Post-Study Work Visas – Change is A-Coming

 

Every week or so, someone comes to us about their application for Work Visa based on a job which is meant to be related to their NZ qualification.  They have spent several years, and tens of thousands of dollars, to get to this point.  Immigration says their job isn’t “relevant” to their Diploma in Business, or Management, or Hospitality.  Sadly, visa officers now apply the policy so strictly that many of them are declined.  Graduates end up here unlawfully and must go home, having wasted some of the best years of their lives here.

Scrap the Employer Assisted Visa

That may all be about to change.  Last week the Government released a consultation document which sets out ideas for dramatic changes to the Post-Study visa system.  The most striking is that the Employer Assisted Work Visa will cease to exist.  Instead, graduates of a Bachelor’s degree and above can get a 3-year open Work Visa (any employer).  Those who pass a lower tertiary qualification get a 1-year visa.

Now, I’m no apologist for Immigration New Zealand, but I actually think this is a good idea.  The Employer Assisted “relevance test” being applied to job offers has simply become unworkable.  A number of our colleagues have given seminars on the lengths to which visa staff have gone to find ways to decline these applications.  One problem is showing how the qualification is related to the job.  While the policy only requires the major subject area and level of the course to relate to the employment, INZ staff are picking over the individual papers to point out how many of them can’t be used in that specific role.  Another issue is asking whether that qualification was “a key factor” in the employer deciding to take someone on.  It is seldom sufficient nowadays for the manager to simply write a letter saying that it was.  Immigration officers strive to draw inferences from the evidence to conclude that the qualification could not have been important to hiring the person.

So it will probably be a relief to people on both sides of the desk if this shambles is consigned to history.  Another new proposal is to limit anybody doing a sub-degree course to a 1-year Work Visa.  They will no longer be able to get the 2-year Employer Assisted visa.  The Minister of Immigration has made clear in several recent releases and speeches that the aim here is to put the squeeze onto international students to aim for higher-level qualifications.  So long as the Government takes an active responsibility to publicise this new setting, if it comes in, then it may achieve that end.

Exploitation by Employers

Another objective is to combat the exploitation of migrants.  The consultation document mostly focuses on graduates being compelled to accept low-paying jobs, and even “paying” for their job under the table, owing to the imperative to get the Employer Assisted visa to remain in New Zealand.  Presently, after completing suitable study, migrants only have 1 year to find the “relevant” job to support the Employer Assisted visa.  Many find that this time is too short.

By making the 3-year Work Visa open – that is, no need to specify who has offered the job –  could well take the pressure off.  It would also give people more flexibility about choosing who to work for.  At the moment, if someone gets into a job which is not right for them, does not pay enough, or has no room for advancement, then they have to apply for a Variation of Conditions to do so – and then they run right back into the arms of the troubles I described above.

However, the package of proposals might simply shift the problem.  The ones most likely to be exploited will become those who still enrol for a sub-degree course.  They only have a year from graduation to get into a job high enough up the ladder for them to apply for a market-tested Essential Skills Work Visa, or to apply for Skilled Migrant Residence outright.  That is an even bigger ask than what the current arrangement requires.

The problem is that, while the Government may hope that people somehow get the message that doing these sub-degree courses is probably a road to nowhere, that is not the story that will be sold in Kashmir or Fujian.  Which brings us to the other side of the corrupt student migrant story.

“Selling the Dream”

The exploitation which is arguably more pervasive occurs at the start, when unscrupulous offshore education recruiters sell courses as a sure-fire way to Residence, aided and abetted by some New Zealand colleges of dubious repute.  The consultation paper does refer to it, but interestingly it passes over it quickly in favour of concerns about breaches of minimum employment rights.

I’m not sure if these new gear shifts will end this big-ticket abuse in the export education industry.  After all, if an education agent can sell the idea of getting a 3-year post-study visa to someone who signs up to a 3-year degree, then they will get a lot of takers.  What is means is that the stakes will only get higher.

Already, migrants from India in particular are putting their families into debt to pay for several years’ worth of tuition and accommodation.  Some of the low-hanging fruit will no longer be worth selling, like one-year Diplomas in Business.  But the chance to have 3 years to look for jobs which could give a chance at Residence will be irresistible to many who are desperate to get away from the ferociously competitive labour market back home.  The exploited may be less numerous in future, but their plight may be more extreme.

If the Government is really serious about student exploitation, then it will make it illegal for New Zealand colleges to pay massive commissions to attract the education “recruiters”.  As I indicated in a blog from just before the Election last year, there is a trade-off here between the integrity of New Zealand’s reputation and the billions of dollars in export education revenue.  The question is whether the Labour Government has the stomach to take on this issue head-on for the first time.

 

Advertisements
Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | 5 Comments

Recent reports indicate migrating to New Zealand may have become more difficult, but has it for those who are needed most?

An article titled, “Tough rules see migrants give up and go home”, was recently published in the New Zealand Herald. It says that annual migration is down 4800, from a high point a year ago. In the year to April 2018, more than 30,000 non-New Zealand citizens who had been in New Zealand on a permanent or long-term basis left the country, an increase of 23% compared to a year ago. It appears that most of these migrants had been student and work visa holders, who have been unable to get jobs and therefore Residence under the Skilled Migrant category.

Changes to the Skilled Migrant category made in August 2017 by the previous National Government have introduced a minimum rate of remuneration that must be paid in order for an applicant to claim points for skilled employment. The way points are awarded also changed, which has made it more difficult to claim the required 160 points.

The most striking example is the stricter rules around claiming points for work experience. At an annual Immigration Law Conference in Auckland last week, one presenter echoed the view that we have formed in our daily work with potential clients – don’t try to claim points for past work experience unless there is absolutely no alternative.

recently wrote about how these changes to the Skilled Migrant category have made it more difficult for applicants with qualifications, work experience and skilled employment in an area of long term skill shortage, to get Residence. This has seen a fall in the numbers of skilled workers in areas of labour shortage, such as IT and construction, being approved Residence.

I identified the following changes from INZ statistics in the numbers of migrants being approved Residence under the Skilled Migrant category, from a) 1 April 2015 – 31 March 2016, b) 1 April 2016 – 31 March 2017, and c) 1 April 2017 – 31 March 2018.

  • Civil Engineer. a) 116, b) 122, c) 61.
  • ICT Business Analyst. a) 122, b) 125, c) 63.
  • ICT Systems Test Engineer. a) 68, b) 53, c) 11.
  • Quantity Surveyor. a) 101, b) 89, c) 35.
  • Software Engineer. a) 337, b) 288, c) 142.
  • Overall total numbers approved Residence under the Skilled Migrant category, a) 13,975, b) 13,160, c) 6,376.

These revised policy settings and more restrictive approach need to be explained, if the Government really does want to attract highly skilled migrants in areas such as IT and construction, as it says it does.

The recent Herald article identifies the broader point that, overall, it does appear to be the case that revised policy settings are making it more difficult for migrants to secure Residence.

Occupations which the new Labour Government prefers New Zealanders to do instead of foreigners – such as in hospitality and retail – have experienced a reduction in migrant numbers too. INZ statistics showing the numbers of migrants being approved Residence during the time periods above, identify the following.

  • Retail Manager. a) 682, b) 511, c) 307.
  • Café/Restaurant Manager. a) 600, b) 449, c) 288.

The conclusion might be that, if highly skilled migrants are still desired while “jobs that Kiwis can do” are to be protected, policy settings need to be better targeted. This could be achieved by, for example, increasing the number of points available for work experience or skilled employment in an area of long term skill shortage.

The need for workers in areas such as construction relates to the new Labour Government’s publicised KiwiBuild programme to build more housing, especially in Auckland.  The Minister of Immigration has responded to pressure from the industry by hinting at proposals in the pipeline to bring more tradies in to staff KiwiBuild, although he stopped short of agreeing to legalise the status of a large number of overstayers discovered on several work sites during several Labour Inspectorate operations.

One way to get more migrants into construction jobs would be to specify a wider range of construction related occupations on the Long Term Skill Shortage List (“LTSSL”). Currently the only construction jobs listed on the LTSSL are Construction Project Manager, Project Builder, Quantity Surveyor and Surveyor. Carpenters, Painters, Glaziers and Plumbers don’t show up there.  There is an immediate need for thousands of people in these trades, and they should be added to the List.

With current policy settings, New Zealand is missing out on valuable migrants. The Government cannot afford to be squeamish about letting people in to do skilled work here.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Refugees | 1 Comment

The Art of Submitting A Successful Visa Application

Most of us have an appreciation for one or the other type of art. We may not all have the same taste or preference or even opinion on what we consider to be art. Whenever I see Roger Federer play tennis I am always reminded of how he has transformed the game of tennis into an art form. The grace with which he moves around the court and slides in behind a ball is music in motion. The way he proceeds to gracefully and with deceptive power deliver a blow to his opponent across the net is mesmerising to watch. What he does is pure art and that is a fact. I am reminded of the movements of a cheetah across an African plain. Once again it is pure art in motion.

Now compare this to the way that a hog moves, eats and falls flat on its belly in a pool of mud. Not exactly beautiful to watch is it? Don’t get me wrong, hogs have a purpose but their purpose probably don’t involve the fine arts or the appreciation of something that is stimulating to the senses and aimed at inspiring us to greater heights, no matter who we are or what we do.

Submitting a visa application is more or less the same. If the author is a skilled immigration expert with sound knowledge of policies, procedure and an inclination towards great writing and persuasiveness, the end product will be a brilliantly compiled  piece of art that will transform something that is repetitive and boring by nature into a Roger Federer art and music in motion event.

Don’t get caught out by the impression that a visa application consists of a bunch of documents stuck together and submitted like the form you complete at your favourite fast food outlet so you can enter the darn competition, get the attendant off you back and your bag of food in your hand. This is something totally different.

Any skilled immigration lawyer or adviser will tell you that a really good application is a meticulous process of getting the necessary facts and documents together. It’s about presenting that specific client’s life story in such a way that it highlights their most inspiring moments and tells a story about a person who wants to contribute to this society with passion and purpose. Every single application is a unique peek into the world that the client holds dear, and explains their life journey with compassion and vehemence.

So, what if the client doesn’t have the perfect story to tell? This is where an immigration specialist will move up a gear. It’s all about transparency and once again laying all the facts on the table. This includes the facts that the client won’t see as important or relevant to the application. Understanding the consequences of answering a seemingly simple question and being prepared to explain and justify, is of utmost importance. Digging deeper to unearth that diamond in the dust is what it is all about. The secret is to anticipate what may come as a result of the application that will be submitted and to plan and be ready for every eventuality. The ability to reason with conviction and persuasiveness is a skill that comes with time and experience. It is not to be doubted that a very sound knowledge of the cans and can’ts of the industry is paramount to the success of the application. Having dealt with similar types of circumstances before is the best preparation and not something that a client is geared for. Good immigration lawyers and advisers are. Their knowledge and abilities transform any application into a graceful, persuasive and mesmerising piece of art that will convince the most stubborn critic that it is art. It is beautiful to read and easy to agree with.

Now compare this to an application that was hastily slapped together by someone who knows nothing or very little about policy and the cans and can’ts. Perhaps this someone is emotionally charged because of the importance of the application. Likely this person is not thinking clearly or able to deal with comebacks or rejection. Comparing the cheetah to the hog clarifies the matter at hand, doesn’t it?

We have been in the industry since 1996 and have developed a bit of a reputation as a go-to law firm for immigration work. We have seen a lot and have lived through a lot of change. We have created many exquisite pieces of art and will continue to do so for a long time to come.

You can visit our website at www.laurentlaw.co.nz or contact us at +64-9-630-0411 to make an appointment.

 

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Refugees | Leave a comment

ANZSCO and Skill Levels of Jobs

When surfing the net on NZ skilled job based visas, such as Essential Skills Work Visa or Skilled Migrant Residence Visa, you may have heard or read about the term “ANZSCO” and/or the phrase “Skill Level”. Let me tell you more about them in this blog.

ANZSCO and Skill Level

The term ANZSCO stands for Australian and New Zealand Standard Classification of Occupations. It a skill-based classification used by both New Zealand and Australia to classify all occupations in the labour markets of both countries.[1]

The ANZSCO is structured in five hierarchical levels i.e. major group, sub-major group, minor group, unit group and occupation. The most detailed level of the classification is called occupation which is denoted by 6 digits, e.g. 142111 Retail Manager. A set of occupations are aggregated together to form a unit group, e.g. 1421 Retail Managers.

Each unit group has a description of the nature of the occupations, a summary of the main activities of occupations that form part of that unit group and a detailed list of duties that would generally apply to all or most of the occupations in that unit group.

All occupations (and unit groups) listed in the ANZSCO are assigned skill levels ranging from Level 1 (highly skilled) to Level 5 (low skilled). Table A shows examples of occupation and industry for each skill level:

Table A:

Skill Level Occupation and Industry
1 – Highly Skilled Managers and professional roles in these industries: education and training (teachers); professional and technical services; health and social assistance and agriculture (farmers and farm managers)
2 Managers in the accommodation and retail industries, support workers in the health and social assistance industry
3 – Skilled Technicians and trade workers in the construction, manufacturing and other service industries
4 Carers and receptionists in the health industry; road and rail drivers in the transport industry; and clerks, operators, drivers, store people, process workers in the manufacturing industry
5 – Low skilled Sales workers in the retail industry, factory process workers in the manufacturing industry; accommodation, farm, forestry, and garden workers in agriculture; and cleaners and laundry workers in administration

Reference: Statistics New Zealand [2]

For each skill level, ANZSCO outlines the level of relevant formal qualification, the amount of relevant work experience and/or on-the-job training that may be required for an individual to competently carry out the tasks and duties of an occupation. For most occupations, work experience may substitute the qualification listed. However, in some instances, work experience and/or on-the job training may be required in addition to the required qualification. Registration or licensing may also be required for certain occupations.

Table B shows the different qualification and/or work experience required for each skill level:

Table B:

Skill Level Qualification Work Experience
1 – Highly Skilled Bachelor or above 5 years
2 Diploma 3 years
3 – Skilled NZ Register Level 4 3 years
4 NZ Register Level 2 or 3 1 year
5 – Low skilled NZ Register Level 1 or compulsory secondary education Short period of on-the-job training

Reference: Australian Bureau of Statistics[3]

When determining whether a particular job matches an ANZSCO occupation, the applicant should compare their job against the ANZSCO description of an occupation and determine whether they are suitably qualified by training and/or experience to perform that job.

Correlation between ANZSCO and skilled job based visas

The ANZSCO forms part of the Immigration New Zealand (INZ) operational manual. INZ will refer to ANZSCO when assessing whether an applicant is eligible for a visa based on their “skilled” job, hence the skill level of an applicant’s job becomes a key factor in their assessment of these visas.

For Essential Skills Work Visas, different rules apply for each skill level. Depending on the skill level and the level of remuneration of the job:

  1. the applicant may get a Visa for a longer duration;
  2. the applicant may be subject to a stand-down period after a few years; and/or
  3. the applicant’s accompanying family member(s) may not be able to seek the type of visa they may wish as a dependent of a skilled job based visa.

For Skilled Migrant Residence Visas, an applicant must have a job (or a job offer) with a New Zealand employer that is “skilled”. Depending on the skill level and the level of remuneration, the applicant’s job may not be assessed as skilled to qualify for points for skilled employment. Similar rules now apply for prior work experience. They must also be “skilled”. Depending on the skill level of the applicant’s previous job, their experience may not be assessed as skilled to qualify for points for skilled work experience.

If you plan on seeking a skilled job based visa, it would pay to know the skill level of your current NZ job (or a job offer) as it may make an immense difference to what visa you can seek for yourself and/or accompanying family members (partner and children) and your future plans in New Zealand.

For a detailed assessment and advice on the skilled job based visas, come and speak to one of our immigration specialists today.

[1] Australian Bureau of Statistics. (n.d.). Retrieved May 1, 2018, from http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter32013,%20Version%201.2

[2] Statistics New Zealand. (n.d.). Retrieved May 1, 2018, from http://archive.stats.govt.nz/browse_for_stats/income-and-work/employment_and_unemployment/skills-employed-people.aspx

[3] Australian Bureau of Statistics. (n.d.). Retrieved May 1, 2018, from http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1220.0Chapter32013,%20Version%201.2

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Property, Refugees | Leave a comment

Skilled Migrant category changes have made it more difficult for migrants working in areas of identified Long Term Skill Shortage, to secure Residence

Changes to the points structure of the Skilled Migrant category in August 2017 have made it more difficult for those seeking to be granted Residence based on employment. These changes followed an increase in October 2016 of the points required for selection of an Expression of Interest under the Skilled Migrant Category, to 160. The October 2016 changes were made by a then National Government, arguably under a level of political pressure on the issue of immigration.

However a more restrictive approach adopted in August 2017 by the National Government and remaining unchanged under the current Labour Government, may be setting the bar too high. In particular, the approach after August 2017 places stricter rules around how skilled employment and work experience may qualify for points.

Before the October 2016 increase in the number of points required to 160, it was the case that applicants scoring 140 points or more had the possibility of being granted Residence, without a job offer. Due to the way the points system was structured, to be granted Residence without a job offer commonly meant that applicants needed to claim points for work experience or qualifications in an area of Long Term Skill Shortage. Applicants with work experience and qualifications in an identified area of Long Term Skill Shortage could secure Residence, without needing a job offer in New Zealand. This was of significance, given the difficulties associated with securing a job offer for many migrants who are located overseas, as many New Zealand employers want to meet with their potential staff member in person before they make an offer of employment.

Jobs in fields such as engineering and ICT appeared on the Long Term Skill Shortage List prior to October 2016 and while they still remain on the Long Term Skill Shortage List at the present, the increased points and post-August 2017 change to the structure of the Skilled Migrant requirement means that a job offer is now required.

There does seem to have been a reduction of the numbers of those in the following occupations, which appear on the Long Term Skill Shortage List, being approved Residence. The writer identifies the following changes from INZ statistics, from a) 1 April 2015 – 31 March 2016, b) 1 April 2016 – 31 March 2017, and c) 1 April 2017 – 31 March 2018.

  • Civil Engineer. a) 116, b) 122, c) 61.
  • ICT Business Analyst. a) 122, b) 125, c) 63.
  • ICT Systems Test Engineer. a) 68, b) 53, c) 11.
  • Quantity Surveyor. a) 101, b) 89, c) 35.
  • Software Engineer. a) 337, b) 288, c) 142.

Therefore it may be the case that an unexpected side effect of the changes to the Skilled Migrant category, which have effectively removed the ability to qualify without a job offer, have resulted in a reduction in the number of highly skilled migrants being granted Residence.

It may, of course, also be the case that the more restrictive approach adopted since August 2017, makes it more difficult for not just those working in the occupations identified above to be approved, but other occupations as well. Overall, the total number of migrants approved Residence in each of the time period identified is a) 13,975, b) 13,160, c) 6,376.

It may be viewed as a loss for New Zealand, that the number of both skilled migrants in the group identified and more generally, has fallen away somewhat. Others may view it positively, but the writer would suggest that with well documented shortages in areas such as construction and given the value of skills in ICT, they may need to explain why this is so.

Posted in Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | 2 Comments

Beyond Residence

There are many privileges of being a New Zealand Resident Visa holder. Naturally, there are also obligations that attach to this status which, for the most part, are easy enough to abide by. It is however important to be aware of some of the key “dos” and “don’ts” of being a Resident so as to avoid issues arising after the grant of residence.

Demonstrating a Commitment to New Zealand

There are differences between a Resident Visa and Permanent Resident Visa.[1] The plain Resident Visa has Travel Conditions – for the first time, they usually span 24 months[2]. This allows the holder multiple entries to and from New Zealand for that period only. When the Travel Conditions expire, a Resident Visa holder should normally be able to apply for a Permanent Resident Visa: a truly indefinite visa with no Travel Conditions. To do so, the Resident must be able to demonstrate a commitment to New Zealand[3] having:[4]

  • spent a significant period of time in New Zealand; or
  • acquired tax residence status in New Zealand; or
  • invested in New Zealand[5]; or
  • established a business in New Zealand; or
  • established a “base” in New Zealand.

For most Resident Visa holders, the first option is often the easiest. Essentially, it requires them to live in New Zealand for at least 184 days in each 12 month period for the 2 years directly before they apply for Permanent Residence[6].

Where a Resident Visa holder needs more time to meet the “commitment to New Zealand” requirement, they can apply for a Variation of Travel Conditions provided that:[7]

a) they are in New Zealand, or
b) they are outside New Zealand and the Travel Conditions have not expired.

There are other important restrictions which apply to the grant of a Variation of Travel Conditions to those on Resident Visas living outside New Zealand. The Courts have made it clear that it is the visa holder’s responsibility to investigate, understand and meet the conditions of their visa.[8] If you are on a Resident Visa, you must proactively research[9] or seek legal advice on the conditions of your visa because “residence, if not maintained, may be lost.”[10]

Charges and convictions

Another critical point:  if you are convicted of an offence whilst on a Resident or even a Permanent Resident Visa, you could face deportation.[11]

Very often, we see a Resident Visa holder who is either charged with or convicted of an offence involving driving with excess blood / breath alcohol[12]. If they haven’t yet been convicted, we are asked to provide the Court with an expert Affidavit explaining how a conviction could seriously damage their immigration status. This could be particularly helpful if they try for a Discharge Without Conviction under Section 106 of the Sentencing Act 2002. If the Section 106 application fails and the Resident Visa holder is convicted, Immigration New Zealand will start deportation action against them. As part of this process, the Resident Visa holder will usually be given the chance to give written reasons why deportation should be suspended or cancelled[13]. This may be the only real opportunity for the Resident Visa holder to argue their case with Immigration New Zealand, so the response should be carefully prepared. If the request is denied, they will be issued with a Deportation Liability Notice and the only options left at this point would be either to appeal to the Immigration and Protection Tribunal on humanitarian grounds, or to depart the country voluntarily.

In Summary

The moral of the story is:

  1. Do your homework. Understand the conditions of your visa and if in doubt, seek legal advice; and
  2. Don’t break the law. Over the years, we have seen many clients go through the unnecessary stress and trauma of losing their right to live permanently in New Zealand for reasons that could have been easily avoided.

The goal is not only to get residence, but to keep it once you’ve got it.

 

[1]           See Instruction RA1.1 and Instruction RA1.5 of the Immigration New Zealand Operational Manual for the currency and nature of residence and permanent residence visas, respectively.

[2]           See Instruction R5.66.5(a) of the Immigration New Zealand Operational Manual for exceptions relating to duration of travel conditions.

[3]           Immigration New Zealand Operational Manual, at Instruction RV2.5(c).

[4]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1 to RV2.5.20.

[5]           This option only applies to residence visas granted under the Business Investor Category. See Instruction RV2.5.10(a)(i) and (ii) of the Immigration New Zealand Operational Manual.

[6]           Immigration New Zealand Operational Manual, at Instruction RV2.5.1.

[7]           Immigration New Zealand Operational Manual, at Instruction RV3.1(b).

[8]           The Court of Appeal decision in Dahiya v Chief Executive of the Ministry of Business, Innovation and Employment [2016] NZCA 546, is one example.

[9]           This can include researching the Operational Manual or Immigration New Zealand’s website which has useful guides.

[10]          Doug Tennent Immigration and Refugee Law (Revised 3rd ed, LexisNexis, Wellington, 2017) at 119.

[11]          Please note there are other scenarios that can give rise to the liability for deportation of residence visa holders. See Immigration Act 2009 for details.

[12]          Land Transport Act 1998, at section 56.

[13]          Immigration Act 2009, at section 172(1).

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law | 2 Comments

Buying a Business – the Easy Way to Residence?

Umm, no, it isn’t.  Here’s why.

This post was inspired by a Herald article just before Easter, about an Indian international student who bought a café franchise with a plan to use it to get a business visa.  He did this because of the difficulties which international students now face in following the pathway to Residence after completing a New Zealand qualification.  The article doesn’t tell us whether he’s got his first Entrepreneur Work Visa (“EWV”), but it’s clear he hasn’t got Residence yet.  He apparently said that he saw the Entrepreneur route as a “more straightforward way” to become a Resident.

The Hard Road to Residence via Employment

In some ways this is understandable.  The traditional route to Residence after study begins with an open 1-year “job search” Work Visa.  The difficulties begin when you want to get a suitable job offer to qualify for a 2-year “work experience” visa.  Immigration policy requires firstly that this job be directly relevant to the major subject-area of the qualification.  In the last year, this has been interpreted much more strictly, with visa officers drilling down to the list of subjects studied and declining applications which were easily approved back in 2016.  The second test is whether the candidate’s diploma or degree was a key factor persuading the employer to hire them.  This has also become a painful exercise.  Take someone who was originally hired while on the job search visa, if they then apply for the work experience visa with the same job offer, Immigration may object that the employer was not influenced by the qualification at all, because they already had the employee on the books and did not need to look at the qualification when considering whether to keep them on.

Then there is Skilled Migrant Category (“SMC”) Residence.  A new scheme was opened in August 2017 which first of all introduced a salary threshold – your job will not be recognised as “skilled employment” unless it pays at least $24.29 per hour (about $50,500 on a 40-hour week).  People who got jobs in the $40-45K range last year suddenly found themselves in a dead-end position.  Secondly, the way in which work experience qualifies for points has become more devilishly complicated – you can now only claim for the years you worked where that work would be credited as “skilled employment” itself.  And there were other tweaks which were intended to favour age and experience over diploma certificates.

As a result, the number of SMC applications, and the number of approvals, have dropped away in the last few months.  Successive Governments pledged themselves to plug the flood of offshore students filling up the places on the Government Residence Programme.  And they seem to have succeeded.

Entrepreneur Residence – Harder Still

Back to our enterprising Indian student who said that the Entrepreneur policy offered a “more straightforward way” to Residence.  Sadly, nothing could be further from the truth.

Figures recently released by the Business Migration Team show that it has been declining an average of 93% of EWV applications month on month since late last year.  Less than 1 in 10 applicants have a chance of getting through.  Officials have admitted that they have determined to send the message that they simply will not grant visas to people who have not done an absolutely thorough job on preparing their business case.

Part of the reason is the need to demonstrate that the business proposal will deliver a “substantial benefit” to New Zealand.  Not just a benefit, but a big benefit.  There are three ways this can be done, by:

  • generating export earnings;
  • introducing a completely new product or service, or a new way of doing things which the NZ market has not seen; or
  • being “high growth” – whatever that means.

After someone gains their Entrepreneur visa, they then face probably an even greater challenge.  This is that they must meet all the objectives which they set out in their Business Plan for the 3-year duration of the Plan.  They cannot afford to drop the ball on any of them.  Forget economic fluctuations, forget the intervention of a new competitor in the market, forget all the stresses and reversals which most new businesses face – you must succeed at all costs, and in the manner which you confidently predicted all those years ago.  This is because the EWV only permits you to apply for Residence after proving that you have successfully operated the business for 2 years.

We have always known that the EWV option was hard, and ever since it was unveiled in 2014 we have actively discouraged people from applying.  The way things stand now, we could not recommend this option unless someone had a truly remarkable offering, and the business sense and attention to detail needed in order to file such a difficult application.  In most cases there will be another way, whether it be looking for that elusive skilled job offer, or moving $10 million to New Zealand as an Investor.

It’s pretty unlikely that buying an Esquires coffee shop will deliver any of the “significant benefits” mentioned above.  Franchises have fared particularly badly as a vehicle for getting an EWV granted, even before the more recent tightening on the screws.  Still, we wish our Indian businessman luck.  He’s going to need lots of it.  And this is only to get, and the keep, the Work Visa which is the first step in the Entrepreneur process.

Posted in Business, Citizenship, Immigration Appeals, Immigration Industry, Immigration Problems, Immigration Visas, Politics, Practice of Law, Property, Refugees | 2 Comments