Generic filters
Exact matches only
Search in title
Search in content
Search in excerpt
Filter by Custom Post Type
Search in pages
Search in posts

Immigration law update

September 8, 2020

Print Friendly, PDF & Email

Our border remains closed, with most migrants unable to return to their jobs, homes, and, in some cases, their spouses or partners. 



Also, most migrants within New Zealand are waiting significant periods of time for their visa applications to be processed, exacerbating their vulnerability, and greatly frustrating business owners and employers.


Immigration New Zealand (INZ) is working to improve processing times and there have been several changes, particularly in the last few days, that will be of assistance to migrants and employers alike. However, the situation remains very challenging.


Work visa changes to make duration and process dependent on hourly rate


On 27 July, work visa rules changed so that work visa duration is no longer dependent on the occupation code (Australian and New Zealand Standard Classification of Occupation) that the employee’s position best matches with.


Instead, the length of a work visa is now determined by whether the employee is paid at least the median wage, which is currently $25.50 per hour. This level of remuneration enables the grant of a three-year visa. If the employee is not paid at this level, then he or she is only eligible for a six-month work visa. This makes the situation clearer for both employers and employees.


The hourly rate also determines how an employer must prove that there are no NZ citizens or residents available to do the work, which is a key requirement for the grant of a work visa. If a position pays less than $25.50 per hour, then the employer must list the vacancy with Work and Income before a work visa can be granted to a migrant. This is even if the migrant is currently in the position, and his or her visa just needs to be renewed.


Ongoing delays and frustration with residence visa applications


Eligibility for this has not changed to being determined on the basis of remuneration, as has happened with work visas. Migrants must continue to show that their position matches with a “skilled’ occupation code. Therefore, if an employee is looking to stay in NZ, long term, it is important to continue to be careful about choosing the right occupation code.


However, this is all rather moot right now, as INZ has not selected any Expressions of Interest, under the Skilled Migrant Category, since the lockdown. This means that any migrant who has not already been invited to apply for residence, will have to wait until the selection of Expressions of Interest resume before being able to progress a residence application. It is not clear when this will be.
Migrant employees who have work-to-residence visas, whether through an accredited employer or the Long Term Skill Shortage List, can still apply for residence. However, these applications are taking months to process. Therefore, migrants are advised to apply as soon as practicable, particularly given the delays in obtaining police certificates.


Work visas and visitor visas have been automatically extended


INZ has announced that migrants with certain types of “employer-assisted” work visas, whose visas were due to expire before 31 December, have been automatically extended for six months. These include “Essential Skills” work visas and work-to-residence visas. The migrants should have received an email from INZ confirming the automatic extension. If they have not, then they can check with INZ to be sure that the visas have been extended. It is important that employers obtain evidence of this, for their personnel files.


Peculiarly, INZ did not initially extend the work visas of partners of those people who had had their work visas extended. However, there has been a subsequent policy change, and partners whose visas were due to expire between 17 August and 31 December have also been extended.


Last Friday, the government also announced that it is automatically extending visitor visas for people within New Zealand, whose visas were due to expire between 4 September and 31 October. These visas are being extended for a period of five months. This is helpful for migrants who have been trapped here due to the border closures around the world and may need time to plan a further visa application or departure from the country.


Migrants’ ongoing difficulty with entering the country


NZ’s border remains closed. However, there are very limited exceptions, which are summarised below, that have recently been widened slightly.


Around 850 people, who already have temporary visas can return, when a new exception category opens in October. This is for migrants who have been resident in NZ for at least a year, and where their job is still open to them.


In other cases, an employer may be able to obtain a “critical worker” exemption to the border closure, for an employee who has “unique experience and technical or specialist skills that are not readily obtainable in New Zealand”; where the employee is essential for the delivery of a government approved programme; where the employee being in NZ will bring wider benefit to the economy; or if the employee is a “critical health worker”. From 10 August, there is $190 charge for a border exemption request, per employee. The criteria was loosened, slightly, on 11 September in respect of workers with unique experience and technical or specialist skills, which should improve matters for a number of businesses.


Individuals can also seek entry to NZ, as an exception, under humanitarian grounds. However, the threshold is very high, so very few requests are approved. The situation has to be exceptional, for example many of those that are approved revolve around medical situations.


Partners of NZ citizens and residents, who don’t currently have a visa, can also apply for an exemption to the border closure. However, INZ must be satisfied that the couple are in a genuine and stable relationship. If the couple are in separate countries, or have not been in a relationship for very long, this can make it problematic for INZ to assess the grant of the border closure exemption. Professional assistance is recommended, as these situations could be difficult even before the border closure, mainly due to couples being unable to evidence that they have lived together, in a genuine and stable relationship. The Minister has recently announced that the situation for partners seeking to enter NZ may also ease. We are hopeful that, once we see the detail, the situation will indeed become easier for separated couples.

  • Workplace mask exemptions
    September 16, 2021
    Workplace mask exemptions - what employers need to know.    New Alert Level 2 requirements bring greater complexity for employers. Testing, vaccinations and mask use...
  • Can I mandate a COVID test?
    September 10, 2021
    Everyone is talking about vaccination, but what about COVID testing in the workplace?   Rapid COVID testing kits will soon be a reality in New...
  • Our response to COVID-19
    August 19, 2021
    The health, safety and wellbeing of our team, communities and clients is of the highest concern to Anthony Harper. Consequently, we take very seriously the...