Employers Tripped Up by Essential Skills Visas

Employers are coming to us for help because they can’t keep the same migrant workers whom they have come to rely upon for the success of their business.  Their job hasn’t changed, but Work Visas that used to be approved without too much trouble are now being declined left, right and centre.

We can appreciate their frustration.  The common story is as follows:

  • The employee got a Work Visa 2 or 3 years ago for a moderately skilled position – maybe an assistant manager or technical sales representative
  • That visa is expiring so the employee applies for a new Work Visa.  The company goes through the same motions as they did last time – a couple of weeks of advertising, maybe getting an email back from WINZ (Work & Income New Zealand) to confirm that they don’t have anybody on their books who could do the job
  • Immigration responds with a lengthy criticism of the employer’s failure to advertise, and some generic statement that “WINZ informs us that there are New Zealanders available to be trained for the position.”

That’s usually when they come to us to help salvage the application before the employee is declined and becomes an overstayer.

Actually, the Work Visa policy (called Essential Skills) has not changed.  What has changed is how Immigration staff are using it.  They appear to have been told to take a harder line on what is called the Labour Market Test.  This requires Immigration to work out whether the employer has made a “genuine attempt” to fill the position with local people.  They usually fall back on asking WINZ, which invariably seems to come back with a standard statement that they have “suitable” people who can take up the work or be trained for it.  In many cases Immigration is not forced to seek information from WINZ, but they do it anyway because it gives them an easy way to tick of the application.  The visa officers will ignore the employer’s protest that they have contacted WINZ themselves who replied that they had no-one to hand.  This is despite the fact that what the employer says can actually be factored into answering the Labour Market Test.

Furthermore, visa officers take issue with what they see as limited efforts to advertise the position.  Employers may put the job on Seek for 3 weeks to test the waters; and a while ago that was enough.  Not any more.  We have seen some case officers claim that the employer is expected to make “extensive” attempts to recruit – although no such requirement exists in the policy.

It usually does little good to protest that the worker has become indispensable because they have been in the job on their last Work Visa for 2 or 3 years.  Immigration New Zealand has explicitly directed that the high regard which the employer holds for the employee is irrelevant to assessing the Labour Market Test.  Forget about the practical reality that having to let a good worker go in order to take on and train an unknown new recruit costs New Zealand employers money, time and productivity.  The Government is fixated on preserving jobs for New Zealand voters – even if they don’t want to do the work.

We can’t change the status quo, at least not directly.  I was one of those asked in January to give input to a review of how the wording of the Labour Market Test should be interpreted.  There is no news yet on whether this will result in any changes.  At best, WINZ might take a more realistic approach to its Labour Market Check reports to Immigration.

From my point of view I say the following to employers (and their staff who need to renew their Work Visas:

  1. Do not assume that just because a visa was granted last time that it will be approved again
  2. Do a thorough job advertising the position which the Work Visa is meant to cover
  3. Make sure the advertisement matches the actual job on offer, and refers to some of the special features of the job (for instance, the need to have a certain number of years of experience)
  4. Look at the Job Description – does it actually record what the person does (= good), or is it vague and general (= bad)?

Consider getting professional help with the visa application at the outset.  Sometimes when we are called in part-way through, the damage has already been done.  We can seldom buy more time for the employer to run more advertising.  Sometimes Immigration will look suspiciously at an attempt to re-describe the job to highlight why it needs a special set of skills.  We (and other professionals in the field) can increase the chances of success considerably if we are called in at the stage where we can advise on the best wording for the job ads or the Job Description.

Getting these things lined up properly can mean visa approval.  Failing to do it well can mean the loss of a good employee forever.

Advertisements

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
This entry was posted in Immigration Problems, Immigration Visas and tagged , , , , , , , . Bookmark the permalink.

2 Responses to Employers Tripped Up by Essential Skills Visas

  1. JT Hizon says:

    If people are having problems with their visas, they can always consult immigration lawyers for help. They can be of great help. They will tell you what and how to solve the problem.

    Like

  2. Pingback: Why “The Block” Builder Got Blocked | Laurent Law Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s