4 lockdown and the Epidemic Management regulations mentioned in our last blog have raised more questions than they might have answered. From what I have seen in communications with INZ, the policy-makers don’t yet have answers to those questions.

For example, if someone on an employer-sponsored Work Visa has to choose to work less than 30 hours a week, or be made redundant, what happens to their application for Skilled Migrant Residence? The way things are now, their application would be declined because they are not in full-time work (which must be at least 30 hours per week). Do they have to take the chance of filing an appeal and arguing that they face special circumstances? On one view, they certainly do. Are the circumstances all that special, when tens of thousands of other people face the same issue?

By accepting lower hours, they might have breached the conditions of their Work Visa, which was granted on the basis that they would be in full-time work. This makes them liable for deportation. Is INZ going to act on that, or will they just look the other way because they don’t have the time or resources to chase everyone down? Might they decide to deport people in order to remove migrants from the picture, so that local workers get a chance to take the job? This is a live question, with talk now circulating about unemployment going into double digits. Or, perhaps, will the rules be relaxed for a period, in order to recognise that we actually need to keep migrants in jobs because they have skills that Kiwis do not?

That is just one aspect of the whole, sprawling mess. I have been involved in formulating questions which need answers, from the industry. Immigration has invited this. Perhaps they recognise that they are not equal to tackling this alone. Bear in mind that most visa staff and managers are unable to function at all because they are not set up for remote working, or they are having to make do at home and get onto conference calls and Zoom meetings.

Then there are unforeseen disconnects in the system. As we mentioned, everyone whose temporary visa was to expire between 2 April and 9 July gets an extension to 25 September because of the effect of the Epidemic Management Notice. Normally, people get an automated warning 45 days in advance of the end of their visa, to tell them to reapply or leave New Zealand. Well, they are still getting those emails. Someone forgot to switch them off, or recode them. This is probably causing quite a bit of stress for people who don’t know which message to trust.

Again, really it’s nobody’s fault. There are just so many loose ends to try to pick up right now that everyone is scrambling.

We don’t have all the answers either. Like our colleagues in the industry, we haven’t been told a great deal. However, we may be able to shed some light on your particular case if we can. We’re probably about as well placed as anyone outside the Policy and Service Design meeting room in Wellington, to suggest how things might go. Contact us if you have some important decisions to make, and we’ll see what we can do.

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