Brad SO Immigration Law Changes 2011

Practical Issues Concerning Visas: Interim Visas and Sponsorship under the Temporary Visa

Bradley So, Lawyer, Queen City Law

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OVERVIEW Interim Visas •

Purpose and Intent

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How it works?

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Practical Issues (Case Study)

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Comments

Sponsorship under Temporary Visa •

Work Visa under the Essential Skills - Employer’s Responsibilities - Factors that needs to be considered - Practical Issues (Case study)

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Temporary Visa under Partnership - Test - Available Visa - Sponsor’s eligibility - Practical Issues (Case study)

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Comments

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INTERIM VISAS

Background •

Before 7 February 2011

Purpose and Intent •

Avoid unlawful status

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Smooth the transitions between visa

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Efficient - Uncertainty of processing period - No fee or forms required - Automatically granted electronically

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INTERIM VISAS

How it works?

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Automatic (electronically issued)

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No right to apply (discretionary)

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Travel Conditions

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Overseas

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Expiry/Priority

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Does it apply to all types of temporary visas?

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INTERIM VISAS

Practical Issues •

Travel Conditions

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Priority

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Validity

Case Study Eric was on a temporary visa (visitors visa) with conditions allowing him to travel. This was whilst his LTBV reconsideration application was being determined. Eric booked flights to travel to China on the 9th of Feb 2011 and return on the 14th of Feb (day before his visitors visa expired). In the meantime, because Eric’s LTBV reconsideration was not going to be determined in time, INZ granted him an interim visa on the 8th of Feb (no travel conditions). Believing (rightfully so) that this visa would come into force on the 16th of Feb (day after visitors visa expiry) Eric continued with his travel plans. When he tried to return to NZ he was told that his current visa had expired and would not be allowed back into the country as he was on an interim visa at the time which expired on him being out of NZ.

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SPONSORSHIP (TEMPORARY VISA)

Work Visa under the Essential Skills •

Employer’s duties -

Advertising  Long Term Skill Shortage; and  Immediate Skill Shortage

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Employment Agreement Disclosure Compliance

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SPONSORSHIP (TEMPORARY VISA)

Work Visa under the Essential Skills •

Factors considered for approval -

Skill Level of the Position Employer’s Case Circumstance of the Industry

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SPONSORSHIP (TEMPORARY VISA)

Practical Issues •

Labour market test

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Exception to Policy

Case Study Ben is from UK and came to New Zealand on a one year working holiday scheme. During his time in New Zealand he worked as intern for a Locksmith company in Auckland. The Locksmith company is a small business and it was operated by a couple. Ben was brought in to assist given the increase in work load and in anticipation of further expanding their business. Ben’s employer was very impressed with his performance and even offered to support him with his intention to become a registered locksmith in NZ. However, he requires at least 3 years apprenticeship before he becomes a registered locksmith as the position requires someone who is of good character given the nature of the job. Ben’s working holiday visa is due to expire and he is seeking legal advice on whether he would be able to extend his work visa.

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SPONSORSHIP (TEMPORARY VISA) Work Visa under Partnership •

Partnership Test

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Misconceptions Case-by-case basis

Living together in a genuine and stable relationship

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Available temporary visas - Work Visa - Student Visa - Visitor Visa

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Sponsors Eligibility - Character - 5 years

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SPONSORSHIP (TEMPORARY VISA)

Practical Issues •

Eligibility

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Exception to Policy

Case Study Trang is from Vietnam and entered NZ in January 2009 on a student visa to study for a Diploma in Business. During her time in NZ, Trang met Vick who is a NZ resident. They began living together in May 2009 and were married in November 2009. Vick is the bread winner in the relationship as he works as a head chef in a well known hotel. Trang later applied for an open work visa under the graduate programme. Accordingly, she had a valid open work visa until January 2011. Trang was later employed in a small company as an assistant manager. The couple bought a house in May 2010 and was able to acquire mortgage finance because of their income. Trang would now like to extend her work visa and apply for a residence visa. However, Trang is aware that Vick acquired his residence through the partnership category in December 2007. Accordingly, Trang understands that Vick is not eligible to sponsor her until December 2012. Trang would now like to remain in NZ with her husband and would like to start a family in NZ. She would like to seek your professional advice.

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