Skilled Migrant (Residence Visa) Category Applications in Practice - Legalwise Seminars

Laurent Law Solicitor Dew James and Principal Simon Laurent discuss Skilled Migrant (Residence Visa) Category Applications in Practice. Remuneration thresholds are reviewed annually based on New Zealand’s income data, with the latest adjustment coming into effect on 26 November, they write. This article recaps the key points from the authors’ recent presentation for Legalwise at the Immigration Law Update Seminar.

The Skilled Migrant (Residence Visa) Category is a points-based application involving a two-stage process. The First Stage is an online Expression of Interest (“EOI”). Candidates with the requisite number of points for employability and capacity building factors are selected from the Pool of EOIs and issued with an Invitation to Apply for Residence or “ITA” letter. This commences Stage Two of the application process whereby applicants are essentially required to provide documentary evidence to support the points claimed at the EOI stage. The residence visa application must be submitted within four (4) months of the ITA letter being issued.

1. Terms within employment agreements

As outlined in a previous article, in August 2017 Immigration New Zealand (“INZ”) overhauled the Skilled Migrant (Residence Visa) Category instituting key changes to policy. One of the most striking changes was the introduction of remuneration thresholds as a means of defining “skilled employment”, where previously a visa applicant’s job description as it related to their chosen ANZSCO Unit Group(s)[1] was the key yardstick by which “skilled employment” was measured.[2]

The remuneration thresholds are reviewed annually based on New Zealand’s income data.[3] Since the announcement was first made, there have been two such reviews and each one resulted in an increase to the minimum income threshold for all skill bands, the latest adjustment coming into effect on 26 November 2018:[4]

An applicant being paid an hourly rate for all hours worked is probably the least affected by the introduction of remuneration thresholds because – theoretically – regardless of the number of hours worked, the rate of pay should not drop below the minimum hourly rate stipulated in the employment agreement. This makes it easier for practitioners to assess and advise clients on whether they are likely to meet the remuneration thresholds in a Skilled Migrant Residence Visa application. The same cannot be said for an applicant being paid an annual salary.

Applying the following basic principles could assist visa applicants and in particular, their employers, to avoid complications arising during the application process:

• Hours of work – as far as possible, employers should provide fixed working hours and avoid stipulating a range of hours in the employment agreement because this could reduce the hourly rate to below the relevant minimum threshold
• Keep good records – where an employee may be required to work additional hours “as and when necessary” ensure clear records are kept of actual hours worked so the minimum hourly rate can be easily calculated[5]
• Compensate fairly – if necessary, advise employer-clients to seek independent legal advice from an employment law expert on the legality of the terms within an employment agreement. This includes getting advice on the best way to compensate employees for all hours worked, for example, by adding an Overtime clause to the employment agreement
• Verification – employers supporting residence (and / or work) visa applicants need to be prepared for their business to be scrutinised by INZ on such issues as financial sustainability to determine the viability of an applicant’s job

2. Claiming SMC points strategically

Other critical changes to the Skilled Migrant Category include the increase in total minimum points for employability and capacity building factors from 100 to 160, the allocation of points within certain sub-categories, as well as the requirements that must now be met to successfully claim points for “skilled employment” and “work experience”.

With these changes in mind, here are some tips that may assist practitioners when advising clients to claim points strategically:

• Minimum baseline – Determine as first step the sub-categories under which she has a high chance of successfully claiming points so as to establish a baseline of minimum points that are likely to be awarded by INZ
• Points for work experience – given the complex new definition, avoid claiming any points for “skilled work experience” unless absolutely necessary. Alternatively, only claim points for past experience which can be supported by strong documentary evidence, and limit this to only include recent work experience and / or experience gained in New Zealand
• Employment outside Auckland – discuss the option of working outside of Auckland to secure additional bonus points (e.g. intra-corporate transfer to a branch outside Auckland)
• Be conservative – avoid claiming unnecessary additional points beyond the minimum 160 to reduce the risk of issues arising during the residence stage

3. The art of classification

Unfortunately, the changes that came into effect in August 2017 did not dispose of the requirement to “substantially match” an applicant’s job to a relevant ANZSCO Unit Group. In most cases it will still be necessary for practitioners to assist clients with selecting a suitable ANZSCO Unit Group, and so the following strategies could aid in that process:

• Jurisprudence – the Immigration & Protection Tribunal (“IPT”) residence appeal decisions can provide authoritative guidance on how to apply abstract ANZSCO Unit Group descriptions and core tasks to real-world jobs
• Collaborative approach – compare and contrast the individual duties within an applicant’s job description and analyse how these correspond to the core tasks of her chosen ANZSCO Unit Group. Undertake this exercise with your client to determine how easy or difficult it will be to “fit” their employment within a particular ANZSCO Unit Group
• Finding balance – inherent within the issue of occupation classification is the struggle to find a balance between pitching a job at a skill level that will meet INZ’s definition of “skilled employment” while at the same time being careful not to overshoot the mark by pitching a job against an ANZSCO Unit Group which is beyond their skill level. The risk here being INZ raising concerns at the residence stage that an applicant’s job is not a substantial match their chosen ANZSCO Unit Group but rather a substantial match to a lower and “unskilled” (i.e. Skill Level 4 to 5) ANZSCO Unit Group

4. Final thoughts

Be mindful of how the recent changes to the Skilled Migrant Category impact on the terms of employment agreements. When in doubt, seek expert advice to avoid issues arising in the future.

Be strategic in the way points are claimed in a Skilled Migrant Category application. Claim points conservatively and only where necessary to meet the minimum points’ threshold.

Be proactive and pragmatic when it comes to assisting clients to find the right ANZSCO classification for their job. Actively research IPT decisions for guidance on the application of specific ANZSCO Unit Groups and provide robust advice to clients who are unlikely to meet the “substantial match” requirement.

Solicitor Dew James migrated to New Zealand from Malaysia in 2002 and she called the Far North home for the first few years. She graduated from the University of Waikato with a Bachelor of Laws with First Class Honours. Along the way she received several scholarships and even became a Law Tutor. She has experience in all areas of Immigration and Refugee Law and specialised in family-based applications and appeals up until now. Dew has extensive experience with special visas for victims of domestic violence. Her exposure has also enabled her to gain valuable experience with residence and humanitarian appeals as well as section 61 and Ministerial requests involving rights of the child. Contact Dew at djames@laurentlaw.co.nz or connect via LinkedIn 

Since starting practice representing refugees in the mid-1990s, Simon Laurent has developed a strong reputation as a leader in the Immigration field. He has chaired and presented seminars for both lawyers and immigration advisers, and has been called upon to provide industry comment for the media.  For several years Simon sat on the Council of the Auckland District Law Society. He convened the Society’s Immigration and Refugee Committee in 2006, 2007 and 2014. He is also a member of the NZ Law Society Immigration Committee. From 2010 to 2012 he was Chairman of the New Zealand Association of Migration and Investment.  Laurent Law accepts instructions to solve complex immigration situations, including referrals from other lawyers and advisers. Contact Simon at slaurent@laurentlaw.co.nz

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