Immigration Law: Compliance: what is it, and why is it important?

Rachael Mason, Partner at Lane Neave, provides an overview of immigration compliance and why it is so important for employers of migrant workers.

Whether you have one migrant worker employee or many, if your organisation’s operations are not squeaky clean when it comes to ensuring you are immigration compliant, the impact can be far-reaching.

What is immigration compliance?

As an employer, you have an obligation to ensure that your employees have the legal right to work at your organisation and, importantly, that they have the right to work in the specific role that you have offered to them.

Maintaining immigration compliance requires careful monitoring of the visa conditions of work visa holders as well as the expiry dates. Depending on the size of your business and the number of migrant workers employed, it will be necessary to develop appropriate systems and processes to ensure you are able to maintain your company’s immigration compliance.

A large number of different visas allow the holder to work in New Zealand, and understanding what the different categories are and what they entitle the holder to do is an essential component of maintaining immigration compliance.

Examples of non-compliance include:

• allowing students to work more than the allowable 20 hours per week during term time and full time during vacation periods

• allowing a migrant worker to work in a location other than that stated on their work visa (for example, to provide ‘sickness cover’ while a person based in Queenstown is unwell, you redeploy their counterpart from Dunedin to cover the position temporarily)

• changing the terms and conditions of employment where the work visa has not first been updated (for example, a change of job role, such as a promotion, where a further work visa or variation of conditions application should have been made prior to the changes taking effect)

• allowing employees to continue to work while on an interim visa (where the terms of the interim visa do not permit work)

• allowing employees to work for another company within your group of companies (but not the company named on their work visa).

Lane Neave has worked with several employers who have either inadvertently allowed these situations to happen or where it has been more deliberate. For example, in some situations, a line manager or business owner has allowed or encouraged an employee to work in breach of the conditions of their visa. In both cases, even where the matter has arisen without any deliberate intention to breach immigration policy, Immigration New Zealand (INZ) has determined that the employer is non-compliant.

Penalties for non-compliance

Employing someone who does not have an appropriate work visa to enable them to undertake the work you have offered can trigger an offence under the Immigration Act 2009. The fact that the employer did not know that the person was not entitled to do the work is not a defence unless it can also be shown that the employer “took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work”.

Having sound systems and processes will be an employer’s best opportunity for demonstrating “reasonable precautions” and “due diligence”. In the most serious cases, a breach under the Act can lead to a penalty of up to $50,000.

In most cases, if an issue of noncompliance is identified, provided it is relatively minor, INZ is unlikely to pursue a prosecution under the Act but may, instead, note in its systems to indicate its view that the employer may be non-compliant. This situation can make it very difficult for any future visa applications.

An important policy requirement for many of New Zealand’s work and residence visa categories is that the employer must have a “history of compliance with New Zealand’s immigration and employment laws”. If INZ considers the employer to be non-compliant, the likely outcome is that individual visa applications will be declined on that basis. If individuals are unable to secure a further suitable work visa then their employment must be terminated. It can easily be seen how a finding of non-compliance (albeit for a relatively small and/or accidental issue of non-compliance) can have significant and ongoing repercussions for an employer (and their employees). The risks associated with being unable to secure further work visas for staff are considerable and could include: employment relations allegations (for example, the employee could raise a personal grievance on the basis that the employer “made me do it”), business disruption, issues of attraction and retention of employees, to name a few.

If the non-compliance issue arises out of an employee(s) working in breach of their visa conditions, then it is likely there will be serious implications for the individual too. A visa holder who has breached their visa conditions is potentially liable for deportation and likely to face difficulty meeting the “bona fides” test in future visa applications.

How to ensure compliance

Every employer of migrant workers needs to have a good understanding of the different visa categories that their employees hold and what each visa permits, together with ensuring that they have systems and processes for maintaining immigration compliance that are “fit for purpose”.

Depending on the size of the organisation, this could require quite sophisticated systems and processes or it may be as simple as a spreadsheet to track expiry dates and visa conditions. This area is a complex one, and there is no quick-fire answer to getting it right.

However, important pointers HR professionals should bear in mind when managing this aspect of their workforce include:

• tracking expiry dates: keep careful track of the visa expiry dates of migrant worker employees and remind them to renew their visas well in advance of expiry dates

• keeping good records: store good records of the right-to-work documentation checks you make for each employee

• using VisaView: make use of VisaView in addition to making your own right-to-work checks and keeping a record of them

• understanding changes may trigger visa requirements: keep careful track of the visa conditions of migrant workers and seek advice before making any changes to terms and conditions of employment

• taking care with students: be aware of the special conditions on student visas, and take extra care to ensure they do not work beyond the allowances on their visa

• getting good advice: if you become aware of issues of noncompliance, get expert advice on the best way to handle them. It’s often better to ‘come clean’ to INZ rather than wait for them to uncover it

• reviewing systems and processes: it’s always better to proactively implement systems and processes rather than retrospectively after things go wrong. Undertake a review of your approach to ensure it is robust for ensuring compliance.

Rachael Mason is qualified in New Zealand, England and Wales and has practised exclusively in the area of immigration law for several years. She works with both multinational corporate clients and smaller local employers across a wide range of industry sectors in managing their global and local migrant workforces and developing and maintaining compliance and legal right to work policies. Rachael is focused on providing highquality technical immigration advice that is both pragmatic and commercial. Rachael regularly presents to HR and other professionals regarding immigration policy changes and issues related to recruiting and maintaining an immigration-compliant workforce.