Managing AEWV holders when the clock is ticking

Rachael Mason, Partner in the Immigration team at Lane Neave, discusses how employers can protect their most important asset, their people, in the face of the latest Employers of Accredited Employer Work Visa (AEWV) policy.

AEWV holders will be aware of the host of changes made to AEWV policy in April 2024. One of the most significant changes made was the introduction of the concept of the maximum continuous stay (MCS), which brings into play a definite ‘up or out’ approach to work visas.

The concept of MCS is fairly simple. AEWV holders need to qualify for residence before their MCS date kicks in or they will need to leave New Zealand and stand down offshore for a minimum of 12 months before they can apply for another AEWV. Exactly how long a migrant will have before their MCS kicks in will be determined based on the combination of pay rate and skill level of their role, with the basic premise being the more highly skilled and highly paid, the longer duration of MCS the migrant is afforded. MCS will range from two years through to five years, depending on these factors.

What is concerning is that many employers and migrant workers who are already here on AEWVs have not appreciated what the upshot of these changes means: the clock is ticking.

As the saying goes: forewarned is forearmed.

It is no longer possible to simply keep renewing work visas on repeat. A limited timeframe is now available within which AEWV holders need to qualify for residence or leave the country. The intent here is to clearly signal to employers and migrants alike that certain types of jobs and certain levels of remuneration are not going to be able to support a pathway to longer-term residence in New Zealand.

In particular, ANZSCO level 4 and level 5 roles are likely to have only a two- or three-year MCS attached to them, unless they are highly paid (at least $47.41 per hour or higher, being 1.5 times the Skilled Migrant Category median wage). The tourism, hospitality and retail sectors will likely be hit hard by these rules, where most roles are classified at ANZSCO level 4 and level 5, where the reality is that few of these roles attract pay rates at that level. Employers in these sectors may be hoping for some relief in 2025 by the pending replacement of the ANZSCO framework, but it is our view that this is unlikely to be the silver bullet we would like it to be.

A limited timeframe is now available within which AEWV holders need to qualify for residence or leave the country.

The rules to determine MCS are relatively complex. They require a good understanding of the ANZSCO framework and then the ability to interpret the multi-layered rules that are in effect and how they will apply to a particular situation. Employers also need to take care when relying on ANZSCO determinations from work visas issued before April 2024. Before this date, Immigration New Zealand was not properly assessing ANZSCO, so the classifications that were ‘approved’ are not able to be relied on. We have seen cases where Immigration New Zealand is now downgrading ANZSCO classifications it previously supported.

Similarly, the rules as to whether a job token can be reused are not always straightforward. Just because a job token looks available to be reused, it doesn’t necessarily mean that a particular migrant worker will be able to meet all the relevant criteria to successfully secure a further AEWV.

As employers of migrant workers, understanding how the MCS rules are likely to affect your employee population as a whole, as well as planning for individual cases, is essential. The earlier you can do this, the better. In some cases, there will be actions employers can take in upskilling a role or increasing pay rates (where feasible) that will be the difference between the migrant qualifying for a residence visa or not, with the flow-on effect of keeping (or not keeping) that employee.

Sometimes, the timing will be critical because a migrant may need to be in a role or earning at a certain level for a minimum period before they can apply for residence. Again, the clock is already ticking in these cases, so getting to grips with how the MCS rules will apply is essential.

In some cases, no options will be available to upskill the role or pay more. It simply ‘is what it is’. However, in all cases, the opportunity to plan for the time when that employee’s MCS kicks in, to communicate with the employee and to explore other possible visa options, if available (eg, partnership visas), will help with business continuity. As the saying goes: forewarned is forearmed.

The clock is already ticking […], so getting to grips with how the MCS rules will apply is essential.

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. 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 high-quality technical immigration advice that is both pragmatic and commercial. Go to hrnz.org.nz/pd to see upcoming courses.