The New Border Exceptions Explained

Following the Minister of Immigration’s announcement, Lauren Qiu, Principal at Stay Legal provides an overview of the new border exception category for some work and resident visa holders who have departed New Zealand.

On 9 September 2020, the Minister of Immigration announced the decision to create a new border exception category for some work visa holders who have departed New Zealand. In addition, Immigration New Zealand has also introduced instructions to include work visa holders who have been granted resident visas since departing New Zealand, but have not activated their resident visas by entering New Zealand, to make requests under this new border exception category.

These instructions come into effect on 9 October 2020. This article will explain the process, the requirements, how to prove job retention, and how partners and dependent children are treated under this new border exception category.

The Process

Applicants need to submit an Expression of Interest (EOI) and this will be entered into a pool of EOIs. EOIs will be selected from the pool periodically by lodgement date order.

EOIs can also expire in the pool if this new border exemption category ceases to be in effect and the EOI has not been selected from the pool. If an EOI expires, it will not result in an EOI fee refund.

Once an EOI is selected and if successful, Immigration New Zealand will issue an Invitation to Apply (ITA) with further instructions requesting documents. An ITA by itself does not mean guaranteed border entry, as it is issued based on the information provided in the EOI only. A decision will be made by Immigration New Zealand based on the documents submitted in response to the ITA.

This new border exception category has a cap of 850. The Ministry of Business, Innovation and Employment will consult with the Minister of Immigration and/or other Ministers if more than 850 visas are likely to be granted to applicants (who have received an ITA) under this new border exception category.

The Requirements for Work Visa Holders

To be eligible, work visa holders need to meet all of the following requirements:

1. They need to have departed New Zealand between 1 December 2019 and 9 October 2020 (inclusive) and are currently not in New Zealand.
2. At the time of departing New Zealand, they need to have held a valid:
   1. Entrepreneur work visa;
   2. Work to Residence work visa (Talent (Accredited Employer), Talent (Arts, Culture, and Sports), Long Term Skill Shortage List, Skilled Migrant Category Job Search, South Island Contribution, or Global Impact); or
   3. Essential Skills work visa (mid-skilled, higher-skilled, or their employment was assessed as being at/above the median wage).
3. Their visa has or had an expiry date of:
   1. On or after 1 January 2021; or
   2. Before 1 January 2021 and they have:
      1. Submitted a further visa application on or before 9 August 2020; and
      2. This further visa would, or if already approved does, allow them to stay in New Zealand for at least 12 months; and
      3. This further visa would allow them to work in the same job or operate the same business as they were employed in or operated at the time of departing New Zealand; and
      4. This further visa is a temporary visa that has been or is approved.
4. They have retained their job or business in New Zealand. This means:
   1. The same job they were employed in at the time of departing New Zealand in accordance with their visa conditions, remain employed in the same job, and have maintained their employment relationship continuously since departing New Zealand; or
   2. They held an Entrepreneur work visa at the time of departing New Zealand, they operated a business in New Zealand at the time of departing New Zealand in accordance with their visa conditions, and have continued to operate the same business since departing New Zealand.
5. They were in New Zealand for either:
   1. At least 273 days in each of the two 12-month periods immediately before the date they departed New Zealand; or
   2. At least 273 days in the 12-month period immediately before the date they departed New Zealand and they meet one of the following:
      1. They held an Entrepreneur work visa at the time of departing New Zealand, they operated a business in New Zealand at the time of departing New Zealand in accordance with their visa conditions, and have continued to operate the same business since departing New Zealand;
      2. They had one or more dependent children with them in New Zealand for at least 6 months of that 12-month period;
      3. They have parents or siblings who are 18 years or older, who are currently in New Zealand, and are ordinarily resident in New Zealand; or
      4. They have submitted an application for a resident visa on or before 9 August 2020.

The Requirements for First Time Resident Visa Holders

To be eligible, first time resident visa holders who have left New Zealand holding work visas need to meet all of the following requirements:

1. They need to have departed New Zealand between 1 December 2019 and 9 October 2020 (inclusive) and are currently not in New Zealand.
2. They need to hold a current resident visa that was granted after they left New Zealand.
3. At the time of departing New Zealand, they need to have held a valid:
   1. Entrepreneur work visa;
   2. Work to Residence work visa (Talent (Accredited Employer), Talent (Arts, Culture, and Sports), Long Term Skill Shortage List, Skilled Migrant Category Job Search, South Island Contribution, or Global Impact); or
   3. Essential Skills work visa (mid-skilled, higher-skilled, or their employment was assessed as being at/above the median wage).
4. If the work visa they held at the time of departing New Zealand had an expiry date before 1 January 2021, they need to have submitted their application for a resident visa on or before 9 August 2020.
5. They have retained their job or business in New Zealand. This means:
   1. The same job they were employed in at the time of departing New Zealand in accordance with their visa conditions, remain employed in the same job, and have maintained their employment relationship continuously since departing New Zealand; or
   2. They held an Entrepreneur work visa at the time of departing New Zealand, they operated a business in New Zealand at the time of departing New Zealand in accordance with their visa conditions, and have continued to operate the same business since departing New Zealand.
6. They were in New Zealand for either:
   1. At least 273 days (around 9 months) in each of the two 12-month periods immediately before the date they departed New Zealand; or
   2. At least 273 days (around 9 months) in the 12-month period immediately before the date they departed New Zealand and they meet one of the following:
      1. They held an Entrepreneur work visa at the time of departing New Zealand, they operated a business in New Zealand at the time of departing New Zealand in accordance with their visa conditions, and have continued to operate the same business since departing New Zealand;
      2. They had one or more dependent children with them in New Zealand for at least 6 months of that 12-month period;
      3. They have parents or siblings who are 18 years or older, who are currently in New Zealand, and are ordinarily resident in New Zealand; or
      4. They submitted their application for their current resident visa on or before 9 August 2020.
7.  They are required to meet health and character requirements but are not required to provide medical or police certificates with their application unless the immigration officer has received information that indicates that these requirements have not been met.

Proving Job Retention

For applicants who need to prove that they have retained the same job they were employed in at the time of departing New Zealand, they will need to provide a statutory declaration completed by their employer that states that they are:

1. Currently employed in the same job they held immediately before departing New Zealand, and
2. The employment relationship has been maintained continuously since they departed New Zealand.

Partners & Dependent Children

Partners and dependent children of applicants may be included if they currently hold, or held at the time of departing New Zealand, a visitor, work, student, or resident visa based on their relationship to the applicant. Any dependent children born on or after 1 December 2019 may also be included.

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