Immigration Law Update

Immigration settings: the good and not so good

For employers of migrant workers, the past two years have been a roller coaster ride of border closures, constant changes to policy, and uncertainty. Rachael Mason from Lane Neave looks at the current system, exploring what’s working well and what isn’t, and potential policy changes for 2023.

The current immigration settings

It’s great to have the border open and the ability to now recruit international talent into New Zealand. The Accredited Employer Work Visa (AEWV) system is still bedding down, but we now have a good handle on how the system works.

Here I set out my ‘what’s hot’ and ‘what’s not’ view of the current immigration settings.

What’s positive

• Great news – the border is (finally) open and the ability to recruit international talent is available again.

• The new AEWV system offers fast-tracked residence for certain (Green List) roles, which helps in attracting eligible international talent.

• The sector agreements and limited-time exception rates for specific industries allow lower pay rates for particular roles in certain sectors, avoiding the immediate jump to the median rate of $27.76 per hour.

• In some instances, the government has revised the policy (in limited circumstances) in response to industry feedback (e.g., by relaxing the unrealistic qualification requirement for chefs). This serves as a reminder to have your say about what’s not working when the opportunity arises – it’s worth the effort!

• The reopening of the Skilled Migrant Category (SMC) helps to plug a much-needed gap because now more migrants will be able to see a residence pathway.

What’s not so positive

• The system is complex to navigate, resulting in uncertainty and a high decline rate.

• It brings significant cost increases to employers (who must bear the costs of accreditation and job checks) and employees (who face an increase in application fees of about 25 per cent).

• Lengthy processing timeframes make it very difficult to manage start dates and workflows.

• The effective exclusion of lowerpaid, lower-skilled roles from the work visa system is very challenging for many employers. The requirement to pay the median pay rate of $27.76 per hour means that, in many cases, it is not possible to secure a work visa for low- and mid-skilled roles, where pay rates have historically sat below this level.

• Even the sector agreements and tourism and hospitality exceptions (requiring pay rates of around $25 per hour) are still higher than the usual market rate for many roles. That means it is not realistic to pay those rates and so rules out the possibility of recruiting migrant workers.

• Despite the reopening of the SMC, significant numbers of migrants still have no residence pathway, making it very difficult to attract international talent to New Zealand (especially if potential migrants can see a residence pathway in competing countries such as Australia or Canada).

What’s coming up?

Several upcoming changes have been signalled for 2023 that employers and HR managers should be aware of when it comes to workforce planning and the ability to secure work visas for your organisation.

• The median wage used to determine immigration eligibility will increase to $29.66 per hour in February 2023, with flow-on effects to sector agreement rates and residence category rates.

• The tourism and hospitality exception rate will increase from $25 to $28.18 per hour in April 2023.

• Partner work rights will be largely removed. From 1 January 2023, the majority of AEWV holders’ partners will only be eligible for a visitor visa, unless they can qualify for an AEWV in their own right.

• Accreditation will be compulsory for all employers of migrants. Immigration New Zealand has signalled that from late 2023 all employers will need accreditation to be able to employ migrants – regardless of their visa category (including student visa holders, working holiday visa holders and other such categories).

• The SMC will undergo upskilling and redesign, with a higher points pass mark from early 2023 and redesign of the category in late 2023. Expect the bar to be raised, so that only mid- and high-skilled and paid migrants can secure residence under this category.

• 2023 is an election year – that impacts what policy changes get pushed through in the lead-up to the election and then postelection policy with either the same or a new government. Watch this space!

HR needs to be among those who engage in regular, multi-site discussions to appreciate existing inequities and how to facilitate contextsensitive progress.

Knowing what’s coming up and how the changes will impact your organisation opens up opportunities for you to take advantage of the current system to secure the best possible outcomes for you and your migrant workers. The indications above provide good reasons to bring forward visa applications for migrants in certain roles and industries. Often making an application early can be the difference between eligibility and ineligibility. It’s worth taking time now to explore opportunities to make the best use of the current and future settings to help set your immigration strategy.

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.