Immigration Law Update: Employers of migrant workers – buckle in for a ride!

For employers of migrant workers and migrant workers themselves, 2020 has presented considerable uncertainty, and we have already seen numerous policy changes in reaction to the continuing COVID-19 situation. With what we know so far of the policy changes that have happened to date and those in the pipeline, it is clear the road ahead will not be an easy one.

The two major themes that can be seen are that:

• it will continue to be challenging to secure temporary work visas for migrant workers

• the possibilities for migrant workers to gain residence (and therefore remove themselves from the temporary visa ‘cycle’) are limited.

We do not expect these settings to change in the near future, so it’s a case of doing what can be done from a planning perspective to ensure you retain important migrant workers, and buckling in for the ride.

Employees stuck offshore

The border is closed, and our managed isolation facilities remain limited, meaning we can only allow a trickle of arrivals each day.

Most employees and prospective employees who are offshore will not be able to enter New Zealand for the foreseeable future. Immigration New Zealand (INZ) is not processing any employment-based applications where the application is offshore. Similarly, for those applicants who had visas issued but had not yet entered New Zealand, INZ is doing nothing to support these applicants to allow them to enter. The only possible way to secure entry for those offshore is through a successful ‘border exception’ request or, in limited circumstances, where the person had spent a significant amount of time in New Zealand before the border closure and can meet the narrowly defined policy requirements.

‘Border exception’ has a range of categories under which a special visa to allow entry through the closed border can be obtained. For employers, it is worth considering whether the ‘other critical worker’ border exception category can be applied to employees offshore. Although this policy has been slightly recalibrated since it was initially introduced, the bar remains high under this category, and it has a high decline rate.

Work visas

With levels of unemployment expected to continue to increase, the likelihood is that the labour market test component of Essential Skills work visa applications will continue to present challenges for employers supporting applications for their migrant worker employees. It will be particularly challenging in lower-skilled or lower-paid positions, where increased numbers of applications will be received and the assumption from INZ will be that it is relatively easy to train or upskill a New Zealand citizen to perform that role. In general terms, the higher the number of applicants, the more difficult it will be to satisfy INZ that no New Zealand citizens or residents are suitably qualified or readily trainable to perform the role.

A further note of caution in relation to Essential Skills work visas is the likelihood that INZ will incorporate a higher ‘median rate of pay’ into the policy. Stats NZ recently released the latest labour market information indicating the median rate of pay has now increased to $27 per hour. We anticipate INZ may look to increase the median rate of pay in the policy from the current rate of $25.50 per hour to $27 per hour in the near future. This increase will have a significant impact on Essential Skills work visa holders who are paid less than $27 per hour. Of particular concern to employers will be the fact that, until at least January 2022, those paid less than the median rate will only be eligible for a six-month work visa. The shorter visa length will present a significant challenge for employers who will then need to do labour market testing every six months to support further visa applications.

Also of concern to migrant workers paid less than the median rate will be the possibility they can no longer get an open work visa for their partner and may be subject to the 12 months offshore stand-down after three years.

A short window of opportunity is available now for making new visa applications for these applicants before the median rate of pay is increased. We recommend making applications even where the applicant holds a current visa that may be valid for a few months, to ensure you can lock in the longer visa length now before the changes are introduced.

Residence applications

New residence visa applications under the Skilled Migrant Category are effectively suspended until at least March 2021. This leaves the Talent (Accredited Employers) residence pathway as the only employmentbased pathway for securing residence. With the salary threshold for that category set at $79,560 per year (or $38.25 per hour), minimal options are available for most migrant workers in New Zealand to secure residence, meaning they are trapped in the cycle of needing to apply for new temporary visas (and show the labour market test requirements each time) for the foreseeable future. This position creates uncertainty for both employer and employee. An HRNZ webinar on the latest immigration changes is scheduled for 8 December 2020.

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 PD courses, virtual courses and webinars. Go to hrnz.org.nz/pd to see upcoming courses. 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.

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