Laurent Law Barristers & Solicitors
7A Maidstone St
Grey Lynn, Auckland, 1021, New Zealand
Ph. +64-9-630-0411; Fax +64-9-630-0412
We have held off publishing much about the immigration situation in the last few months. The Government's efforts to react to the challenges posed by COVID-19 and the border closure have meant that, until recently, nobody much knew what was going on. Decisions on many key issues were deferred, or simply have not been made.
Secondly, the mechanisms for making decisions and granting status to migrants have been in a repeated state of flux. It was risky to make any claims about what was happening, because that advice was likely to be rendered redundant a few days or weeks later.
The situation has stabilised, but not much. We hope that what follows will be of some use for the time being.
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Reconsiderations - the Movie
It took life under Lockdown to encourage us to make the move to video.
One vlog that might be useful is a discussion of how to challenge the decline of temporary visas such as Work Visas. Requesting a reconsideration can be a powerful way to get an employee's case looked at afresh, sometimes by a more senior and experienced visa officer. It also gives an opportunity to add new information which could help to produce a positive result.
As immigration specialists, we work in this space frequently, and have a pretty good idea of what works - and what doesn't.
Work Visas - the Moving Playing Field
Some dramatic changes to Work Visa settings have sneaked up on us in the post-Lockdown world.
Since August 2017, employer-assisted Work Visas have been defined as high-, mid- and lower-skilled according to the hourly salary being paid. They were also tied to the job classification under the ANZSCO. The skill level affected the length of the visa, the way the labour market for that job had to be tested, and the visas people could get for their family.
From 27 July, a single dividing line comes in. ANZSCO is no longer relevant - that is, a poorly paid engineer will be treated as lower-skilled just because of the salary they get. Everything hangs on the hourly rate, either above or below $25.50 per hour which is currently the national median wage. Those above the line:
- get 3-year visas;
- can bring partner or children in on Work and Student Visas;
- are subject to the usual need to show that the job has been advertised.
Those below the line:
- get 6-month visas at a time, for a maximum stay of 18 months - then they must stay away for 12 months;
- can only support their family for Visitor Visas;
- have to get the employer to list the job with WINZ for a Skills Match Report.
One thing that leaps out is the short duration of each visa for those below the median wage - 6 months. The rationale is that those being paid less are filling a very temporary space, which will soon be taken up by New Zealand workers including those returning from overseas.
In my recent blog I talk through some of the practical effects of these changes. They are going to make life more difficult both for migrants and for their employers. We may be able to assist in navigating the potential pitfalls.
Getting a Critical Worker
The previous article mainly applies to getting further visas for people who are already in NZ. The following addresses the very limited ability to bring workers in from overseas.
As we all know by now, the default position is that the border is closed. Limited quarantine facilities, and the trend of New Zealanders returning home, means that only a trickle of overseas people are able to get in.
There is a mechanism for some to request entry for a "critical purpose".
Critical health workers
are those with skills in a defined list of medical occupations, and they are to be employed in one of a range of employment settings, from hospitals to medical centres to rest homes. This category is a little unusual, in that acceptable occupations and employers are set out on the INZ website rather than being defined in Immigration Instructions. This presumably makes it easier for prospective workers and employers to find that information directly; and allows INZ to change their lists quickly.
Other critical workers
" can come in if they have a unique skill-set or characteristics which cannot be found in NZ (the most notorious example right now is the
crew); or required for a "time-critical" role in a major infrastructure project or Government-approved scheme. The main focus seems to be on using migration to drive programmes that can lead economic recovery in the face of an impending recession.
These applications must be made by an employer, not the visa applicant. The first step is to put in a
Request for Approval
to a dedicated email address. It is necessary to make the case for why the worker is required, including a broader class of cases that could bring "significant wider benefit to the national or regional economy".
We may be able to help to craft an employer's case for bringing such workers in, by careful application of the criteria to the particular situation.
. . . But Here's the Kicker
The default position on approval of either critical health workers or critical other workers is that they can only get a Visitor Visa with work conditions for a maximum of 6 months.
Other critical workers can qualify for visas longer than 6 months if they:
- will be paid more than $106K p.a. (2x the median wage); or
- have an essential role in a Government-supported science project; or
- have an essential role in a Government-approved programme or event, or major infrastructure project. There is a list of such projects, events and programmes.
Another subset of those potential migrant workers can get visas of up to 24 months "in special cases". The test is whether they are "supported by a Government agency with a role in operationalising any measures required to respond to the COVID-19 situation."
Arguably, this could be interpreted quite broadly. For instance, this might apply to a local authority using a Government stimulus package to build roads or carry out environmental work, and thereby generate jobs. On the critical health worker side, it is likely to limit the choice to District Health Boards running public health services through hospitals etc..
The difficulty is that the volume of such applications that can be successfully filed, and the recent opening of these policies, makes it difficult to say much more about which types of applications will work - and which will not. The exception is for those occupations or those projects which are already explicitly named. Everyone else has to take their chances.
The operational rules being applied by Immigration New Zealand, in granting exemptions for entry, are opaque. While an applicant for a longer-term visa might, for instance, meet the salary requirement set out above, they still need to satisfy INZ that they are essential to an important venture, and have skills that are unique. Putting such a case together is where we may be able to add value to an employer considering a key person for their operation.