The US Supreme Court and NZ Visas

The number of enquiries to Immigration NZ’s website from the US has quadrupled in the last couple of weeks. This follows the Supreme Court decision of Dobbs v Jackson Women’s Health Organisation (24 June 2022) which overruled Roe v Wade from 1973, the case which established the ability to have an abortion as a right protected by the Constitution. Why are Amercians so worried by this decision?

Ramifications of Dobbs

The Supreme Court claimed that its ruling was restricted to abortion, and said nothing about any other rights and freedoms. Yet in the same decision it was asserted that, because Roe had “distorted” the law for many years, there was now a justification for overruling other decisions that had relied upon the Roe doctrine and which had affirmed Constitutional protection for various rights. That is, the door was now open to winding back rights which are unpalatable to the Republican constituency in the US – the Supreme Court itself consisting of a Republican majority.

Dobbs declared that abortion was no longer a constitutional right, and was a matter for each State to legislate. It runs directly counter to the development of human rights law in many democratic jurisdictions, which have affirmed and entrenched various rights of individuals as being matters of private choice and self-determination, rather than those which can be given or withheld by an elected assembly. Without constitutional protection, such rights can be taken away without needing to answer the question “is this contrary to our Constitution?”

And there is more. For instance, there are now fears that part of Alito J’s opinion will be a barrier to litigation filed by those who cannot show that they are directly injured by the effects of climate change.

In their bids for nomination, several of the Supreme Court Justices declared that they would not touch Roe v Wade because of its precedent status. Their about-face in Dobbs has caused many, including those who supported their nomination, to feel betrayed and misled, and to ask what other promises they will break. Such is the risk inherent in politically-driven judicial appointments.

There is reason, then, for Americans to be afraid about the fallout from the Supreme Court’s approach. Some are now looking for another home. What options does New Zealand offer?

Working Holiday Visa (WHV)

People under 30 from a number of countries were able to come in WHVs until the scheme was frozen by the COVID-19 border closure in March 2020. This option has recently reopened, and allows US citizens aged between 18 and 30 to be in NZ on an open Work Visa for 12 months. They must have access to NZ$4,200 to cover their expenses, and must take out medical and comprehensive hospitalisation insurance for the duration of their stay.

Being on the ground here with a Work Visa provides an opportunity to explore longer term work opportunities, some of which might even lead to Residence in the long run. Those with university degrees and specialist skills – especially in areas like IT, construction or health – may have good prospects in an economy which is woefully short-staffed.

Accredited Employer Work Visas (AEWV)

From 4 July (yes, it is a coincidence), migrants can apply for Work Visas under the AEWV policy. However, they can only be offered a job by a NZ employer which has been granted the new form of Accreditation, and for a job which has been approved under the Job Check stage of the AEWV process. See our recent Corporate Newsletter describing the “3 gate” process.

Companies could only apply for Accreditation from 23 May 2022; and the Job Check phase only opened for business on 20 June. This means that, right now, few if any jobs will have been validated for offer to overseas workers. This is an evolving space, and Immigration’s ability to process the volume of both Accreditation and Job Check applications is still not clear.

Specific Purpose Work Visa (SPWV)

The most common flavour of the SPWV which will be of interest to people from North America is what is commonly known as the intra-corporate transfer. A multinational company places a key staff member in NZ to carry out a project or provide specialist assistance, and normally for a defined time period. Alternatively, a specialist is sent on assignment by their US employer to carry out work in a NZ company on contract.

Again, this SPWV route was shut during the border closure, but it is now an option which companies and employees can consider as a way of relocating to NZ, even if it is initially for a year or two. In some cases, we have been able to convert a SPWV to a longer-term Work Visa, as a springboard to Residence. The current Residence settings – or what’s left of them – are not amenable to this strategy. However, mounting political pressure to address chronic labour shortages across many sectors suggests that the Government ought to think hard about establishing new ways that migrants can secure a future here. Otherwise they will just leave, as they have been in droves over the last few months.

Investor Visas

This category is only for those who can invest a significant sum in NZ:

  • a minimum of NZ$3 million (US$1.85 million) for 4 years for Investor 2, and the investor must show at least 3 years’ of prior experience of owing or managing a business;
  • NZ$10 million (US$6.2 million) for 3 years under the flagship Investor 1.

Our vlog gives more details about the criteria, and some of the pitfalls. There was a drop-off in new applications over the last couple of years, possibly driven in part by a dramatic slowdown in deciding such cases. But early in 2022 it appears that additional resources were directed to clearing the backlog, so that this may be an ideal time to consider starting such an application.

About Simon Laurent, Lawyer

Principal of LaurentLaw Barristers & Solicitors. NZ immigration law specialist.
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