Tightrope Act of Complying with Immigration and Employment Law Obligations for Employers of Migrant Workers

by Heather Collins

1 February 2024

There has been a significant focus on migrant workers in New Zealand over the past year. As we have previously highlighted, a number of changes have come into force to better protect migrant workers, and prevent and deter exploitation by employers.

These legislative changes expose businesses employing migrant workers to more severe penalties for exploitation and may also result in more scrutiny of businesses who hire migrants.

For this reason, now more than ever is an ideal time for business owners to pause and re-examine their practices, to ensure that they are meeting both their employment and immigration obligations.

In our experience one of the biggest stumbling blocks for employers is which process to follow when a migrant worker no longer holds a visa. In this article we outline some general best-practice recommendations for employers to consider when it comes to improving practices and reducing risk of non-compliance.

What are an employer’s obligations when a migrant worker’s visa expires?

Once a migrant worker’s visa expires, unless they have been granted an interim visa with conditions which allow them to work for their employer, they cannot perform any duties for their employer, and they are generally not permitted to remain in New Zealand.

Employers of migrant workers must not only adhere to their obligations under the Immigration Act 2009 but also to the requirements of Employment Relations Act 2000 and other employment related legislation relevant to employment relationships.  If a migrant worker’s visa expires, employers have an obligation to ensure that the worker isn’t completing any duties, as the employer could then be sanctioned for allowing someone to work without a valid visa. There are steep penalties for hiring or allowing someone to work who is not entitled to.

Often in this scenario, the employer’s focus shifts to removing the unlawful employee from the business as quickly as possible.  However, where an employment agreement is in force, the migrant worker is still an employee. This means that while the migrant worker is not allowed to perform duties, they are still afforded all the same rights and protections as any other employee, irrespective of their visa status. 

The employer remains obligated to follow a ‘fair and reasonable’ process and act in good faith. In practice this means that an employer cannot simply terminate the migrant worker’s employment without due process simply because the migrant worker no longer holds a visa.  Doing so will likely result in the migrant having grounds to raise a personal grievance.

What is the best practice for an employer in this situation?

Unfortunately, there is no clear, established law on a particular process to be followed. But, in general, Pitt & Moore advises against automatically terminating a migrant worker’s employment or standing a migrant worker down without pay without their agreement when they would be otherwise willing and able to work, as this could be deemed an illegal suspension.

If there is nothing specified in an existing employment agreement about how to address this issue, the best practice is to reach an agreement with the migrant worker. This could be an agreement for the migrant worker to take the remainder of their annual leave, or if there is no leave available, to take unpaid leave until they are granted a valid work visa. If the migrant worker is unwilling to take unpaid leave, the employer could consider extending special paid leave for a finite period, to ensure the migrant worker is not disadvantaged.

Set up clear expectations in an employment agreement

For employers looking to review and update their existing employment agreements, it can be helpful to have clauses that:

  • Allow for unpaid or paid leave where a worker’s visa expires;
  • Clarify the worker’s obligation not to cause unnecessary delays when applying for a new work visa; and
  • Make it clear that employment cannot be held open  and identify a point at which an employer can validly end the employment.

These clauses should be tailored specifically to you as the employer and your worker. Specific legal advice should be sought when refreshing these documents.

Who is obligated to ensure migrant workers’ visas remain current?

A visa holder (migrant worker) is required to hold a valid visa at all times in New Zealand. They may only work under the conditions specified in their visa. Immigration New Zealand (INZ) recommends visa holders apply for another visa at least one month before their current visa’s expiry date.

Employers are not allowed to ‘provide immigration advice’ to migrant workers – for example, by advising migrants which would be the best visa for them to apply for, or what documents they may need for the application. But employers do have an obligation to try and ensure a worker’s visa is processed prior to its expiry, and to support an expedient process by providing any documents or paperwork promptly. In the 2021 decision of Restaurant Brands Ltd (RBL) and Dilshaad Gill, RBL was ordered to pay Mr Gill $25,000 on top of lost wages of $19,950 for unjustifiably dismissing him on the expiry of his work visa, and their failure to advise Mr Gill that they didn’t intend on supporting his visa application.  

Taking Restaurant Brands as an example and precedent, there is a risk of non-compliance if an employer fails to follow proper process, has created a delay for a migrant worker’s visa application or disadvantaged them financially.  In these situations, it becomes important the employer ensures their migrant worker’s employment is preserved where possible and employment processes meet the required standard

Get professional advice

The laws surrounding employment and immigration move quickly, and are designed to protect both employees and employers. We suggest that tailored advice is sought for your business in the event that a migrant worker’s visa is about to expire or has already expired.

Pitt & Moore provide expert advice on immigration, employment and visa rules and processes so please contact us for some expert guidance.

How Pitt & Moore can help

What sets us apart is that we are experts not only in employment law, but also in each step of the immigration process. This means that we can advise on all immigration/visa-related issues as well as employment related issues.

We offer an initial, free 15-minute consultation for immigration matters.

Immigration in 2024 – What is on the horizon for New Zealand? 

By Elly Fleming

19 January, 2024

A new year with a new Government at the helm inevitably means new developments in immigration policy. Over the course of 2023, Pitt & Moore highlighted these upcoming changes to immigration rules and what they mean for visa applicants, visa holders and New Zealand employers.  

As we head into 2024, we are yet to see a clear plan from the new Government on immigration. However, from what has already been announced, we can expect the following:  

Ongoing scrutiny of the Accredited Employer Work Visa (AEWV) system

In response to repeated instances of migrant exploitation that came to light throughout 2023, the AEWV has seen an overhaul. 

This has led to increased scrutiny on employers during the Employer Accreditation and Job Check application processes, and we expect this close examination of paperwork to continue in 2024. This will lead to longer processing times – employers should prepare to plan well ahead. 

Other changes to the AEWV include a longer maximum visa length (up to five years) and an increased maximum continuous stay period (also up to five years). Accredited Employers can support their employee to apply for their AEWV balance if they are paid at least the median wage, or they are employed as part of the care workforce sector agreement. We recommend that employers and migrant workers seek immigration advice and assistance with this process ahead of time.  

Changes to the median wage

Meanwhile, just before Christmas, it was announced that the median wage increase due in February will be paused. 

All current wage rates in place will remain, including: 
• NZ$29.66 per hour for migrants employed on most AEWVs 
• NZ$26.16 per hour for AEWV holders covered by the care workforce sector agreement 
• Specific wage rates for other sector agreements and roles with exemptions to the median wage. 
 
Employers and migrants should be aware that, at this stage, the median wage will still increase to NZ$31.61 in February 2024 for other visa categories that use it, such as the Skilled Migrant Category and Parent Category. Applications received before the increase will not be impacted.

It is anticipated that the new Government will make further changes to the median wage in 2024.  

Increased visa application fees

A review of visa application fee settings is expected, with new, higher fees anticipated to be applied from the middle of 2024.  

We recommend that employers and migrants plan ahead, and wherever possible submit their applications early in 2024 to avoid fee increases. It is anticipated that some visa categories will see a significant rise in application fees.  

The new Worker Protection (Migrant and Other Employees) Act is here 

On 6 January 2024, The Worker Protection (Migrant and Other Employees) Act, which amends the employer offences and penalties in the Immigration Act 2009, the Employment Relations Act 2000 and the Companies Act 1993, came into force. 

This means a raft of updates to the system of enforcement and penalties to deter migrant employee exploitation. Pitt & Moore wrote about the Act’s key provisions in more detail in an earlier article. 

In short, the Act represents a significant shift in workplace relations policy and will have major implications for employers and employees, including, but not limited to, the following: 

  • Accredited Employers have to notify Immigration New Zealand (INZ) of any changes to their compliance with INZ’s Accredited Employer rules within 10 working days of them knowing about them. INZ also expects to be notified no matter how minor the breach of immigration rules. By doing the right thing and self-reporting, Accredited Employers will be penalised even more from 6 January. Plus, there is a risk that accreditation status may not be renewed. 
  • Immigration Officers or Labour Inspectors will be able to name and shame, as well as fine, employers (irrespective of whether they hold accreditation status with INZ) for any breach in their migrant employee’s work-related visa conditions, even for small and accidental breaches. 
  • Immigration Officers will be able to more easily obtain and check employment-related documents as part of ongoing compliance efforts. 
  • Any violation of a person’s work visa at all could see employers fined up to $3,000 per employee and even higher court-imposed fines.  
  • Migrant employees will be able to ask Labour Inspectors to enforce their entitlement not just to minimum wages but to the wages their visa conditions stipulate. 

Many New Zealand employers would benefit from considering implementing better standards of governance and compliance risk oversight, as well as systems for management of operational risks related to immigration and employment law obligations. Pitt & Moore strongly advises employers to make sure they are ready for the Act now.  

Permanent resident visa applications are moving online 

From the end of January 2024, INZ is planning to move Permanent Resident Visa (PRV) applications into their Immigration Online system (instead of using paper-based applications).  

This change is coming ahead of INZ’s prediction of a significant increase in PRV applications in 2024, with a large number of 2021 Resident Visa applicants becoming eligible to apply. 

This shift to Immigration Online means the following applications will be able to be submitted electronically:  

  • Permanent Resident Visa  
  • Second or Subsequent Resident Visa  
  • Variation of Travel Conditions of a resident visa  

Applicants will then be able to check their application status online and no longer have to submit physical documents, such as passports, or call INZ for updates on the progress of applications. This is a welcome development. We hope to see more applications moving online during 2024.  

New visas to be introduced

A new five-year renewable Parent Visitor Visa has been promised to assist with reuniting families and bridge the gap between the current lottery-based Parent Resident Category and short-term Parent/Grandparent Visitor Visa. This can’t come fast enough. We have been inundated with enquiries from families about when the new visa will be available.  

A new Global Growth Tech Residence Visa for people with highly specialised skills who have worked at a top global tech company earning at least NZ$400,000 per annum also appears to be on the horizon. This visa will initially be capped at 250 successful applicants in the first year. We can’t predict how soon this visa category will be introduced or how great the demand for it will be.   

A Digital Nomad Visa is also on the horizon. This is a 12-month work visa to attract skilled, mobile people to come to New Zealand while working remotely for an overseas-based company, with the option to apply for a work or residence visa later if they choose to stay. Again, this visa will initially be capped at 250 successful applicants in the first year. From the limited information released so far, it’s not clear when this visa will be introduced and, in the current economic climate, coupled with the availability of Working Holidays Visas, it’s not clear how it will benefit New Zealand.  

New Zealand will continue to keep pace with Australia 

On 11 December 2023, the Australian Government released its Migration Strategy, which will overhaul the country’s migration programme over the next decade. We have summarised the strategy’s broad initiatives and what to expect from the Australian Government in a separate article.  

Many of the changes we have outlined in this article are already in place in Australia, with a few differences. For example, the Australian Government’s Migration Strategy includes a commitment to reforming the ‘points test’ for permanent skilled migration. In New Zealand, a new points system for the Skilled Migrant Category Resident Visa was introduced in October 2023.  

Both countries are also exploring further options for enforcing employer non-compliance with immigration obligations, with details to be announced later this year. 

In this climate, now more than ever, it is critical for all employers to ensure that they verify the work rights of all employees. This includes verifying that all employees have permission to work and, if they are a visa holder, are only working within any work conditions imposed on their visa. 

Talk to us

Pitt & Moore provide expert advice on immigration, employment and visa rules and processes, so please contact us for expert guidance on your specific circumstances. We offer an initial free 15-minute consultation for immigration matters. 

four people all on laptops, two men and two women, listen to person talking in a board meeting

Interim Visas: Tips and Traps Migrant Workers and Employers Need to Know! 

By Hannah McCarthy

8 January 2024

An Interim Visa allows a migrant worker on a temporary visa to be in New Zealand legally while they await the outcome of their further temporary visa application. 

Generally, Immigration New Zealand (INZ) issues Interim Visas automatically unless certain conditions apply, and from our experience this is where migrant workers and their employers can encounter complications and can get into trouble. 

Key points to bear in mind:

  • Unlike other visas, there is no right to apply for an Interim Visa under the Immigration Act. And, INZis not required to notify visa applicants or their employers that an Interim Visa won’t be granted. 
  • Interim Visas will not necessarily have the same visa conditions as the previous visa . In some instances, migrants may lose work rights while holding Interim Visas, meaning working would breach visa conditions and may affect future visa applications, and could mean deportation. Employers may also be fined and lose accreditation status and be stood down from hiring migrant workers.  
  • Interim Visas generally do not have travel conditions and will expire when a migrant leaves New Zealand (this may not apply to Skilled Migrant Category (SMC) Interim Visas, which have different rules. Read more here). For example, with a regular Interim Visa a migrant worker wanting to go home to visit family would need to wait for their new visa to be granted before they could return to New Zealand.  
  • Interim Visas generally last for a maximum of six months, so if a decision on the temporary application is not made in that time by INZ, the migrant worker can lose their right to work and will need expert advice and assistance to make sure they don’t become unlawful. 

Important rules about expiry of Interim Visas  

Interim Visas can expire: 

  • when INZ approves an application and grants a visa; or 
  • 21 days after a visa application has been declined or withdrawn; or 
  • as noted above, after six months if no decision has been made in this time. 

If a visa application is withdrawn or declined, the 21 days allow a migrant to leave New Zealand while remaining lawful or request INZ to reconsider the decision, if they want them to. 

Interim Visa holders with work rights can generally continue to work during the 21 days following a withdrawal or declined visa application. 

It’s also important to keep in mind that an Interim Visa will not automatically be granted by INZ if the migrant: 

  • has particular alerts or warnings related to their character in INZ’s system; 
  • has an active appeal; 
  • is liable for deportation; 
  • has an open case with the Deputy Chief Executive or the Minister of Immigration; 
  • has compliance action underway; 
  • is a student funded through the Ministry of Foreign Affairs and Trade or the New Zealand Aid Programme; or  
  • holds a visa that has been granted because the Immigration and Protection Tribunal has ordered the grant of the visa under either section 210 or 216 of the Immigration Act 2009. 

In any of the above cases, the decision about whether a migrant worker will be granted an Interim Visa is made by an Immigration Officer. For this reason, it’s vital for employers and migrants to closely monitor visa expiry dates and get expert advice as soon as possible.  

Talk to us  

Our team at Pitt & Moore can help you navigate all aspects of visa applications, advising on any issues that may prevent an Interim Visa from being issued and assisting with last-minute temporary visa applications.   

man holding luggage photo

Skilled Migrant Category Interim Visa: Pitfalls and Restrictions  

By Hannah McCarthy

5 January 2024

Skilled Migrant Category Interim (SMC) Visas may be right for some, but they are not suitable for every migrant worker waiting for their SMC Resident Visa.

This interim SMC visa may be issued for up to 24 months while a migrant’s resident visa application is being considered. However, as explained in this article an SMC Interim Visa’s range of restrictions and pitfalls has drawbacks for some people.  

To be eligible for an SMC Interim Visa, a migrant: 

  • must be in New Zealand, and  
  • must hold a current temporary visa that has not yet expired, and 
  • must apply for an SMC Resident Visa under the new SR3 instructions, and 
  • has not been granted a 2021 Interim Visa, and 
  • has not applied for another temporary visa. 

An SMC Interim Visa is not assured

An SMC Interim Visa cannot be applied for, nor is an applicant guaranteed to receive one. Granted at the absolute discretion of Immigration New Zealand (INZ), there is also no right of appeal against a decision not to grant an SMC Interim Visa.  

From our experience many migrants assume that they receive an interim visa and don’t consider their options. This is where migrants can encounter complications and can get into trouble. Migrants need to be cautious if they are relying on receiving an SMC Interim Visa as it may not be granted if, the migrant: 

  • has particular alerts or warnings related to their character in INZ’s system; 
  • has an active appeal; 
  • is liable for deportation; 
  • has an open case with the Deputy Secretary of INZ or the Minister of Immigration; or 
  • holds a visa that has been granted because the Immigration and Protection Tribunal has ordered the grant of the visa under either section 210 or 216 of the Immigration Act. 

An SMC Interim Visa expiry date is outcome dependent  

If granted, an SMC Interim Visa is valid for up to 24 months and has multiple entry travel conditions. This means that, generally, migrants can travel outside New Zealand and return while holding an SMC Interim Visa. However, since an SMC Interim Visa’s expiry date depends on the outcome of an SMC application, if a migrant is outside of New Zealand when their SMC application is refused, they would have a limited time to return to New Zealand. This can create unforeseen difficulties for many migrants.  

It’s important for migrants to understand that an SMC Interim Visa will expire or be cancelled: 

  • on the date the SMC Resident Visa is granted if INZ approves the visa within 24 months; or 
  • two months after the date INZ declines the application or if the SMC application is withdrawn; or 
  • after 24 months if no decision has been made from the start date of an interim visa. 

Restrictions of an SMC Interim Visa  

A holder of an SMC Interim Visa is unable to apply for a visa of any other class or type. If an SMC Resident Visa application is declined or withdrawn, SMC Interim Visa holders will either need to leave New Zealand before their interim visa expires or risk becoming unlawful.  

Further restrictions that can create significant problems for migrants include: 

  • inability to support a partner’s or dependent child’s visa application; 
  • limited ability to change most of the conditions of an SMC Interim Visa. 

Consider your options carefully before accepting an SMC Interim Visa

We recommend that migrants carefully consider all their options before they go down the path of holding an SMC Interim Visa.  

Pitt & Moore can assist with SMC Resident Visa applications as well as advise on risks associated with an SMC Interim Visa in your circumstance. If you have any questions about the SMC Interim Visa do not hesitate to contact us on 03 548 8349.  

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Accredited Employer Work Visa Changes

By Lavinia Askin

7 December 2023

On 27 November 2023, Immigration New Zealand (INZ) increased the maximum continuous stay and visa length for the Accredited Employer Work Visa (AEWV). In this article we provide an overview of what this means for migrant workers and employers.

Maximum continuous stay

The maximum continuous stay is the total time a person can hold AEWV(s) before they must spend time outside of New Zealand to be eligible for a further AEWV.

The maximum continuous stay has been extended to five years for migrant workers paid at or above the median wage, or the level 4 pay rate for the care workforce sector. This is counted from when the first AEWV was issued, or when the worker arrived in New Zealand (if their AEWV was granted while they were offshore).

When the maximum continuous stay is reached, generally AEWV holders must leave New Zealand for a specific duration period of time – usually 12 months.  Once the individuals have spent this required time outside New Zealand, their clock restarts and they will become eligible to apply for a further AEWV.  

It is advisable that migrant workers (and their employers) plan ahead and seek immigration advice on their ability to remain in New Zealand.  This is because some individuals may be eligible for an alternative work or resident visa, and may not need to depart New Zealand and leave their employment.

Longer visa length

INZ has also increased the maximum visa length of AEWVs to five years for people earning at least the median wage.  In addition, it has increased the maximum visa length of AEWVs to three years for individuals in the care workforce sector paid the level 3 and 4 pay rates. This change will benefit employers in the care workforce sector who are experiencing significant staff shortages.

Current AEWVs will not automatically extend to the longer visa length. Those with an existing AEWV may be eligible to apply for another AEWV to obtain the visa balance for the maximum visa length. 

Accredited Employers can support their employee to apply for their AEWV balance if they are paid at least the median wage or they are employed as part of the care workforce sector agreement. In certain circumstances, employers will not need to complete another Job Check for the role. We recommend that employers seek immigration advice and assistance with this process ahead of time.

When can people apply for another AEWV?

INZ expects a significant number of people to be eligible for AEWV renewals for the balance of five years, and have advised that it will generally only start processing balance applications when an individual’s current AEWV expiry date is within the next nine months. The visa applications for partners and dependent children will also be on hold until the AEWV application is decided.

In the event that a migrant worker’s current AEWV expires before their balance application is completed, they are likely to be issued with an interim visa allowing them to remain in New Zealand and continue working in their current role for up to six months.

These are significant changes

Pitt & Moore is here to help if you need advice or assistance understanding these changes to the AEWV. Please do not hesitate to reach out to our immigration team.

Calling all employers – changes are coming, are you ready?

By Elly Fleming

17 November 2023

Migrant exploitation fixes to impact all employers of migrants

Media coverage over the last year or so about migrant exploitation has the country concerned. And rightly so. How some migrant employees have been treated by scammers is nothing short of inhumane.

This bad behaviour by a few has seen regulatory consequences for all. There has been an increase in workplace investigations with joint compliance efforts by the Labour Inspectorate and Immigration New Zealand (INZ). There are also new powers for enforcement agencies to access employment documents, the establishment of a whistleblower hotline, and legislation that will impact every employer of migrant employees, even the good employers who might make a genuine minor mistake.

Coming into force on 6 January 2024 is The Worker Protection (Migrant and Other Employees) Act, which amends the employer offences and penalties in the Immigration Act 2009, the Employment Relations Act 2000 and the Companies Act 1993. 

At a high level, the Act establishes a system of offences and penalties, with the primary aim of deterring employers (irrespective of their accreditation status with INZ) from exploiting migrant employees. Among its key provisions, is the creation of new infringement offence for lower-level breaches of employing a person in a manner inconsistent with the terms of their work visa. This carries both infringement fees of up to $3,000 per employee (which immigration Officers or Labour Inspectors can issue), and the possibility of larger court-imposed fines. There will also be ‘strict liability’ in place, so the employer will be guilty of the breach regardless of whether they can show a genuine mistake was made or where they made fair attempts to be compliant.

Other important changes that all employers need to be aware of include facilitating information-sharing between Immigration Officers and Labour Inspectors and giving Immigration Officers powers to require the provision of employment records, for example their wage and time records.

Under this legislation, infringement notices identifying employers can be published. This naming and shaming of employers creates a further deterrent  in addition to the existing stand down list for non-compliant employers maintained by MBIE.

Lastly, under this legislation the High Court has been granted the authority to disqualify individuals who have been convicted of exploiting employees and temporary workers under the Immigration Act 2009, or individuals involved in trafficking in persons offenses under the Crimes Act 1961, from serving as directors of New Zealand companies.

In summary, these changes combined represents a significant shift in workplace relations policy and will have major implications for employers and employees, including the following:

  • Immigration Officers or Labour Inspectors will be able to name and shame as well as fine employers (irrespective of whether they hold accreditation status with INZ) for any breach in their migrant employee’s work-related visa conditions, even for small and accidental breaches;
  • Immigration Officers will be able to more easily obtain and check employment related documents as part of ongoing compliance efforts;
  • migrant employees will be able to ask Labour Inspectors to enforce their entitlement not just to minimum wages but to the wages their visa conditions stipulate.

With respect to accredited employers, there are even greater implications. Accredited employers have an obligation to notify INZ of any changes to their compliance with INZ’s accredited employer rules within 10 working days of this being identified. INZ expect that accredited employers notify them even of minor breaches (for example where a migrant employee works in a different location to the one specified in their visa conditions or where a migrant employee works for a brief period while they did not have a right to work). Accordingly, by doing the right thing and self-reporting, accredited employers will be penalised even more from 6 January. Plus, there is a risk that their accreditation status may not be renewed.

It is critical for employers to be aware of these changes and get their processes right.

Moving in the same direction as Australia

The changes coming next year for us, are already in place in Australia, with a few differences. Their experiences give us foresight, which is useful for our preparedness.

When coming into power, the current Australian Government found that the enforcement of employer breaches was lacking, so they have recently increased the resourcing of enforcement agencies.

How enforcement of the new rules will work in New Zealand and how it will be resourced is uncertain, but $50 million has been ringfenced for investigations into workplace non-compliance allegations.

Other changes happening over the next few months

Accredited Employer Work Visa (AEWV) – longer processing

Recent adjustments to the AEWV assessment approach means INZ is asking employers for additional information confirming:

1. job vacancies are current,
2. vacancies are genuine and
3. whether employers can support the migrants they plan to hire.

These requests have caused an increase in processing times for the Employer Accreditation and Job Check phases. Because of this, Job Check applications are currently taking approximately eight weeks to be processed. Employers need to plan ahead and be prepared for longer processing times.

Labour hire (triangular) employment threshold change from 15% to 35%

From 27 November 2023, there are significant changes for accredited employers who are labour hire employment firms with triangular employment arrangements, ie. where they assign their migrant employee to work with another business in specific construction occupations.

At least 35% of these firms’ labour hire workforce will need to be made up of New Zealand citizens and residents in full-time employment – an increase from 15%. This threshold is being assessed at both the Accreditation and Job Check stages. As an already accredited employer, if you don’t meet the new threshold but continued to meet the 15% threshold, you won’t lose your accreditation, although, INZ will not approve a further Job Check until you meet the 35%.

New median wage to apply from February 2024

A new median hourly wage of $31.61 will be adopted in February 2024 (date tbc). This means that most wage thresholds indexed to the median wage will be updated to reflect this, including the AEWV, the Skilled Migrant Category, and some occupations covered by Sector Agreements and the Green List.

Now is the time to get ready

Many New Zealand employers would benefit from considering implementing better standards of governance and compliance risk oversight, as well as systems for management of operational risks related to immigration and employment. The consequences of either immigration or employment non-compliance can be significant.

In particular, with The Worker Protection (Migrant and Other Employees) Act changes coming into play early in the new year, we strongly advise that employers make sure they are ready now, before we get into the busy holiday period.

With the new 0800 number enabling allegations of non-compliance to be reported easily, and an uptake in people going straight to the media, before having a conversation with their employer, employers’ understanding and implementation of best practice is crucial. Please contact us for assistance in getting ready for these significant changes.

Pitt & Moore provide expert advice on immigration, employment and visa rules and processes so please contact us for some expert guidance.

Disclaimer: The information contained in this publication is of a general nature and is not intended as legal advice. It is important that you seek legal advice that is specific to your circumstances.


Points, please: What the New Skilled Migrant Category Resident Visa means to you  

By Elly Fleming

26 October 2023

As we wait for the new Government to agree terms and then for a new Immigration Minister to be appointed, what might we expect for the Skilled Migrant Category (SMC) Resident Visa?  

Overall, National wants to increase immigration, simplify the process for skilled migrants and make the visa system more accessible. The Act Party is likely to support this in principle, as they believe the complexity of the current system has been detrimental to the country. 

Specifically for the healthcare sector National have said they want to offer qualified overseas nurses and midwives an automatic six-month temporary visa to enter NZ without a job offer, allowing them to seek work.  

For agriculture, National proposes to change the rules for agricultural workers in the Accredited Employer Work Visa scheme by removing median wage requirements and introducing a path to residency. 

The rub to all of this could be New Zealand First. Rather than more, they want to see a reduction in immigration, and they want employers to pay a living wage to migrant workers. 

For now though, things shouldn’t stand still, so we are already working with our clients through the new six-point system as part of the revamped Skilled Migrant Category (SMC) Resident Visa that opened earlier this month.  

The new system intends to expedite the residency process for people who have skills that contribute to New Zealand’s economic growth, and provide them with more certainty about their future.  

We described the new points system when it was first announced earlier this year. To recap, applicants who want to apply for the SMC must get six points to be granted residence. Having one of the following will grant them between three and six points: 

  • Occupational registration (where an occupation has a regulated registration, licensing, or certification scheme in NZ and full registration requires at least two years of formal training or experience) 
  • A bachelor’s degree or higher-level qualification, or 
  • A skilled job earning at least 1.5 times the median wage in New Zealand or higher. 

Applicants can also claim one point for each year of work in New Zealand in a qualified role (up to a maximum of three points). The more skill points an applicant can claim, the shorter the amount of time they will need to have worked in New Zealand in skilled employment before they can apply for residency under the SMC. 

With the latest increase in median wage set to come into effect in February 2024, it will be harder for migrants to qualify for SMC.  We recommend applicants who currently meet the salary threshold for SMC get advice without delay, as to not miss their opportunity.  

These are significant changes to the SMC’s old 180-point system. Here’s what they could mean for you. 

Pitt & Moore provide expert advice on immigration, employment and visa rules and processes so please contact us for some expert guidance. 

Impacts on accredited employers 

For an employee to be eligible for the SMC, they will first need a skilled job offer in New Zealand from an accredited employer, and will need to be able to claim points based on their employment conditions, as summarised above. 

This means most applicants will need to spend time working in New Zealand to have the required six points.  

Other requirements, such as for age, English language ability, health and character, have not changed. Applicants may also include their partner and dependent children in their application. 

This new six-point system is likely to exclude some people from the SMC who otherwise would have been eligible, such as people with jobs where most training is done ‘on-the-job’ or where occupational registration is not an option.  

Post-COVID growth opportunities 

Many sectors are still trying to return to their pre-COVID workforce levels before borders closed.  

Others are trying to sustain business growth gained during the pandemic (for example technology companies), or realise the opportunities for growth presented post-pandemic. 

Either way, these businesses need skilled migrants.  

Pitt & Moore is aware that if the roles a business is able to support do not have a pathway to residence, it may be difficult to attract sufficiently skilled migrants, and we are keeping an eye on how this new six-point system performs. 

Interim visas for applicants 

A new interim visa for the Skilled Migrant Category Resident Visa was also implemented on 9 October. This is a welcome change that will reduce costs for migrants and their employers. 

This new visa removes the requirement for SMC applicants to renew their temporary visa while awaiting the outcome of their application. The interim visa has multiple entry travel conditions, allowing visa holders to leave and return on the same visa while it is valid.  

For a $210 cost, applicants can also apply to vary some of the conditions of their interim visa based on their individual circumstances.  

Other changes 

A wider update to the List of Qualifications Exempt from Assessment (LQEA) was made ahead of the Skilled Migrant Category Resident Visa opening. The LQEA is a publicly available list which sets out the comparable New Zealand Qualifications and Credentials Framework (NZQCF) level for specified overseas qualifications.  

Further reviews are happening in phases to ensure it is compatible with the SMC Resident Visa. More information about the scope of these changes can be found on the INZ website. 

Applying for SMC residency? Contact us for professional advice. 

As the Skilled Migrant Category Resident Visa’s six-point system is so new, we recommend that tailored legal advice is sought prior to submitting an SMC application to ensure it has the best chance of success. Whether you are an employer or a migrant worker, get in touch with Pitt & Moore’s specialist employment and immigration team: 03 548 8349. We offer an initial, free 15-minute consultation for immigration matters. 


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Changes confirmed to the Skilled Migrant Category, Highly Paid Residence Visa and Accredited Employer Work Visa

By Heather Collins

21 June 2023

Today the government announced major changes to the Skilled Migrant Category, confirming a new 6-point system commencing in October this year.   In addition the Highly Paid Resident Visa will be removed and an extension to the Accredited Employer Work Visa will be implemented.

*** Shortly after publication of this article INZ released Immigration Instructions containing further details regarding these changes.  Pitt & Moore will be providing further commentary on this topic shortly. ***

Skilled Migrant Category

From 9 October 2023 the current SMC points system will be replaced with a simplified system focused on occupational registration, recognised qualifications or income.  The aim is to provide highly skilled people with a faster route to residence and clarify the route for migrant workers and their families in New Zealand. The new points system is intended to complement the Green List which has a more restricted route to residence based on specific occupations which are in high demand.  However it also appears that some migrants currently eligible under the current SMC scheme may be excluded under the new points system.

It is unclear from the announcement whether the proposal is being implemented unchanged, and we will need to wait for further details to emerge.  However based on the information provided today the original key concept of the 6 point structure is going ahead.

The takeaways from today’s announcement are:

  • Applicants for the SMC will need to have a job or job offer in New Zealand with an accredited employer which is for at least 30 hours per week and is either permanent employment or for a fixed term of employment for at least 12 months.  
  • Applicants will need to have a wage or salary which equates to at least the median wage, unless they are employed in roles which are ANZSCO level 4 or 5 in which case they must be paid at least 1.5 times the median wage.
  • Applicants must be able to claim 6 points to be eligible which can be made up as follows:
  • 3-6 skill points based on one of the three “skill categories” being either New Zealand occupational registration (which requires a minimum of 2 years training to gain registration) , recognised qualifications (Bachelor’s Degree or higher)  or income (earning at least 1.5 times the median wage) . Applicants can choose the skill category which offers them the most points, but cannot combine points from multiple skill categories to acquire more points.
  • 1 point per year of work in New Zealand in a skilled job up to a maximum of 3 points.
  • The more skill points the applicant can claim, the shorter the amount of time they will need to have worked in New Zealand in skilled employment before they can apply for SMC Residence.
  • If an applicant wants to use skilled work experience which they gained in New Zealand to claim points they will also need to have met the wage threshold throughout the skilled work experience period.   For example, if they are claiming points for being paid twice the median wage they will need to have earnt that wage during the whole period of the skilled work experience they are claiming.
  • Applicants will need to meet the same age, English language, health and character requirements as under the current scheme.
  • Applicants can include their partner and dependent children in the application and they must also meet English language requirements.
  • There is no cap on the number of eligible people who can be granted SMC residence

As we noted at the time of the proposal, the new points system is likely to exclude some people from residence who are currently eligible. Those in occupations where much of the training is “on the job”, and where there isn’t registration, are likely to have difficulties gaining 6 points.

Application Processing times

The government envisions that processing of SMC Resident Applications will be quicker, with a turnaround time of 6 – 8 weeks.  This is a welcome relief given previous  delays in processing  SMC Residence Visa Applications.  However it is currently unclear how the process will be streamlined.

Skilled Migrant Category Interim Visa

If an applicant applies for a new SMC Resident Visa and their current temporary visa expires while their SMC Resident application is still being processed, they we be granted a Skilled Migrant Category Interim Visa.  The SMC Interim Visa will expire at the earliest of the following times:

  • 24 months after the start date
  • The date the SMC residence Application is approved
  • If the SMC Residence Application is declined or withdrawn, 2 months after the decision is made on the application or the application is withdrawn.

There are significant drawbacks to being on an interim visa and therefore immigration advice is highly recommended before the applicant’s temporary visa expires.

Removal of the Highly Paid Residence Visa

Notably absent from the beehive announcement was INZ’s confirmation today that the Highly Paid Residence Visa which was set to come into force on 29 September 2023 will no longer go ahead.  Instead applicants are encouraged to apply for SMC Residence on the basis that they can claim points for their income.

Extension to the Accredited Employer Work Visa

Following feedback from businesses the government has also announced that from November 2023 there will be an extension to the maximum duration of an Accredited Employer Work Visa from three years to five years.  The purpose of this change is to align with the introduction of a five year maximum continuous stay for AEWV holders who do not have a pathway to residence.

We will need to wait for further details to be released to find out whether the new 5 year limit will apply to migrants who are already in New Zealand on their Accredited Employer Work Visa.

In Summary

Based on the information released today it appears that significant changes  to the SMC category may exclude some applicants from residence, and there are still many unknowns while we await the release of the new Immigration Instructions . 

Get Professional Advice

For those who intend to submit a SMC residence application under the new scheme we suggest that this is a space to watch closely as more details are released.  We also recommend that tailored legal advice is sought prior to submitting an SMC application to ensure it has the best chance of success. 

Talk to Us

Pitt and Moore Lawyers offer an initial free 15 minute consultation for immigration matters.  Contact us today to discuss your pathway to residence.


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Immigration News Round-Up

By Lavinia Askin

6 June 2023

The past couple of weeks have seen a raft of immigration related announcements and developments.  In this article we highlight the key developments to keep you updated.

Accredited Employer search tool now available

A new Accredited Employer search tool is now available on the Immigration New Zealand website which aims to assist migrants with checking whether their current or prospective employer is accredited.

Migrants will be able to search the name or New Zealand Business Number (NZBN) of the employer they are interested in working for and see the company name, trading name, NZBN and accreditation expiry date.

However, it is important to note that it will be possible for accredited employers to ask Immigration New Zealand for their business details to be removed from the online list.  Thus overtime, the reliability of the search results may be questionable.   

If you are in doubt as to the accreditation status of a particular employer it is advisable to seek expert advice before commencing work.

Click here to Access the Accredited Employer Search Tool.

Parent Resident Visa Expression of Interest Forms

The Parent Category Resident Visa Expression of Interest (EOI) process has become more accessible with the introduction of a new online form on the Immigration New Zealand’s website. Click here to access the new form.

While paper-based EOI form remains as an option for those who prefer it, the online form streamlines the application process, making it more convenient for applicants.

The fee to submit an EOI into the Parent Category Resident Visa Ballot is $430.

Additional residence pathways new to the Green List

Health sector

32 additional health sector roles have now been added to the Green List. All Green List health roles have now moved to the Straight to Residence pathway.

These roles span the wider health sector, from enrolled nurses, nurse practitioners, dentists and dental technicians, MRI scanning technologists, paramedics, optometrists and pharmacists to counselling.

Eligible applicants can now submit their applications.

Transport sector

All roles covered by the Transport sector agreement will be able to apply for residence from 29 September 2023 if they have completed the 2 years of work requirement.

These are the approved transport roles:

  • bus driver
  • truck driver
  • aircraft refueller
  • furniture removalist
  • tanker driver
  • tow truck driver
  • ship’s master
  • deck hand.

Talk to us

Should you have any inquiries regarding these recent developments, do not hesitate to contact our experienced team of immigration lawyers.

Asking Employees to Work Extra Hours – a Common Fishhook for Employers

By Heather Collins

6 June 2023

It’s not uncommon for employers to need their staff to work extra hours from time to time. However care should be taken so that directions to work additional hours are compliant with the Employment Relations Act (the “Act”), and recorded correctly in the employment agreement. In short employers need to make sure that a correct “availability provision” is included in the employment agreement if the Act requires it in the circumstances.

You will recall that “zero hours contracts” were made illegal some time ago. These were agreements which required employees to be available for all work offered, without compensation for being available, and without any guaranteed hours of work. As an alternative to zero hours contracts availability provisions were introduced to allow some flexibility to request employees work additional hours, while also providing employees with increased protection.

Deciding on when an availability provision needs to be included in an employment agreement still manages to trip up employers. It’s important to understand when an availability provision is required, and if so what the clause should contain.

The key things to note are:

  • An availability provision needs to be included in an employment agreement if an employer can offer work at their discretion and the employee is required to perform that work if requested.

  • The employer must have genuine reasons based on reasonable grounds for including the availability provision.

  • An availability provision must set out:

a) what specific hours the employee is required to be available for work (in addition to the specified guaranteed hours of work); and

b) reasonable compensation for the hours that the employee must be available to accept work. Where the employee is on a salary it can be agreed in the employment agreement that the salary includes compensation (provided that this is reasonable in the circumstances).

  • When considering reasonable compensation the employer should take into account the number of hours the employee needs to be available, the proportion of those hours in relation to the employees guaranteed hours of work, any restrictions on the employee during the hours they need to be available and the employees pay under the employment agreement.

  • A deficient availability provision will not be enforceable, meaning that the employee will not be required to perform the additional hours of work.

  • If an employment agreement allows the employee to turn down an offer of work in addition to their guaranteed hours of work, an availability provision is not required.

How Pitt & Moore can help

At Pitt & Moore Lawyers our employment team can prepare and review Employment Agreements and Employment Policies, as well as review your current employment practices as part of an employment health check-up for your business.

What sets us apart is that each of our Employment Lawyers are also immigration experts. This means that we can advise on all employment issues affecting your business, including issues connected to hiring migrant workers.

Talk to us

If you would like advice on this topic or any other employment related issue please contact our Employment Team today.

My Visa Application Was Refused: What can I do now?

By Elly Fleming

25 May 2023

Whether you applied for a visa to remain in, or travel to, New Zealand or Australia, when you receive a negative decision from Immigration New Zealand or the Australian Department of Home Affairs, don’t panic all may not be lost!

It really pays to find out what the available options are and to carefully consider these options.

What options are available after visa refusal?

Generally, when someone is refused a visa they may have one or more of the following options:

Lodge a fresh visa application with resolved concerns – addressing the areas that either the New Zealand or Australian immigration authorities based the refusal on. You may need to wait for your circumstances to substantially change enough to make a stronger visa application.

Sometimes, applicants attempt to submit a new visa application at a different location in the belief that this would make it successful. This is never guaranteed, particularly since immigration authorities have access to the same online systems, with alerts and intelligence sharing capabilities.

We don’t recommend rushing into a fresh visa application, small investment in advice on how you can present a stronger application could improve your chances of success and give you a peace of mind.

Seek reconsideration of your visa application – in some instances, applicants may be eligible for the immigration authorities to reconsider their visa application. Usually, you would need to satisfy a number of conditions to be able to take up this option, including submitting your request for reconsideration within a specific time limit.

It is important to seek informed advice as soon as possible, particularly regarding your immigration status and prospects of success.

Lodge a complaint – if you believe that the immigration authorities failed to follow their own processes or that there was improper conduct on the part of an immigration official assessing your application, a complaint can be submitted. Please note if you are not satisfied with a decision made but can’t point to any process failures it’s unlikely that your complaint will be investigated.

Complaints can be submitted online to either Immigration New Zealand or the Australian Department of Home Affairs.

Submit an appeal to the Immigration & Protection Tribunal (related to New Zealand visas)

In certain instances, it may be possible to lodge an appeal with the Immigration & Protection Tribunal. There are several different types of appeals. Each has its own form to fill out and usually a fee is payable.

You can appeal each Immigration New Zealand decision only once. The Tribunal cannot accept an appeal if you have no right of appeal. Time is critical, as there is a set period within which appeals must be lodged.

It is important to seek professional advice and assistance as soon as possible, particularly regarding your right to appeal and prospects of success.

Submit an appeal to the Administrative Appeal Tribunal (related to Australian visas)

The Australian Administrative Appeal Tribunal (AAT) reviews a range of migration and refugee visa decisions made by the Minister for Immigration, or by immigration officers of the Department of Home Affairs.

If you think that you received a decision that is wrong, you may be able to apply to the AAT for review of that decision.

Whenever a decision is made that is reviewable by the AAT, the Department of Home Affairs is required by law to advise the persons involved of their review rights. This includes setting out who can apply for review, where an application can be made and the time limit within which the application must be made.

It is imperative that when you receive a decision from the Department of Home Affairs that you consider the information about your review rights carefully and consult a professional as soon as possible. Generally, the AAT does not have discretion to accept an appeal that is lodged outside the relevant time limit or by a person who is not entitled to apply for review.

What is the best option in my circumstances?

The most suitable option will depend on your personal circumstances, including your current visa status; whether you are onshore or offshore; whether you still have time remaining on your current visa or whether you are unlawful; and of course, on your resources, whether you can afford to pay for an appeal to the Tribunal or for a new visa application.

Talk to us

For further advice on most suitable options in your personal circumstances, talk to Elly Fleming, Associate, Pitt & Moore Lawyers.

Partner Work Visas – New rules from May 2023

By Hannah-Jean McCarthy

24 May 2023

Changes to conditions for the Partner of a Worker Work Visa (‘PWWV’) have now been confirmed and are to be implemented from 31 May 2023. The threshold for partners of workers who wish to work in New Zealand has increased, as the Government pushes for employers to hire New Zealanders first.  These changes will have a significant impact on partners of workers on Accredited Employer Work Visas (‘AEWV’) and Essential Skills Work Visas (‘ESWV’).

Once these changes are introduced, partners of workers applying for a PWWV may have new conditions that require:

  • They can only be employed in New Zealand by an Accredited Employer;
  • They can work in roles covered by capped sector agreements in limited circumstances, for example Meat Processing and  Seafood, including onshore processing and sea-based fishing crew;
  • If working in a role not covered by a sector agreement, they must be paid at least the median wage in effect at the time they receive their visa, or when they receive a job offer, whichever is later. This is currently NZD $29.66.
  • If working in a role covered by an uncapped sector agreement, they must be paid at least the relevant wage threshold in place. This includes roles within the care workforce, tourism and hospitality, construction and infrastructure, seasonal snow and adventure tourism, and transport. They will not be subject to a stand-down period.

This change will mean that some AEWV holders who are working in an industry covered by a sector agreement and paid below the median wage, will not be eligible to support a PWWV. Similarly, ESWV holders paid below the median wage will also not be eligible to support a PWWV.

There are some exceptions for partners of highly paid workers or workers in particular occupations. For example, some partners of AEWV and ESWV holders will continue to be eligible for a work visa allowing them to work in any occupation for any employer in New Zealand, with no median wage threshold. This includes partners of:

  • migrants who are paid at least twice the median wage, or
  • migrants who are working in a role on the Green List.

The positives of these changes include:

  • Partners applying for a PWWV will not need to have a job offer to apply for this visa, and employers do not need to complete a Job Check.
  • Once the visa is granted, the partner can change employers without applying for a Variation of Conditions.
  • There is no minimum number of hours that partners need to work.
  • Any later changes affecting the employer’s accreditation, the median wage, and sector agreements will not impact the visa holder if they remain in the same employment.

It is important to note that these changes will not affect current PWWV conditions or people who apply for a PWWV before 31 May 2023.  In addition, there will be no changes to the work visa conditions for holders of a Partner of a New Zealander Work Visa or partners of those holding other work visas such as the Post Study Work Visa.

From 31 May 2023, it will be possible to check on Immigration New Zealand’s website if an employer is accredited.

Talk to Us

At Pitt & Moore Lawyers we appreciate that many migrants will find these changes complex and may have difficulty determining what conditions will be placed on their, or their partner’s PWWV.

If you have questions about eligibility, how this may affect you or your partner or need help with the visa application process, please don’t hesitate to reach out to our experienced team of immigration lawyers.

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Employers’ update on the Accredited Employer Work Visa: Prepare to be audited, and pitfalls to avoid

By Elly Fleming

16 May 2023

Do you need to hire skilled migrants to fill vacancies, grow your business or move into that new direction? Since the Accredited Employer Work Visa (AEWV) opened last year, there have been multiple tweaks to immigration rules to understand – and pitfalls to avoid.

There are also a number of significant changes on the horizon that will have a dramatic impact on businesses throughout New Zealand. These include the upcoming changes to work rights for partners of temporary visa holders, who will generally only be able to work for an accredited employer in a role paying at or above the median wage from 31 May 2023, as well as the planned expansion of employer accreditation to all employers who hire migrants due to commence in 2024.

From 31 May 2023, people will be able to check on the Immigration New Zealand’s website if an employer is accredited.

If you previously considered that it wouldn’t be necessary for your business to gain accreditation, now is the time to re-evaluate.

Factoring in median wage increases

The median wage increase, in place since February 2023, has affected wage thresholds for businesses who fit into AEWV sector agreements construction and infrastructure, meat processing, onshore seafood processing and the seasonal snow and adventure tourism.

A new transport sector agreement, finalised in April 2023, grants a median wage exemption to enable employers to fill critical truck, bus, and maritime transport roles.

The ins and outs of accreditation

One positive development is that Immigration New Zealand (INZ) is now granting automatic extensions for employer accreditations. If your organisation applied for its first accreditation before 4 July 2023, that accreditation will automatically be extended by 12 months, and will be valid for 24 months from the approval date.

You should ensure that your organisation holds the correct accreditation type, suitable to your needs and circumstances. Without the correct type, you must apply to renew or upgrade your accreditation, and pay the full INZ application fee.  

To avoid this hassle, we recommend seeking expert advice before you apply.

Don’t get caught out by post-accreditation checks

In April 2023, the Ministry of Business, Innovation and Employment (MBIE) announced the start of post-accreditation audits to monitor compliance with the AEWV rules.

Any accredited business may be selected for an audit, where you will be asked to provide evidence. Fail to do so and your business could have its accreditation status revoked or suspected.

The range of information that MBIE can ask for includes, but is not limited to:

  • financial statements to demonstrate financial viability
  • evidence of PAYE payments to your migrant employees
  • evidence about how offshore recruitment agents were paid
  • evidence that settlement information was provided to migrant employees
  • logs of hours worked by migrant workers
  • information about your key business people and their role.

From our experience, when it comes to compliance it is advisable to keep comprehensive records. And given the potential implications for businesses (in serious cases, MBIE may prosecute) – always take expert advice.

Common pitfalls to avoid

Failing to pay migrants the requisite hourly rate can lead to considerable problems under both employment and immigration law.  You risk losing your accreditation status and could face a very costly claim against your business in the Employment Relations Authority.

Another area where employers fall into strife is giving advice or assisting with migrants’ work visa applications. Generally, employers must not provide migrants with immigration advice, such as which visa to apply for, or how they should complete the application form questions.

At Pitt & Moore we have also seen the fall-out for employers who fail to check that migrant workers have the right to work on an interim visa. This is not always the case and there are serious penalties under the Immigration Act for wrongly enabling migrants to work.

Many employers tend to inadvertently include inaccurate information in their Job Check applications as a result of flaws with the design and format of the questions used across the online platform. This can create havoc for migrants’ visa applications and in some cases can ultimately result in the employer needing to lodge a fresh Job Check application at an additional cost to the business.

Expert advice is readily available

If you have any questions or would like assistance with your company’s accreditation or job check applications please get in touch with Pitt & Moore’s specialist employment and immigration team: 03 548 8349.

Parent Resident Visa ballot system – Bringing parents to New Zealand

By Elly Fleming

8 May 2023

The Parent Resident Visa Category allows New Zealand citizens or eligible New Zealand residents to sponsor their parents to relocate permanently to New Zealand. To be eligible parents must be invited to apply for residence, have a sponsor, and meet health, character, and English language requirements. The sponsor must live in New Zealand and meet specific salary requirements, which have been increased from 1 May.

In order to be invited to apply for residence, an expression of interest (EOI) first needs to be selected from the pool. The government recently implemented a new system whereby EOIs submitted on or after 12 October 2022 are to be drawn randomly by ballot every three months starting from August this year.

All EOIs submitted before 12 October 2022 will be selected in the order they were submitted, in semi-regular selections starting on 9 May. While INZ has promised to make the EOI application available online during May to make the process more user-friendly, we have yet to see this come to fruition.

We highly recommend that professional advice is sought prior to submitting your EOI.

Pitt & Moore provides expert advice on immigration, employment, and visa rules and processes, so please contact us for some expert guidance.

The case for an overhaul of the parent resident category

New Zealand desperately needs skilled migrants, to look after our rapidly aging population in hospitals, general practices, and aged care facilities, to teach our children, contribute to the construction and engineering efforts in our cities, fill critical gaps in our ICT, telecommunications, primary industries, science and trades sectors and more.

Policymakers should factor in that a proportion of people will inevitably want to bring their parents to New Zealand once they have settled here. And that they deserve this opportunity to live a normal family life.

But if decision-makers are less inclined to consider the human story here they should at least consider the evidence about the economic benefits.

Happier families invest in New Zealand

A 2019 report by MBIE found that migrants who sponsored parents made a more substantial commitment to New Zealand than those who didn’t. Migrants whose parents live with them are more likely to find a job and work longer hours, especially when they have young children.

An insistence on an income threshold raises questions about how the government, and New Zealand society (as voters for that government), perceive and then evaluate the contributions of migrant families.

The fact is that studies show that family reunification has a positive economic impact on countries that reduce the barriers to this. While older parent immigrants may not bring immediate economic gain, they bring emotional, social, and cultural capital to their children and grandchildren which can create economic opportunities later.

The changes to Australian citizenship rules could have serious consequences

The announcement that New Zealanders will soon have access to Australian citizenship after four years makes it more important than ever to make our own immigration settings fair and appealing.

In order to counteract the potential escalated loss of highly-skilled workers to Australia, we need to urgently maximise the numbers of skilled workers moving to, and remaining in, New Zealand.

And yet the Parent Resident Visa is laden with off-putting criteria that will have skilled workers looking to better opportunities in other countries. New Zealand is missing an opportunity to attract and retain the people with the skills we need to move forward, and each day skilled workers who have been trying to bring their parents to New Zealand are leaving, moving to countries like Australia, Canada and the US where it is easier for them to be together.

A case for change

Policymakers should urgently consider establishing an additional option under the current Parent/Grandparent Visitor visa category, like the successful Australian Sponsored Parent (Temporary) Visa. This is a long-stay, non-residential visa for 3-5 years, possibly extending your stay up to 10 years.

This would mean that when you apply, your application goes in the queue and you have the certainty of a place in the queue. Applicants can see the path towards a more rounded life and opportunities to settle and invest in New Zealand.

Talk to us

We offer an initial 15-minute free consultation to all new clients to discuss your particular circumstances and what services we can provide.

The Skilled Migrant Category Resident Visa – It’s a points game and the rules are changing

By Heather Collins

2 May 2023

After being suspended since 2020, many work visa holders were relieved to see the Skilled Migrant Category for Residence (“SMC”) reopen on 11 November 2022, with INZ selecting all Expressions of Interest having 160 or more points.  The following day the points threshold increased to its current threshold of 180 points. 

Despite the increased points now required,  SMC is unlikely to remain in its current state for long.  On 18 November 2022 MBIE’s consultation process on proposed changes to the SMC concluded, and the government is expected to consider feedback and make further announcements shortly.

The proposed 6 point system

If the proposal comes into effect the new points system will be focussed on granting residence to applicants who can meet New Zealand’s long-term or medium-term skill needs where the shortages are difficult to fill by training New Zealanders, or require a lot of time or training to be up to the requisite level.

Applicants will need to have a job offer and 6 points  which would be made up in the following way:

  • 3 to 6 points will be based on their New Zealand professional registration or  qualifications or  income;
  • 1 point (up to a maximum of 3 points) for each year working in New Zealand in a skilled job being paid at least the median wage

Under the proposed points system there will be direct to residence pathways for the highest skilled people in each category, such as those who have professional registration requiring at least 6 years of training or work experience, or people who hold a doctorate, or people earning at least 3 times the medium wage.

Will bonus points remain?

Under the proposal bonus points for factors which don’t relate to skill level will be removed,  such as bonus points for: 

  • location of the job or job offer,
  • study; and
  • matters which relate to the applicant’s partner.  

Will migrant workers in particular occupations be excluded under a 6 point system?

Those in occupations where much of the training is “on the job”, and where there isn’t registration, are likely to have difficulties gaining 6 points.

Following on from the consultation process MBIE is providing advice to the government regarding critical roles which won’t be able to meet the proposed points. However MBIE have also  indicated that it is the green list which will be used to make occupation-based exceptions,  so that SMC is left as a straightforward, simple system.

A review of the green list is occurring in July 2023, which will be roughly the same time as the new SMC points system (which may alter as a result of the consultation) is aimed to be introduced.  

What will the wage thresholds be?

Under the proposal the wage threshold will stay the same as under the current system which means:

  • occupations which are ANZSCO level 1-3 require the median wage or higher ; and
  • occupations which are ANZSCO level 4-5 will require at least 1.5 the median wage.

What will happen to the SMC Job Search Visa?

Under the proposal applicants will need a job or job offer, and the Job Search Visa will be removed.

What will be the Application Process under the proposed new scheme?

MBIE are proposing to remove the Expression of Interest step so that applicants  can apply for Residence right away.

Under the proposal there won’t be a cap on how many eligible applicants can be granted residence.  However MBIE  have indicated that adjustments may be made if the approvals are higher or lower than expected,  or the skills are not aligned with New Zealand’s long-term needs.

The window of opportunity is closing

If the proposed changes go ahead as suggested, some people will be excluded from Skilled Migrant Category Residence. 

For this reason, those who currently meet 180 or more points should be submitting an Expression of Interest as soon as possible to ensure that they don’t miss out. In addition, those who have an  Expression of Interest in the pool which is due to expire should consider submitting a new Expression of Interest.

Get professional advice

Expert advice prior to submitting an Expression of Interest can help to ensure that the points claimed can be substantiated at the Resident Visa Application stage.  It’s important that time isn’t lost with an unsuccessful application when the clock is ticking on the current SMC points system.

Talk to us

For many migrants this may be their only chance to get across the ‘residence’ line. If you’d like more information on this topic talk to Heather Collins, Associate, Pitt & Moore.

Frequently Asked Questions on Deportation

By Elly Fleming

1 May 2023

If you, or your family member, are facing possible deportation from New Zealand, don’t bury your head in the sand, act now, get expert legal advice and know your options. Below are answers to some frequently asked questions concerning deportation which may be of assistance.

If I’m facing deportation, do I have to leave New Zealand as soon as possible?

Any number of things can happen that can activate or give rise to deportation liability, so no two situations are ever completely the same.

Usually, you do not have to leave New Zealand straight away. In most cases, there would be options or certain steps that you could take. For example, you may be able to appeal against your deportation liability, within certain time limits.

It is critical that you know and understand all of your options so that you can make an informed decision. Getting professional legal advice as soon as possible can assist greatly in this regard. However, from our experience where people leave things to the very last minute, we find that they often loose their chance of being able to stay here.

Will I be allowed to remain in New Zealand?

As no two situations are ever completely the same, whether you will be allowed to remain in New Zealand will largely depend on what event(s) activated or gave rise to your deportation liability as well as on any mitigating factors that you may have.

From our experience, usually the stronger your ties to New Zealand, the stronger your prospects of being allowed to stay. For example, if you have family members in New Zealand, who are New Zealand citizens and/or residence visa holders, this in certain circumstances could form the basis for you being allowed to stay here. Likewise, if you have skilled employment, and your New Zealand employer relies on your specialist skill set and would find it very difficult to replace you, this could equally improve your prospects of being allowed to remain in New Zealand.

In many instances, people face deportation due to criminal convictions in New Zealand. Typically, the nature of criminal offending, how long ago it occurred and its severity will have a bearing on the chances of being able to stay in New Zealand. For example, a person convicted for the first time of drink driving may have a stronger chance of remaining in New Zealand, compared with someone who was convicted of a sexual assault or family violence.

Your circumstances are unique and there could be many factors that could help you challenge your deportation. It’s really important to get professional advice.

We are experts in this area and can give you advice on your particular circumstances. If we believe we can assist, we will explain your chances of success and the costs associated with engaging us.

Is it better for me to leave voluntarily without fighting my deportation?

As noted above, each situation is different and there is no ‘one-fits-all’ answers. It will depend on your particular circumstances and future plans, including any plans for travel to other countries.

If you decide to leave New Zealand voluntarily within the period of time that Immigration New Zealand has given you, for example either within the 14 days of being served with the Deportation Liability Notice or within your appeal period, then technically you will not have been deported from New Zealand. The benefit of this approach if you are planning to travel to countries like Australia or United States of America or the United Kingdom or Canada, in your future visa applications you can legitimately answer “no” when asked the standard question “Have you ever been deported from any country?”. On the downside, your prospects of being able to return to New Zealand would generally be low.

If I am deported, will I be allowed to return to New Zealand?

Normally, it would be very challenging for you to gain entry permission or a new visa following deportation or removal from New Zealand. In certain situations you may be able to return. Professional advice and assistance are highly recommend if you or your loved ones are trying to return to New Zealand following a deportation.

It is also important to be aware of the specific bans on re-entry to New Zealand if you have been deported. These bans are specified in section 179 of the Immigration Act 2009, they range from two to five years if you have been in New Zealand unlawfully, but for more serious grounds for deportation including criminal convictions, classified as being a threat to security, immigration fraud, visa granted on basis of false identity, there are permanent bans (this means you can never return, unless Ministerial intervention can be obtained).

From our years of experience, we know that in most cases it is prudent to oppose your deportation liability while you are still in New Zealand. Once you are outside New Zealand the obstacles in the way of returning following a deportation are usually very high.

What is a Deportation Liability Notice?

A Deportation Liability Notice is a very serious warning to the visa holder that they are at risk of being deported from New Zealand. The notice sets out the grounds for deportation liability, including which section of the Immigration Act applies, the consequences of deportation, as well as the review and appeal rights, along with the applicable time limits, if such rights exist.

What is a Deportation Order?

A Deportation Order is a direction stating that the affected person is required to leave New Zealand. It allows Immigration New Zealand to immediately act to detain and remove the affected person from New Zealand (i.e put them on the first available craft leaving New Zealand). Sometimes New Zealand Police will assist or be involved in this process. This can happen as soon as the Deportation Order is served on the affected person. However, for practical reasons this process can often take several days or longer.

Generally, Deportation Orders may only be served after the affected person has exhausted their legal rights of review or appeal under the Immigration Act, or has done nothing to exercise their legal rights within the prescribed time limits.

The order typically sets out the grounds for deportation liability, the consequences of deportation and the costs that must be repaid to the New Zealand Government for the actual deportation.

Talk to us

It is critical that anyone who finds themselves facing possible deportation obtains legal advice from immigration experts to give themselves the best possible chance of remaining in New Zealand.

If you’d like more information on this topic talk to Elly Fleming, Associate, Pitt & Moore.

Big numbers and big delays for migrant worker visas

By Lavinia Askin

5 August 2022

While some employers are taking a day-by-day approach to keeping their business running smoothly at the same time as waiting to fill critical vacancies, a mountain of applications is growing by the minute.

The numbers say it all:

  • 7 – more than one month since applications opened for migrants to apply for the new Accredited Employer Work Visa (AEWV), only seven visas have been granted so far (as at 3 August).
  • 435 – the number of worker visa applications yet to be decided.
  • 1,179 – the number of Job Checks completed for employers as part of the accreditation process. This is only 30% of the total number of Job Check applications made since applications opened on 30 June.
  • 8,415 – employer accreditation applications received since applications opened on 23 May. 90 percent of these have been approved.

There are also some big delays

The AEWV policy is a new employer-led work visa system. This means that employers have to learn how to navigate the new technology and AEWV policy. At the same time, Immigration New Zealand (INZ) staff are receiving a lot of enquiries from employers while having to iron out technical issues holding up the system.

INZ acknowledge the effects of the technical issues on the delays, that are no doubt compounded by pressure on the INZ workforce caused by COVID-19 and other winter illnesses.

Investing in the process

There are three steps for employers to employ migrant workers.  The Job Check step is the second of these and unless you get it right, your vacancy will not be filled any time soon.

As explained by my colleague Heather Collins in an earlier blog, many employers have never had to deal with Immigration New Zealand before. They’ve had to decide whether it’s worthwhile for them to undertake an onerous process to obtain accreditation and then be subject to additional scrutiny from the government.

If you’re an employer and you’ve decided to invest in the process then it’s critical you avoid mistakes that will hold up your applications.

Pitt & Moore advisors can explain the new immigration rules and processes exactly as they apply to you and your business, so please contact us for some expert navigation and advice.

Keeping your place in the queue

INZ aim to process Job Check applications within 10 working days where applications are straightforward, complete and correct. Here are the most common mistakes employers are making that are putting their applications on the back burner:

  • incomplete employer agreements submitted during the Job Check step. You can’t miss anything out here and INZ are having to go back to employers for details such as minimum hours of work, the maximum number of hours worked before overtime provisions apply, and a detailed description of the work.
  • failing to meet AEWV policy requirements in the Job Check step by not advertising a job for a minimum of 14 days or not including the salary range.
  • submitting irrelevant Job Check applications – Job Checks should only be submitted for current vacancies where jobs have been advertised (if the labour market test applies – for example, occupations on the Green List do not need to be advertised if they meet the minimum requirements for the role as per the list), and no New Zealanders have been found.

To minimise time wastage and associated costs we recommend seeking specialist advice. Getting the right advice early will also reduce the likelihood of having an application declined.  What sets us apart is that we are experts in each step of the immigration process as well as in employment law. This means that we can advise on all immigration, employment and visa-related issues.

Feel free to reach out to our team of Immigration and employment legal experts to help navigating this new system.

Talk to us

We offer an initial 15-minute free consultation to all new clients to discuss your particular circumstances and what services we can provide.

Inching closer to Green List residence applications

By Elly Fleming

29 July 2022

Immigration New Zealand released further detail about the three new residence pathways for migrant workers this week.

First announced by the Prime Minister on 11 May as part of a major immigration reform package, the Green Lists are now inching towards reality with applications for the first of the three categories (Straight to Residence) opening on 5 September.

The other two categories are more than a year away however – prospective applicants for ‘Work to Residence’ and ‘Highly Paid’ (more than twice the median wage) categories will be waiting until at least 29 September 2023, although their two years of work required to qualify for residence can be backdated to a start date of 29 September 2021.

Touted as a rebalancing of the immigration system to address the country’s immediate skill shortages and speed up our economic recovery from COVID-19, the reforms might not be moving as swiftly as some employers will be hoping for – some desperately so (healthcare worker crisis sound familiar?) Nonetheless, Minister Michael Wood’s announcements this week give employers, and prospective new migrants, real milestones to plan around.

Pitt & Moore advisors can explain the new immigration rules and processes exactly as they apply to you and your business, so please contact us for some expert navigation and advice.

It’s been a while. Remind me about the Green List again?

The three categories apply to people working in more than 85 hard-to-fill roles on the Tier 1 and Tier 2 Green Lists, and those earning at least twice the median wage. The streamlined and prioritised pathways to residency aim to incentivise high-skilled healthcare, engineers, trade and tech sector workers to relocate to New Zealand long term.

There are two tiers to the Green List.

People in Tier 1 occupations are eligible for the straight to residence pathway, meaning they can apply for residency as soon as they arrive in New Zealand. The occupations include construction, engineering, health and social sciences, primary industries and sciences, ICT, telecommunications and electronics roles, including independent contractors in these roles.

People in Tier 2 occupations are eligible for the Work to Residence pathway and can apply for residence after two years (backdated from 29 September 2021). The occupations include health and social services, trades and agricultural roles.

For either tier, employers still need to be accredited for the Accredited Employer Work Visa (AEWV) but can complete job checks without proof of advertising (other conditions apply).

Is it a smooth or bumpy pathway to residency?

Immigration processes come with varying degrees of paperwork and a range of fees. These visa categories are on the high end of fees ranging from NZD $4020 to $4890. For employers, the two Green List tiers mean that they can skip the labour market test requirement of the AEWV process – the complexities of which I described in an earlier blog.

As usual the devil is in the detail and there are plenty of fishhooks in the immigration rules for each of these pathways to residence. The following are the key requirements:

  • be 55 years old or younger 
  • be able to meet the Skilled Migrant Category English language requirements, 
  • be able to meet standard health and character requirements for residence, and 
  • have or have been offered a job with an accredited employer.

In addition, to be eligible for Green List pathways applicants must:

  • have or have been offered a full-time role (at least 30 hours a week), 
  • have or have been offered a Green List job, and  
  • meet the requirements of that Green List job. 

Straight to Residence applicants’ employment offer must:

  • be for at least 12 months, or, 
  • be a contract or contracts for services totalling at least six months.   

Applicants for the Highly Paid pathway must:

  • hold an Accredited Employer work visa or another work visa applied for before 4 July 2022 at the time the residence application is made.
  • demonstrate they have had acceptable work for at least 24 months in the 30-month period before the resident visa application is made. This can be accrued from 29 September 2021. 
  • have earned at or above two times the median wage for at least 24 months. 

To minimise time wastage and hassle we recommend seeking specialist advice. Getting the right advice early will also reduce the likelihood of having an application declined.  

Talk to us

We offer an initial 15-minute free consultation to all new clients to discuss your particular circumstances and what services we can provide.

What sets us apart is that we are experts in each step of the immigration process as well as in employment law. This means that we can advise on all immigration, employment and visa-related issues.