Immigration Law: Securing work visas for migrant workers in the post-COVID world

The coronavirus pandemic will leave thousands of Kiwis without jobs. So what impact will this seismic shift in unemployment have on our local labour market and the ability of employers to hire migrant workers in the coming months? What should employers who have already employed migrant workers expect when it comes time to renew their visas? Rachael Mason, Partner at Lane Neave, provides answers to these and other questions.

New Zealand has changed – and so will our immigration policy. With thousands of Kiwis left unemployed in the wake of the coronavirus pandemic, a critical part of New Zealand’s recovery, both economically, and from a wellbeing perspective, will be to get the country working again. In the postCOVID world, government policies will be geared towards reducing unemployment. In terms of our immigration system, this will result in much tougher policy requirements needing to be met before a migrant worker can be offered a job.

To ensure genuine efforts have been made to hire a Kiwi, any visa applications submitted by migrant workers, based on a job offer being made for a job that could go to a Kiwi, will come under increased scrutiny. Any future application will need to ensure that the employer has satisfied the labour market test (LMT) and broader policy criteria.

The priority will be on making sure that Kiwis get first crack at job vacancies, so the expectations on employers to place ‘Kiwis first’ will be much greater. This expectation will be true in relation to employers of migrant workers across almost every industry sector and from highly skilled, specialist roles through to entry-level ‘low-skilled’ roles that require little or no formal education or training. In short, there will be fewer visas to go around, and an increase in the number of applications challenged and/or declined. In this new environment, for employers who have come to rely on migrant workers in their business, challenges lie ahead.

Labour market test

Our most common work visa category is the Essential Skills work visa. For an Essential Skills work visa to be issued, the LMT must first be satisfied. The LMT requires that the employer has made genuine efforts to recruit a New Zealand citizen or resident who is suitably qualified by training and/or work experience for the role or who can ‘readily be trained’ to take up the work on offer.

The LMT requires the role to be advertised via a national newspaper or website and, for lower-skilled roles to be listed with Work and Income.

To show that the LMT is met, employers will be expected to conduct a genuine recruitment campaign, including interviewing any candidates who appear suitable for the role. A detailed explanation of why New Zealand citizen or resident candidates who applied (including those who applied via Work and Income) were not offered the role will need to be provided.

Examples

It is important to note that, for existing migrant workers to be able to renew their work visas, the LMT will be a component of their visa extension applications. The rationale is that the conditions of the local labour market may have changed since that person’s visa was originally issued and it is, therefore, appropriate to re-test the market to see if suitable Kiwis may now be available for the role. The COVID-19 pandemic and the considerable increase in unemployment is exactly the type of scenario this policy was designed for. It is likely these visa extension applications will also be heavily scrutinised to ensure the LMT requirement has been met.

The importance of the requirement to consider those who are ‘readily able to be trained’ will have increased significance in this new labour market. Although an employer may prefer a migrant worker who possesses a general qualification plus additional specialised experience, if Immigration New Zealand (INZ) considers a Kiwi with that general qualification could readily be trained through on-the-job training in the specialist aspects of the role, then INZ will expect the role to be given to that Kiwi in preference over the migrant worker.

Another example is where an incumbent migrant worker employee is in an established role. That employee may have been with the organisation for several years and have developed excellent proprietary knowledge of that company’s systems, products or processes throughout their employment, making them a ‘preferred’ candidate for staying on in the role. However, if a suitably qualified Kiwi applies for the role, preference or length of service alone will be insufficient grounds for selecting the migrant worker over the Kiwi.

Given the substantial numbers of likely unemployed Kiwis, at every skill level within the labour market, it can readily be seen that numerous potential examples of these scenarios will occur over the coming months, and employers should be prepared for the tougher LMT.

Talent visas

It’s also worth noting that, even in relation to other visa categories that rely on an offer of employment, such as the Talent – Accredited Employer category, increased scrutiny will be applied to all other policy aspects, given the priority of protecting the local labour market. Importantly, there is likely to be an increased focus at the point of employers making an application for Employer Accreditation, to show their genuine commitment to recruiting and training New Zealand citizens and residents.

Be prepared

It will be important for employers to get a good understanding of their migrant workforce and to set realistic expectations with employees and other stakeholders as to the likelihood of securing further work visas. While there will be fewer visas to go around, with careful planning and good preparation, it will still be possible to secure work visas for migrant workers in the post-COVID world. Important considerations to ensure success include:

• ensuring the LMT component is conducted carefully, in line with policy requirements

• striking a balance with the information presented to INZ about the LMT to ensure it is comprehensive and compelling, without saying too much

• ensuring employer support documentation (advertisement, job description, offer of employment) is well-drafted, consistent and in line with policy criteria

• presenting good evidence at the outset to put the most robust case forward (it is much more difficult to address concerns once INZ has challenged an application, rather than investing time and effort into getting it right from the outset).

Rachael Mason is qualified in New Zealand, England and Wales, and has practised exclusively in the area of immigration law for several years.

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 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 high-quality technical immigration advice that is both pragmatic and commercial.