Immigration Law: New essential skills work visa policy and the border exception process

In our last article, we discussed the fact that the labour market test (LMT) component of Essential Skills work visa applications was going to become much tougher in the post-COVID world. We also discussed the fact that the LMT applies to renewing or extending existing work visa applications as well as to new work visa applications and is likely to be a ‘dealbreaker’ in many upcoming visa applications. Immigration New Zealand has now released policy changes to the Essential Skills work visa, including LMT requirements.

With the borders now closed, many employers either have existing migrant worker staff who are ‘stranded’ offshore or are considering recruiting a new employee who is based overseas and want to know: can I get them into New Zealand? We discuss the latest position on both of these issues below.

With the borders now closed, many employers either have existing migrant worker staff who are ‘stranded’ offshore or are considering recruiting a new employee who is based overseas and want to know: can I get them into New Zealand?

We discuss the latest position on both of these issues below.

Changes to Essential Skills work visas

The Australian and New Zealand Standard Classification of Occupations (ANZSCO) classification will no longer be used as a component for determining the conditions of an Essential Skills work visa. From now on, the sole factor in determining the visa conditions, and also the nature of the LMT required, will be whether the rate of pay is above or below the median wage (currently set at $25.50 per hour).

The table below summarises these changes.

Some important implications that these changes mean for employers include: higher frequency of visa applications (now only a sixmonth visa in many cases) with a corresponding increase in time spent providing LMT information, a higher proportion of employers will now need to engage with Work and Income, and some employees who relied on their partner’s ability to work in New Zealand under the old rules may be forced to consider leaving.

Example:

A is a qualified baker (an ANZSCO level 3 role) and is paid an hourly rate of $23.50. They have a partner and school-aged child with them in New Zealand. The table below sets out the implications for A on the old rules and how A will be affected under the new rules when they make their next Essential Skills work visa application.

A’s partner currently has an open work visa, but once the next visa is issued, the partner will only be eligible for a visitor visa. This will mean A’s partner cannot work unless they can qualify for a work visa in their own right. A will also only be issued with a six-month visa and be able to stay in New Zealand for a maximum of three years (with the period starting when this first ‘below median wage’ visa is issued). At the end of three years, if A is not able to secure a visa in another category or get paid above the median wage (at that time), they will then be required to leave New Zealand and stay offshore for at least 12 months.

It is important to note that ANZSCO will still be very important for future residence applications, so care still needs to be taken when determining the most suitable ANZSCO classification.

As we recommended in our previous article, the importance of forward planning, good advice and careful preparation of supporting documents for visa applications cannot be underestimated when it comes to making successful visa applications, particularly in light of these new policy changes.

The closed border and sponsoring an exception request

As readers may be aware, in mid- June, Immigration New Zealand created the ‘Other Critical Worker’ border exemption, whereby an employer may request that an employee (and, in some cases, their dependants) be granted an exception to enter New Zealand. In general terms, it needs to be established that the employee, either:

• has unique experience and specialist or technical skills that are not obtainable in New Zealand

• is working on a time-critical role that is essential to a governmentapproved infrastructure or project and so on (there is a list of approved projects), or

• is undertaking a time-critical role that has a significant wider benefit to the national or regional economy.

We have helped several clients with making detailed submissions to support such a request and have now started to see the first trickle of decisions concerning this policy. Although we have had some good successes with these applications, it is fair to say that the bar remains very high, and employers should expect that only the most exceptional and compelling cases will be approved. That being said, this small ‘light at the end of the tunnel’ is still well worth exploring and will provide relief for some employers who can show their employee satisfies one of the entry criteria.

Rachael Mason is qualified in New Zealand, England and Wales, and has practised exclusively in the area of immigration law for several years. Rachael is a facilitator for HRNZ professional development courses, virtual courses and webinars. She works with both multi-national corporate clients and smaller local employers across a 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.