The importance of understanding your Work Visa conditions

If you hold a Work Visa, it is very important to make sure you work in line with the conditions on your Visa. Some types of Work Visa are “open” ie. they allow the holder to work for any employer (for example, a Work Visa based on Partnership). However, Essential Skills Work Visas typically have conditions that the holder must work for a specific employer, in a specific role, in a specific location and be paid at least a specified amount per hour.

The consequences of breaching Work Visa conditions can be dire. It left too long, it can result in the issue of a deportation liability notice under s 157 Immigration Act 2009.

RECENT SUCCESS STORY

We recently assisted a client who held an Essential Skills Work Visa and had been working in breach of the conditions, by working for a different employer and in a different location than specified. Our advice was;

  1. He had to immediately stop working at the new job, even though this meant he could not work at all for a period of time until a new Essential Skills Work Visa with conditions relating to that job was granted. Stopping work was necessary to show that our applicant and his employer was willing to comply with immigration law going forward;
  2. Prepare and file a new Essential Skills Work Visa application for the correct conditions and with all standard requirements met, including advertising the role to New Zealand citizens and residents.

The Work Visa application was eventually approved, but the need to prepare and file a new application was quite an undertaking and a nerve-wracking experience for both our applicant and his employer. We had to do quite a bit of work explaining why the Work Visa conditions had been breached, apologising and promising it would not happen again. Fortunately, INZ accepted our explanation and apology – but this might not be the case in all situations.

If we had been able to assist our applicant before he started working in the new job, our applicant may not have found himself in such a difficult situation. The subsequent period of uncertainty and financial hardship which he endured, through not being able to work while waiting for the outcome of the new application, could have been avoided. This demonstrates the advantage and value of receiving high quality immigration advice. It appears our applicant had got himself into difficulty by relying on faulty information received from social media platforms regarding what he could and could not do with the conditions on his Work Visa.

DO I NEED A NEW WORK VISA OR CAN I VARY MY CONDITIONS?

An Essential Skills Work Visa with conditions to work for a specific employer, in a specific role, in a specific location can be successfully varied if the holder wants to switch to to a different employer in the same location, provided the type of job remains the same.

  • generally speaking a “specific role” or “type of job” is the same if the same ANZSCO match applies
  • INZ usually considers “same location” based on region, for example, Auckland, Waikato, Bay of Plenty

If conditions are varied, the expiry date of the the Visa will remain the same – the varied Visa is not a new Visa – but if the conditions can be varied then this will save significant time involved in preparing and filing a new application, in particular the requirement to advertise to New Zealand citizens and residents. Varying conditions is not a difficult process, but it is important to understand when it is possible, ie. what conditions can and cannot be varied.

If the type of job or location of work associated with an Essential Skills Work Visa is changing, a new Work Visa application is required.

ADVICE FOR EMPLOYERS

If an employer hires someone to work in breach of their Work Visa conditions, the employer runs the risk of INZ saying that they have not been compliant with immigration law. This could affect the employer’s ability to hire migrant workers in the future. It can also be an offence under s 350 Immigration Act 2009, attracting a fine of up to $10,000 if successfully prosecuted. If the employer knows the employees cannot legally work for them and allows them to continue to do so, the fine can be up to $50,000. These fines are not insignificant.

If a company has been sufficiently careless about whether their people have the right visa for the job, or the work conditions violate employment law, then they can be blacklisted for a minimum of 6 months, during which they may not support visas for any migrant workers. Employers labelled in this way are named and shamed on a public list.

Our recommendation is that employers use the VisaView tool on the INZ website, available here, to check if a potential employee can legally work for them. This is a simple step to ensuring the employer and their worker do not run in trouble.

DO YOU NEED FURTHER HELP?

If you are an employer or employee and are unsure about what the conditions on Work Visas allow you to do and not do, it is prudent to seek professional advice. The Lawyers at Laurent Law can help. Visit our website, www.laurentlaw.co.nz and make an online consultation booking. We look forward to speaking with you.

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