In an exclusive Q&A session with Legalwise Seminars, Lauren Qiu, Principal at Stay Legal looks into the critical updates to work visas as well as providing a guide to compliance. She will be delving further into this topic at the upcoming webinar, Work Visas: Critical Updates and a Guide to Compliance on Thursday, 6 August 2020.
What Does the COVID-19 Labour Market Test Update Mean?
Immigration New Zealand recently announced the COVID-19 labour market test processing guidelines for immigration officers. For most Essential Skills Work Visas (where the migrant worker does not meet the requirements for any skill shortage list), employers need to satisfy the labour market test by making genuine attempts to advertise the job vacancy to demonstrate that there are no suitable New Zealand citizens, permanent residents, or residents (New Zealanders).
Immigration officers must now be satisfied at the time of assessment that there are no suitable New Zealanders available to fill the job vacancy. This means that once a migrant worker’s work visa has been allocated to an immigration officer, the immigration officer may request further updated labour market test evidence. While immigration officers cannot specifically request for new advertisements to be carried out, this is likely to be the most efficient way to satisfy the COVID-19 labour market test.
The immigration officer may also contact the employer to confirm that the job offer remains valid and sustainable (over the duration of the employment offered). The fact that an employer has received funding from the COVID-19 Wage Subsidy Scheme does not by itself indicate that the job offered is non-genuine or unsustainable. This job validity and sustainability confirmation also applies to some Variation of Conditions applications.
This change means that there will be delays to the processing of work visas. Practitioners should encourage migrant workers to start the work visa process early. Practitioners should also advise employers to manage their labour market test process carefully and be prepared to submit further labour market test evidence.
What are some tips and considerations you can recommend for employers to ensure compliance?
Employers need to be mindful of potential COVID-19 triggered immigration compliance issues. The most common immigration compliance issues are triggered by pay reductions, working hour reductions, recruiting migrant workers, and redundancies.
Migrant workers with employer-specific work visas need to follow their visa conditions. This means they must follow what is specified on their visa (job title, location, and employer) and meet the relevant minimum pay threshold. Pay and working hour reductions are likely to impact migrant workers if they fall below their work visa’s minimum pay threshold and/or no longer work full-time (30 hours per week for immigration purposes) as they no longer meet the criteria for their work visa. It is important for employers and migrant workers to get prompt immigration advice if this has or is likely to occur. While Immigration New Zealand has indicated that they will take COVID-19 related employment history issues into account on a case by case basis, it is still best practice for employers and migrant workers to adhere to visa conditions.
Employers who are recruiting migrant workers should use VisaView to check migrant workers’ visa situations. Migrant workers with “open” work visa conditions can work in any job, in any location, and for any employer. Migrant workers with employer-specific work visas under a different employer will likely need to apply for and be granted either a Variation of Conditions or a new work visa prior to commencing work.
If a migrant worker holding an employer-specific work visa is made redundant, their visa is technically no longer valid because they are no longer in the job their visa is based on. Currently, the responsibility to inform Immigration New Zealand is on the migrant worker. While employers have no obligation to report redundancies to Immigration New Zealand, we recommend for employers (especially accredited employers) to still inform Immigration New Zealand. Employers should also take care when going through a redundancy process as Immigration New Zealand will ask about redundancies when the employer applies for employer accreditation and when they are sponsoring work visas.
Briefly, what other upcoming Immigration in New Zealand changes should practitioners be aware of?
Practitioners should be aware of Immigration New Zealand’s employer-led work visa system overhaul. The proposed overhaul will be implemented in stages. The current work visa system will be replaced by a new system that will have an employer gateway, job gateway, and worker gateway. It is important to emphasise that these changes are proposed and are subject to modification.
The proposed mid-2020 changes include the new median wage-based Essential Skills Work Visa classification system (a shift away from the current ANZSCO code, and remuneration based skill-band classification system) and the reinstatement of lower-skilled/low-paid work visa holders’ ability to bring family.
The proposed 2021 changes include the introduction of a new temporary work visa (to replace 6 existing employer-assisted work visa categories) and the new employer-led visa process where all employers that sponsor migrant workers will need to have some form of employer accreditation.
It is also important to note that the Immigration (COVID-19 Response) Amendment Act was passed in May 2020. It gives the government eight robust discretionary powers for a period of 12 months. We are likely to see more immigration related changes trickle through in the coming months.
Lauren Qiu is the Principal of Stay Legal. She is an experienced specialist immigration lawyer who provides honest advice and practical solutions. She has presented at national and regional seminars on immigration law. Lauren is currently an immigration law guest lecturer teaching aspiring immigration advisers.
Lauren is practical, effective, and dedicated. Lauren has assisted employers with practical advice, high net worth individuals with tailored solutions, skilled migrants and their families to gain residency, and unlawful migrants regain their lawful status. She has successfully requested character waivers, medical waivers, ministerial special directions, and appealed decisions. Connect with Lauren via email or LinkedIn 
