AEWV: Complexities and challenges to watch for

Readers will be aware of Immigration New Zealand’s (INZ’s) new Accredited Employer Work Visa (AEWV) system, which launched on 4 July 2022. Rachael Mason from Lane Neave outlines what to watch for.

The new AEWV system is designed to facilitate an ‘immigration rebalance’, preventing employers from sponsoring work visas for migrants who will earn below the minimum pay threshold of $27.76, except in certain limited circumstances.

It’s fair to say the new system is fraught with issues, not just in terms of the harsh reset regarding who can now secure a visa. Even for those roles paying above the minimum pay thresholds, the new system is complex, full of uncertainty and expensive.

No pathway to residence for most applicants

With the Skilled Migrant Category currently suspended, for most applicants applying for AEWVs, there is no clear pathway to residence. The only applicants with a longterm pathway to residency, enabling them to remain in New Zealand permanently, are those who meet the ‘Green List’ or Highly Paid category requirements.

The lack of a clear pathway to residence presents a significant challenge for employers who desperately need to recruit talent from offshore to fill vacant positions, including several well-paid, highly skilled roles. It is easy to understand how a migrant from the other side of the world might be reluctant to pack up their life and family and move to New Zealand without a clear pathway to securing the ability to remain here permanently.

Green List

The Green List comprises 85 roles identified as highly skilled, hard-to-fill occupations that are in high demand globally and in ongoing shortage in New Zealand.

The Green List has two components. First, a list of roles eligible for the fast track ‘Straight to Residence’ pathway and a second list eligible for a ‘Work to Residence’ pathway, meaning they can apply for residence after completing two years of employment in a Green List role.

At face value, these categories appear to be great news for employers looking to fill vacancies in these occupations. However, the Green List pathways are likely to be of limited use in many situations.

To qualify under the Green List categories, the applicant must be offered a job role that aligns with a Green List role and, importantly, must also meet the academic and other requirements of that occupation as specified. This firm has already seen numerous examples where employers have identified candidates internationally to fill Green List roles, who possess relevant academic qualifications or work experience, but do not possess the exact specified qualifications and experience required to satisfy the Green List criteria. An example might be a qualified professional, who possesses an appropriate degree, but where that degree is not from a recognised university, or it is not clear that the focus area of the degree meets the specified criteria.

In some instances, it may be possible to secure an International Qualification Assessment (IQA) to determine that the applicant’s overseas qualification is equivalent to the required New Zealand qualification. However, an IQA application is uncertain and likely to add significant time and cost to the process.

Despite the potential for an IQA, we expect there will still be many prospective applicants who will be unable to satisfy these Green List requirements, meaning they do not have a clear path to residence. Other than for the medical roles on the Green List, we expect this category will only be of limited use in offering a streamlined visa process and a long-term residence pathway to migrants.

Highly Paid

Those migrants who are paid at least twice the median wage will be eligible for a ‘Work to Residence’ pathway and may become eligible to apply for residence after having completed two years of employment in a highly paid role.

The median wage is $27.76 per hour, meaning this pathway will apply to applicants earning above $55.52 per hour, equivalent to a salary of around $115,500 per year, based on a 40-hour work week. It is important to note that this category applies to any highly paid role, regardless of whether it is a Green List role or not.

Confusing array of categories and sub-categories

Several different ‘sub-categories’ of AEWVs now exist, including the Green List and Highly Paid categories mentioned above. For example, the ‘exemption’ lists for the tourism and hospitality, construction and infrastructure and care sectors, with reduced minimum pay rates, pending sector agreements with certain industries, such as meat and fish processing, and then the catchall AEWV category for everyone else. Let’s just say: it’s confusing to navigate!

Depending on the sub-category, the ability for the migrant to remain here long term, requirement to stand down offshore after two years, ability to secure an open work visa for dependant partners and so on will all differ. All of these factors are important to employers, but more particularly to the migrant workers they are hoping to recruit into their businesses. Misunderstanding and confusion concerning the particular category a candidate may qualify for, the potential terms and conditions of their visa and whether or not a pathway to residence exists can be deal breakers. These issues can also lead to visa declines, costly delays and potential future ineligibility for the migrant worker.

The INZ website can be confusing, leading employers to believe they can secure a visa for a particular candidate, only to find out either that the candidate doesn’t qualify as understood or the particular process for successfully securing a positive outcome hasn’t been followed, meaning the process needs to be restarted at significant time and cost.

Complexities of the Job Check

The Job Check is a critical stage in the process and must be paid for by the employer, with early statistics from INZ making for poor reading. As at 3 August 2022, INZ had received around 3,800 Job Check applications and had approved less than half of them, falling well behind its published processing guidelines of 10 working days. What is clear is employers are unsure of the requirements to be met for a successful job check, and INZ is still on a journey of training its staff on the job, in combination, leading to high numbers of declined applications and processing delays.

The policy requirements for the Job Check are highly prescriptive in terms of both the advertising and employment agreement requirements, and several areas exist where an application can fail and be declined.

Presentation of labour market test information

Demonstrating that the labour market has been adequately tested and a suitable New Zealand citizen or resident was not able to be found can be a show-stopper. The content of the advertisement itself, the subsequent presentation of information about candidates who responded to the advertising, the selection process undertaken and why New Zealand citizens or residents who applied for the role were not suitable is all-important. Engaging with an expert to ensure the labour market testing has been completed, in line with the policy requirements, and the summarised results from that process are presented to INZ in a way that will support a visa being issued will often be critical.

Correlation between Job and Migrant checks is essential

A further significant issue with Job Checks is that they are intrinsically connected to the subsequent Migrant Check, so ensuring absolute alignment exists between the information provided in the two applications is essential. Although the applications must be lodged sequentially, in most cases, it will be advantageous for the Job and Migrant checks to be prepared simultaneously, to ensure consistency.

An example where inconsistency could lead to the Migrant Check being declined will be where the Job Check indicated a certain salary range, but the migrant candidate possesses slightly more experience than anticipated and so is able to negotiate a higher salary that sits outside the range indicated in the Job Check. In this situation, the Migrant Check will likely be declined, resulting in a brand new Job Check needing to be made before the Migrant Check can be redone.

Return of ANZSCO

The Australian and New Zealand Standard Classification of Occupations (ANZSCO) will play a significant role under the new system. For roles on the Green List or exempted roles, ANZSCO will be important in determining whether or not a given job is a listed role. The ANZSCO assessment can be complex. Numerous instances will occur where more than one potential ANZSCO occupation could be applied for, with one occupation being more favourable than another (eg, due to being on the Green List or being an occupation that qualifies for a reduced minimum pay rate).

By way of example, different ANZSCO classifications exist for chef, cook and fast food cook, with only fast food cook being listed as an occupation that qualifies for the reduced minimum hourly rate of $25 per hour, but with only a two-year visa and an offshore stand-down requirement for the migrant at completion of that visa period.

Understanding the potential impact of the ANZSCO classification on the visa process is a further complexity for HR managers and employers to grapple with.

Top tips

As with most things in life, preparation is vital. Here are tips for ensuring the best outcomes for your AEWV applications.

• Manage expectations of all stakeholders well: expect lengthy processing times and factor in time for hiccups along the way.

• Ensure advertisements are ‘immigration friendly’: for roles likely to attract migrant workers ensure advertising meets all the Job Check requirements.

• Prepare for inconsistency: INZ is learning the rules too, don’t always accept a declined decision without getting a second opinion.

• Think long term: certainty about their long-term ability to stay in New Zealand is allimportant for migrants. Even if they don’t qualify right now for a pathway to residence, there may be steps you can take now to lay the foundation for a future application.

• Get good advice and weigh costs carefully: although getting good advice can add to the costs, it is generally far better to invest that money at the outset and secure a streamlined approach. If things go wrong, it will often cost considerably more and take considerably longer than if an expert had been engaged from the start.

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.