Immigration Law Update: Ray of hope

In the past month, we have seen Immigration New Zealand (INZ) offer a reprieve for employers of migrant workers who have been struggling to manage their workforces because of the COVID-19 pandemic. Rachael Mason, Partner at Lane Neave, shares the impact of this government policy u-turn.

It has been a difficult time for employers of migrant workers with having to deal with a variety of challenges in the immigration system and managing migrants, with issues ranging from: having employees stuck offshore and unable to return; having employees separated from their family offshore; and the inability to recruit from offshore due to the closed border.

Significant change

On top of these challenges, INZ announced earlier in the year it would roll out the new Accredited Employer Work Visa (AEWV) system on 1 November, requiring all employers of sponsored migrant workers to apply for accreditation and a substantial overhaul of the main categories of work visas.

This looming significant change in policy, in conjunction with the change to the median rate of pay (an increase from $25.50 per hour to $27 per hour) and the short duration of work visas for those paid below median wage, meant many employers were concerned about the significant difficulty they would face in managing their migrant workforces. In particular, the changes would place substantial burdens on employers to invest both time and money into understanding the changes and their implications, becoming ‘accredited’ and supporting migrant worker employees in their visa applications.

It would not be overstating it to say that these proposed changes had the potential to create an extremely challenging set of circumstances.

Delay on the way

However, in a last-minute u-turn, the Minister of Immigration has announced major changes (or a delay of changes) that will provide welcome relief for employers, as follows:

• the introduction of the new AEWV regime has been delayed until mid-2022

• a substantially streamlined work visa application process for certain existing work visa holders

who are remaining in their current full-time employment (including the fact that no labour market test is required and police and medical certificates are not required if they have previously been provided)

• provision for Essential Skills work visas for durations of two years (if the pay rate is below median wage) or three years (if the pay rate is above median wage).

In many circumstances, in combination, these changes will make it simpler, cheaper and faster for a migrant worker’s work visa to be extended. This is a real win-win for both migrant workers and their employers in these uncertain and challenging times. The longer visa duration of two and three years (but particularly two years for those employees paid below median wage) also means employers and employees can have certainty that their positions are secure for a longer period. This position will be a relief not just in terms of stability but also in saving employers from needing to devote considerable time to what would otherwise have been one or more visa extensions (each requiring new labour market testing) during that same timeframe. There will still be occasions when labour market testing will be required, most often when the migrant worker is changing jobs, employer or job location.

It is regrettable these changes were announced so late when many employers had already devoted time and energy to planning for the changes. However, they will still be warmly welcomed by employers and migrant workers alike.

Questions outstanding

Several practical questions remain that these latest announcements give rise to at the time of writing. One of the main uncertainties at this stage is whether the ability for an employer to become accredited under the current system will be reactivated. That system was closed on 30 June in anticipation of the new regime going live on 1 November. Several accredited employers under the previous regime elected not to renew their accreditation status, given the new system was imminent.

To date, no announcement has been made about whether INZ will reopen this option for seeking accreditation status (either as a new accredited employer or to renew expiring accreditation certificates). For some migrants, this means they are effectively left with no path to residence. If their employer is not accredited (and currently cannot apply to become so) and the Skilled

Migrant Category is suspended, then there is no option but to wait and see what future residence policies may look like. This presents a challenge for employers who will want to retain key employees but cannot offer them long-term security at the moment. Accounts are growing of migrants faced with this uncertainty departing New Zealand for other countries where they can be assured of a secure pathway to residence.

This is just one of the challenges employers of migrant workers face. Although the u-turn on policy is positive, the rapidly changing immigration landscape and constant changes to policy continue to add complexity to managing migrant workers and ensuring organisations are meeting immigration compliance requirements.

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.