IMMIGRATION UPDATE 13 May 2020. ESSENTIAL SKILLS WORK VISAS in focus.
The following (italicised) is the update that has been sent to the industry by INZ. The update is very exhaustive and answers a lot of questions, I want to provide a short analysis about Essential Skills Work Visas (ESWV's).
If you are planning to submit an application or have an application under process, the key points are.
a) Employer Sustainability - Broadly your employer needs to be in a financial position whereby INZ is sure that your employment is ongoing and sustainable for the duration of the visa.
b) Labour Market Testing / Kiwi First - The labour market testing would need to be very rigorous and robust.
c) Applications already in process - INZ may PPI the applications despite all the information provided that would otherwise meet the policy guidelines and request updated (a) and (b) above.
The devil is in the detail, prima facie the changes are on expected lines, however it remains to be seen what threshold levels does INZ consider "sufficient".
Immigration (COVID-19 Response) Amendment Bill
As you may be aware, the Government has introduced a Bill to temporarily amend immigration legislation to support the quick and efficient management of visa changes during COVID-19. This is currently going through the House. You can keep up to date with the Bill’s progress here. We will provide you with more information about what this means for applicants and migrants soon.
Visa processing update
As you will be aware our processing efforts up to now have been largely limited due to the COVID-19 pandemic. INZ has focused on implementing the Epidemic Management Notice, applications from individuals who have a critical purpose for coming to New Zealand and some temporary visa categories for applicants who are already in New Zealand.
Visa processing capacity continues to grow. 70% of onshore Immigration Officers are currently able to work, this will increase as staff re-enter the office under Alert Level 2. All offshore offices remain closed and although onshore offices have reopened there are limited staff numbers due to COVID-19 alert level 3 guidelines and the requirement to work from home when possible.
With increased processing capacity and the ability for some staff to access INZ offices INZ is now able to resume the processing of paper applications such as residence class visa applications and formally prioritise both residence class and temporary entry class visa applications.
In terms of residence class visa applications, priority will be given where the applicant is in New Zealand. For onshore applications priority will be given as below:
For Skilled Migrant Category (SMC), priority will be given to applications with job offers where:
o Applicants have an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
o Applicants hold current occupational registration where registration is required by immigration instructions.
o For Residence from Work Category applications (Talent (Accredited Employer), Talent (Arts, Culture and Sport), South Island Contribution, Religious Worker and Long Term Skill Shortage List), priority will be given to:
o Applications which include a job offer with an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
o Applications which include a job offer which requires occupational registration where occupational registration is required by imm
Second priority will be given to residence class visa applications where the applicant is out of New Zealand.
In terms of temporary entry class visa applications;
priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand.
Further changes may be needed to the prioritisation criteria as international travel restrictions change, and more information becomes available about the effects of COVID-19 on the domestic labour market.
Immigration officers retain the discretion to prioritise other applications where the circumstances of the application require particular urgency.
As INZ transitions through the various alert levels processing will be resumed for most of the application categories.
Applicants are strongly encouraged to apply online for eligible visas. Paper applications will take longer to process because of the reduced capacity of staff in onshore offices. There will also be an increase in the time and effort required in processing some visa application types due to additional requests for information or comment being required.
We will keep you updated of any further changes.
National Area Documentation Office (NaDO)
The National Area Documentation Office (NaDO) has now reopened with a small number of staff now able to work onsite. The NaDO staff have been focused on opening and tendering the high volume of mail received during the lockdown period.
What date will be used as the lodgement date of my application that I couriered in / posted in?
The received application date will be the date that is shown on the courier consignment note. If there is no date to be found, the received date applied will be the date INZ opens your application at NaDO.
What if I want to dispute the date of lodgement of my visa application?
INZ understands that it has been difficult to complete and submit paper applications during COVID-19 lockdown. Disputes of lodgement dates may be considered on a case by case basis once the application has been allocated.
I have been granted an extension to my visa under the Epidemic Management Notice. Will the visa application I submitted still be processed?
Yes. Applications will continue to be processed in line with processing priorities during COVID-19.
What if my paper visa application is incomplete because I have not been able to get all the required documents during the Covid19
lockdown? Will my visa application be returned due to failing to meet mandatory lodgement requirements?
No. INZ understands that it may have been difficult to submit all required documents with your paper application. INZ will note the missing documents at lodgement and request that you provide the mandatory documents as soon as you are able. INZ will not be able to process the application until the required documents have been received.
Varying visa conditions
We have become aware of some confusion around variation of conditions. The Government agreed to relax visa conditions for a short period to allow some temporary migrant workers and international students to assist with our e
ssential services during the COVID-19 response. The form to apply to vary visa conditions of workers in essential services is on our website.
Only temporary migrants already employed in essential services can vary their hours and be redeployed to do other roles within their current workplaces or do their current role in different workplaces (but within same regi
on) to help essential businesses keep operating while New Zealand remains at Alert Level 3 or 4 and six weeks after that.
All work visa holders who are not employed in essential services may only work for the employer(s) specified in their visa conditions until a Variation of Conditions or new visa has been granted.
Essential Skills labour market test requirement
We’re now in a position to begin processing a wider range of visas, including Essential Skills work visas for applicants currently in New Zealand.
Advice to immigration offices on labour market testing and sustainability assessments for Essential Skills work visa applications (a Visa Pak) has been issued, and will be available on the INZ website.
Immigration instructions require an immigration officer to be satisfied that, at the time the application is assessed, there are no New Zealanders available to do the work offered, in order to grant an Essential Skills work visa. As part of the application process, employers must provide evidence that they’ve taken al
l reasonable steps to hire a New Zealander first. Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 occupations are also required to provide Skills Match Reports and advice from the Ministry of Social Development (MSD).
In normal circumstances, it’s unlikely the labour market would change significantly between when an employer attempts to recruit New Zealanders, and the time the application is assessed.
However, COVID-19 has greatly affected N
ew Zealand’s economy, and job market. More than 180,000 people are now accessing Jobseeker Support, and over 1.6 million people are associated with paid applications under the Wage Subsidy Scheme.
It’s vital that we also take the current employment environment into consideration. We need to make sure our processes reflect the government’s commitment to supporting New Zealand businesses, so they can continue providing their services, while also ensuring that employment opportunities are given to as many New Zealanders as possible.
To balance these factors, immigration officers may require updated information when assessing Essential Skills work visa applications that the employment offer remains valid and continues to be sustainable, and that there remain no New Zealanders available regionally and able to do the work on offer.
Concerns that New Zealanders may be now available, or that employment may not now be genuine and sustainable will be considered potentially prejudicial information (PPI) and applicants will be given an opportunity to comment and provide further information before a decision is made. This will allow applicants
to seek further information from their employer regarding the possible increased recent availability of New Zealanders, and confirmation that the employment remains valid, and provide any other relevant information they believe addresses the concerns raised.
Skills Match Reports
Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 occupations are required to provide Skills Match Reports and advice from the Ministry of Social Development (MSD). This requires employers to work with MSD to place New Zealand jobseekers into the role before offering employment to migrant workers.
Skills Match Reports are available from the Ministry of Social Development. Employers who require an SMR need to first list their vacancy
with the Ministry of Social Development and can do this on the Work and Income website.
Essential Skills work visa applications will generally be assessed in date order.
Applicants aren’t required to provide anything proactively - if more information is required, INZ will request it at the time the application is being assessed.
Frequently Asked Questions
We also understand that you may have questions about these changes, so we’ve developed a range of FAQs to help.
LABOUR MARKET TEST
Why am I being asked for updated information about the availability of New Zealanders?
Under current immigration instructions, INZ needs to balance facilitating businesses getting the workforce they need, and protecting the employment opportunities of New Zealanders.
COVID-19 has had significant impacts on New Zealand’s job market, and unemployment rates are rising. Assessing applications o
nly on information provided before the impacts of COVID-19 does not align with the requirement to protect the employment opportunities of New Zealand. This means that INZ needs to ensure that no New Zealanders are available to do the work being offered, before visas are granted to any migrant employees.
Do I have to re-advertise?
Employers aren’t required to re- advertise the vacancy, but they may need to provide updated information that there are still no New Zealanders available in this current job market, to the best of their knowledge. Employers may choose to re-advertise as part of providing further evidence.
What does genuine and sustainable mean? My business is receiving the wage subsidy, does this matter?
The employment offered to Essential Skills visa applicants needs to be for real and genuine work, for at least 30 hours per week. E
ssential Skills work visas are granted for a period of either 12 months, three years, or five years, and consideration needs to be given to whether the work being offered is going to remain available for the entire duration of the visa. It’s likely that New Zealand’s economic situation is going to continue to change, and employers must be confident in their ability to continue trading (to the best of their knowledge).
The wage subsidy provides support for business who have experienced a reduction in revenue, and doesn’t necessarily mean the business won’t be sustainable going forward. Employers receiving the wage subsid
y can still hire Essential Skills work visa applicants.
I’m confident my business and the employment is sustainable. But what happens if my business’s situation changes, and I can’t keep my workers on?
If your business situation changes then you must go through normal employment law processes. Any work visas holders who ar
e made redundant would then need to obtain new employment and either obtain a new work visa or vary their existing visa to begin that new employment if they wish to work and remain in New Zealand.,
What kind of things does INZ usually take into consideration if there are no New Zealanders available for the role being offered?
INZ considers a range of factors when determining whether any suitable New Zealanders are available for the work. This includes, but isn’t limited to, things like:
· the employer's case in support of an individual worker's application; and
· evidence of a genuine attempt by the emplo
yer to recruit New Zealanders, through advertising and the use of other channels, such as recruitment agencies
· advice from Work and Income about the availability of New Zealand citizens or residence class visa holder workers to do the work offered; and
· advice from relevant stakeholders within the particular industry, including unions
How long will it take to process the Essential Skills work visa application I’m supporting?
Due to the complexities of the situation and INZ’s current limited visa processing capability, we’re unable to give exact timeframes of when these applications will be processed. However, we aim to do so as quickly as possible given the current constraints on visa processing resources.
Can I submit this further evidence now, even though I haven’t been asked for it yet?
INZ will request additional evidence at the time the application is being assessed.
SKILLS MATCH REPORTS
What is the Skills Match Report (SMR)
and why is it important?
Current immigration instructions require employers seeking to employ an overseas worker for an occupation with an ANZSCO skill level of 4 or 5 are required to obtain a SMR from the Ministry of Social Development (MSD). A SMR details if any New Zealanders are available to work in the role being offered to the migrant worker. One can only be issued to employers who have advertised their vacancy with Work and Income New Zealand, where no suitable New Zealanders have been found.
Will I be able to get an SMR from MSD?
MSD have confirmed that SMR’s are available to employers who engage with MSD to recruit New Zealanders for vacancies.
What about if the role I want to recruit for is on the skills shortage list?
No New Zealanders are considered available if the job offered is on one of the skills shortage lists, and the applicants meets the qualification and work experience required by the list for that particular job.
What if I want to hire someone under the Skilled Migrant Category?
There is no labour market test for applications under the Skilled Migrant Category (SMC).
I need to hire someone but I can’t pay t
hem a full wage like I normally would. How does this impact the work visa application?
To be granted an Essential Skills work visa, the applicant must be paid the market rate for the role. Where you are unable to pay them the normal rate for the role, then you should provide evidence that either the market rate for the role has changed, or reasons why the visa should be granted despite the market rate not being paid. These applications will be assessed on a case-by-case basis. The wage or salary paid must also always be above the minimum wage. The pay offered may also affect the duration of the visa and whether the visa holder is able to support visas for fa
What if I want to recruit migrant workers in the future – how long will these changes be in place?
Decisions around changes to Immigration Instructions are made by the government. INZ and the wider Ministry of Business, Innovation and Employment is working through possible options for longer term solutions, and providing advice to the Minister of Immigration. This is a rapidly evolving situation and we’re unable to give a timeframe at this stage, but will keep employers informed and provide more informatio
n as decisions are made. In the meantime INZ will continue to process visas according to current Government policy as expressed in immigration instructions.
There might be New Zealanders available so
mewhere, but people aren’t able to move regions due to COVID-19. Does this mean I still have to hire them over migrant workers?
Employers who are unable to recruit New Zealanders for a vacancy due to COVID-19 restrictions should be able to provide evidence of particular barriers where this is the case.
If I can’t hire the migrant worker I need, I’m not going to be able to keep my business running. What options are available?
Essential Skills work visa applications will be assessed in date order.
Are we able to hire migrants for a
short period of time just to see us through, and move to hire New Zealanders later down the track?
Essential Skills work visas are granted for the duration that the employment is offered, for a maximum of period of 12 months, three years, or five years (depending on the skill level of the role). Employment law may determine what are considered sufficient reasons for offering employment for a fixed term and you may wish to seek legal advice on your options.