Revised Partners Work Rights: What You Need to Know 

Elly Fleming

1 November 2024

Starting 2 December 2024, the New Zealand government will expand open work rights to more partners of work visa holders, allowing them to work for any employer if they meet certain wage and sector conditions. Although great news for some, it is important to note that only certain partners will be eligible… 

Being granted open work rights means gaining the freedom to work for any employer, in any lawful occupation, and at any pay rate, so long as it meets the current New Zealand minimum wage of $23.15 per hour.  

Additionally, open work rights give a person the option to be self-employed or start a business of their own. These rights don’t limit a person to one job only, open work rights allow someone to hold multiple jobs. There is also no obligation to work at all.  

Open work rights will become available to: 

  • all partners of Accredited Employer Work Visa (AEWV) working in an Australian and New Zealand Standard Classification of Occupations (ANZSCO) Level 1-3 role and earning at least NZD$25.29 an hour  
  • partners of AEWV holders earning at least $25.29 an hour if they were already supporting a partner for a work visa on 26 June 2024 
  • all partners of Essential Skills work visa holders earning at least $25.29 an hour 

For those with partners working in an ANZSCO Level 4-5 role, open work rights will only be granted if their partner: 

  • earns at least $47.41 an hour  
  • earns at least $31.61 an hour in a role on the Green List and meets the Green List requirements for that role 
  • earns at least $25.29 an hour and meets the requirements of a role in the Transport or Care Sector Agreements (or the wage specified in the sector agreement, whichever is higher). 

Current holders of partner work visas with specific work conditions, will be able to apply to vary their visa conditions to open work rights, when their partner meets the expanded eligibility criteria. 

While this change in immigration policy settings addresses many concerns over labour shortages and family separation, we feel all partners of AEWV holders who are in New Zealand, irrespective of their partner’s occupation, should be able to work for any employer.   

This is especially relevant for AEWV holders with roles in ANZSCO Level 4-5 occupations as people with lower-skilled occupations are far more likely to need their partner to be able to work to meet the rising cost of living in this country.  This would restore Kiwi employers’ access to a larger pool of workers and streamline hiring processes.   

We understand that immigration policy changes can be difficult to get your head around. Our team of expert immigration and employment lawyers are here to help demystify these changes for you and provide advice for your specific situation, contact us today on 03 548 8349. 

Lights, camera, action: Securing Entertainers Work Visas for film and television crews 

Hannah McCarthy

12 September, 2024

In the world of film and entertainment, New Zealand has long been known for its stunning scenery and world-class special effects facilities, making it an ideal place to produce high-budget international film and television.  

What most people do not realise is the amount of paperwork required behind the scenes to ensure talent and crew from around the world can legally work on productions in New Zealand.  

Anyone working in New Zealand for any period must be a New Zealand or Australian citizen, an Australian permanent resident, hold a New Zealand residency permit, or a valid work visa. Immigration New Zealand is required to enforce this, even when it comes to big-budget, high-profile productions.   
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This means visiting producers, directors, musicians, cast and crew must apply for a suitable work visa before they come and work on our shores. The most common visa for this is called an Entertainers Work Visa. 

With this visa, you can come to New Zealand to work in the entertainment, music, film or television industries for a limited time but can only work for the specific employer on the specific production you’ve referenced on your application.   

Immigration NZ requires, among other things, that an entertainment industry employer shows that the talent or crew they want to bring in are ‘manifestly essential’ to the production, or that they do not put at risk engagement of New Zealand professionals and have previously looked at engaging New Zealand professionals to fill the role. All of this must be backed up with clear evidence. 

As an example, if a production company needed a specific overseas worker because finance or distribution depended on their involvement, the visa application would need to include written confirmation from a sales agent, distributor or key investor to prove that this was the case. 

Whether you’re an actor, performer, musician, production company or crew member, dealing with complex visa requirements like this can be daunting to navigate. At Pitt & Moore, we specialise in securing Entertainers Work Visas, ensuring that the focus can remain on your craft rather than on the complicated visa process associated with working overseas. 

Our immigration team brings a wealth of expertise in handling the unique visa requirements associated with the entertainment, music, film, and television industries. We understand that each sector has its own set of requirements and nuances, and we are committed to providing a tailored approach to meet these specific needs.  

One such nuance is obtaining any necessary agreements from relevant New Zealand performers unions or professional associations.   

Our services are designed to provide personalised attention and a streamlined process. We make sure that all the necessary documentation and procedural steps are meticulously managed, so you can pursue your international opportunities with confidence. We pride ourselves on our proven success in helping clients secure Entertainers Work Visas, allowing them to perform and collaborate internationally without hassle.  

Securing an Entertainers Work Visa can be riddled with potential obstacles if not managed properly. Common issues include incomplete or incorrect documentation, missed deadlines, and misunderstandings of specific visa requirements. These pitfalls can lead to significant delays or even visa refusals. Furthermore, New Zealand’s immigration policies are currently in a state of upheaval and changes to immigration rules can affect your application if not promptly addressed. 

At Pitt & Moore, we excel in identifying and navigating these challenges. We ensure that your application is thorough, timely, and compliant with the latest immigration regulations. Our proactive approach helps mitigate risks and prevents issues that could disrupt your plans and filming schedule.  

If you’re ready to take the next step  contact us today to schedule a 15-minute free consultation.  

Immigration rule changes for seasonal workers

Elly Fleming

28 August 2024

There have been a couple of announcements this month affecting Kiwi employers who might need seasonal workers.

As outlined below, there have been improvements made to the Recognised Seasonal Employer (RSE) scheme following government review. And, for those industries with seasonal peaks, there is a new subcategory of the Specific Purpose Work Visa for when the work is directly impacted by changes in weather.

RSE cap increase of 1,250 workers

For the upcoming 2024-2025 season, the cap on the number of RSE workers is increasing to 20,750. This is an increase of 1,250 from last season’s cap, which was 19,500.

This increase is touted to help meet industry’s expansion plans and growth projections, particularly in wine and kiwifruit exports, while also being mindful of accommodation availability for workers.

Other improvements

Most of the following changes take effect from next week, on the 2 September.

  • Employers must pay RSE workers an average of 30 hours a week over 4 weeks.
  • RSE workers will now be granted a visa that will allow them to leave and return to New Zealand during a season.
  • RSE workers will no longer have to be screened for HIV.
  • The pause on accommodation cost increases will be lifted and employers will be able to increase rents modestly.
  • RSE workers will be able to undertake training and skills development not directly related to their role.
  • There will be more flexibility for RSE workers to move between employers and regions.
  • Timor-Leste will be included in the scheme.
  • The requirement to pay RSE workers at least 10 percent above the minimum wage will only apply to experienced workers returning for their third and subsequent seasons.

This is an interim, time-limited, streamlined pathway and is more in line with the length of seasonal work.

To be eligible, the seasonal work must be directly impacted by changes in weather, such as harvesting, ski instructing, or tree planting.

The role must also start on or before 31 May 2025, and be for no longer than 9 months.

Horticulture, viticulture, and fishing crew work covered by other visas is excluded.

Applications from migrants must be received on or before 31 March 2025.

As an employer you will need to:

  • hold employer accreditation
  • pay at least NZD$29.66 per hour for a minimum of 30 hours per week.
  • advertise the role beforehand and provide evidence of this to the migrant to include in their application.

Our team of expert immigration and employment lawyers have a great deal of experience helping employers and migrant workers navigate all aspects of the complex immigration process. We are here to help, contact us today on 03 5488349.

What does the upcoming visa fee increase mean for migrants and Kiwi employers?

Elly Fleming

14 August 2024

New Zealand visa applicants and employers have found themselves in a race against the clock as a substantial Immigration New Zealand fee increase looms.  

Come October 1, New Zealand will see a jump in visa fees for applications across nearly all visa categories, including employer accreditation. It is yet another hurdle in what has already been a turbulent year for changes to immigration policy, and one that is likely to have a knock-on effect on visa processing times for the remainder of 2024.  

For those who have set their sights on coming to or remaining in New Zealand, this major increase in fees will come as a significant shock. 

In many cases, application fees are nearly doubling. Immigration New Zealand has released a full table of changes to fee and levy rates, which illustrates that as of 1 October: 

  • The application fee for a Skilled Residence Visa (this includes Skilled Migrant Category, Green List: Straight to Residence, Green List: Work to Residence, and Care Workforce: Work to Residence categories) will be raised by 50% to $6,450, up from $4,290. 
  • The application fee for a Partnership Residence visa will almost double to $5,360 from its current $2,750 setting. 
  • The application fee for a Dependent Child Resident visa will increase from $2,750 to $3,230. 
  • The fee for processing a Student visa will double from $375 to $750. 
  • For Accredited Employer Work Visas, the overall cost will increase from $750 to $1,540. 
  • Employer Accreditation applications see a gradual increase with the biggest hike for labour hire accreditation category, from $3,870 to $4,060.  

Despite the fee increases, New Zealand will continue to subsidise visa fees for applicants from Pacific countries and there will be no fee increases for Recognised Seasonal Employer status, Pacific Access Category and Samoan Quota Resident visas, or for New Zealand Electronic Travel Authority (NZeTA).    

We highly recommend that migrants and employers plan ahead and only submit applications that meet all applicable criteria. This fee hike is likely to cause a mass rush to get applications in ahead of 1 October. As a result, processing delays look very likely as Immigration New Zealand copes with an influx of applications.  

At Pitt & Moore, we are also anticipating that Immigration New Zealand’s online application systems will experience issues in the period leading up to this date due to a higher volume of transactions. To avoid additional costs and technical issues, our advice is to get eligible applications in as soon as possible, and well ahead of that October deadline.  

When application fees increase significantly, the stakes for migrants and Kiwi employers are higher, making expert legal advice even more crucial.  

Visa applications often involve intricate legal requirements and documentation. An expert can help navigate these complexities, ensuring that all forms are filled out correctly and that all required documents are submitted. From our experience, missteps in this process can lead to delays or denials, which can be costly and time-consuming. 

 Expert legal guidance will help make this process more streamlined and will give you a much better chance at securing your visa. 

Don’t hesitate to reach out to the immigration team here at Pitt & Moore for professional advice on how best to approach your visa application.  

Further changes to Accredited Employer Work Visa (AEWV) Scheme

By Lavinia Askin

17 July 2024

A flurry of changes made to the AEWV scheme of late reflects the New Zealand Government’s ongoing efforts to return settings to similar ones under the previous Essential Skills Work Visa. Although the intention is to align immigration policies with the Government’s broader economic and social objectives, the changes are leaving migrant workers and New Zealand employers in a state of flux.

Further rule changes have been announced surrounding the Government’s move to prevent AEWV holders in ANZSCO skill level 4 and 5 roles from supporting work, student or visitor visa applications for their partners and dependent children, with some limited exceptions.

A recent clarification of instructions distributed by Immigration New Zealand outlined that AEWV holders (including those in transport or care sector employment) will have to be paid the median wage (currently $29.66 NZD per hour) to support their partners for a conditional work visa.

Likewise, AEWV holders in ANZSCO level 4 or 5 roles earning at least 1.5 times the median wage will be able to support their partners for a work visa and dependent children for student or visitor visas.

Further to this, a special work visa that allows the holder to work for any employer may be granted to the partner of an AEWV or Essential Skills work visa holder in a role that is either paid at least twice the median wage or paid at least the median wage and is on the Green List and the work visa holder meets the applicable requirements.

These changes apply to new AEWV applicants including migrants already in New Zealand. However, people who hold or have an application in progress for a visa as the partner or dependent child of affected AEWV holders will not be impacted, provided their application was received by Immigration New Zealand prior to 26 June 2024 and provided visa is approved.

Partners and dependent children will still be able to apply for a visa in their own right to come to New Zealand, such as an AEWV or an international student visa, or a general visitor visa, provided they meet the requirements.

We note that with effect from July this year, school aged children of eligible international students, who are studying for level 7 or 8 bachelor’s or bachelor’s (honours) degrees specified on the Green List, can apply for Dependent Child Student Visas and study in New Zealand as domestic students.

Ultimately, the AEWV changes reflect a furthering of the measures being made to dissuade prospective migrants to come to New Zealand and will yield huge challenges for kiwi employers who rely on migrants to fill positions in many key industries.

The eligibility checker found on Immigration New Zealand’s website is a helpful tool, however we also strongly advise seeking guidance from an immigration lawyer if this new update relates to you in any way and you have questions or concerns. Our team at Pitt & Moore are here to help.

Frequently Asked Questions on Deportation

By Elly Fleming

17 June 2024

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. For example, when visa holders commit crimes in New Zealand they can become liable for deportation. This can include drink driving and more serious criminal offences. Another common scenario is visa holders breaching their visa conditions (for instance working on a visa that has no work rights or working for a different employer).

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. The options will also depend on the class of visa that you hold.

It is critical that you know and understand all of your options so that you can make an informed decision. Getting professional legal advice (at times from both criminal and immigration lawyers) 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 lose 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 offending or 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 or entirely avoid deportation proceedings (see: Discharge Without Conviction section below). 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 New Zealand 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 recommended 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.

What is a ‘Discharge Without Conviction’ and how does it help me if I am facing deportation?

A discharge without conviction under section 106 of the Sentencing Act 2002 in New Zealand is a legal outcome where a person who has been charged with a criminal offense is discharged without being convicted. This means that while the person may have admitted or been found guilty of the offense, they are not convicted of it. Instead, the court decides to discharge them without entering a conviction against their name.

Generally, a discharge without conviction could help mitigate the negative impact of a criminal conviction on the immigration status of temporary entry class visa holders (work visas, student visas, visitor visas etc…) or assist residence class visa holders (Resident Visas and Permanent Resident Visas) to entirely avoid deportation proceedings. 

If you are charged or are under criminal investigation while holding a visa in New Zealand, its essential to consult with both criminal and immigration lawyers to understand fully how a criminal conviction could impact you. 

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.

Our Immigration and Litigation Teams assist visa holders with both criminal and immigration advice. We also provide expert opinions in support of section 106 discharge without conviction applications, addressing in detail the immigration consequences of criminal convictions for visa holders or people unlawfully in New Zealand.

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

man writing on paper

Renewal of Employer Accreditation – What employers need to know? 

July 2024 will see the first phase of accreditation status renewal for many Accredited Employers. Although processing times can vary, Immigration NZ (INZ) currently recommends employers apply six weeks before accreditation expires, so now is the perfect time to plan ahead to retain or continue hiring people from overseas.  

Application for renewal

The new online form for re-accreditation as an Accredited Employer under the Accredited Employer Work Visa (AEWV) scheme is now available on the INZ website, but preparation is key to success with this process and there are many things employers need to know ahead of applying: 

  • Check your expiry. Employers should only apply when their accreditation is nearing its expiry date (approximately 2 months out).  
  • Come prepared. For faster application processing, an employer needs to provide supporting documents upfront that show evidence of: 
    • being a viable and genuinely operating business or organisation
    • compliance with business standards
    • settlement support for your AEWV employees
  • Take care when applying. Ensuring your applications are prepared correctly the first time will avoid delays or declines.  
  • Employers must ensure their renewal application is for the correct type of accreditation, as there are no refunds for incorrect applications. 

Delivering on declarations made in original accreditation applications 

With the accreditation renewal applications, we expect INZ to check whether businesses have complied with the declarations or promises made in their initial accreditation application.  

This means businesses may need to show they provided settlement support to new AEWV migrants, gave them paid time to complete Employment NZ’s online modules, and made sure key staff completed Employment NZ’s employer modules, amongst other obligations.  

Consequences of immigration or employment non-compliance 

INZ can now issue an infringement notice to employers who are found to be: 

  • Employing people in breach of their visa conditions 
  • Employing people unlawfully in New Zealand 
  • Failing to comply with INZ’s10-day information request 

This applies to all New Zealand employers, irrespective of whether they hold accreditation status with INZ. Penalties start from $1,000 per employee and a single infringement notice will result in the employer’s accreditation status being suspended. 

Does my business need to renew? 

If you are unsure whether you need to renew your accreditation, it’s important to think about the new migrant workers you may need to hire, while also taking into consideration your current migrant workers and any potential plans they may have to apply for residency through your business.  

If you choose not to renew, the expired accreditation does not prevent your AEWV holder employee from continuing their employment with your business. However, it will mean: 

  • You will not be permitted to hire new migrants on AEWV or make a Variation to their AEWV from another employer (whether from overseas or already in New Zealand) 
  • You will not be able to apply for another Job Check or support a worker to apply for their AEWV balance 
  • Certain migrant workers who hold open Work Visas (e.g. Partner of a Worker Work Visas) allowing them to only work for an accredited employer, will not be permitted to work for your business 
  • Migrant workers will not be allowed to apply for residence based on work with your business.  

It is also important to understand that the choice not to renew accreditation can mean  significantly narrowing the pool of migrants who can work for your business and will likely discourage  migrants from working for you, since they will not have a pathway to residence.   

If your business has no plans to hire migrant workers and does not have a need to retain any migrant employees in the long term through residency pathways, there is likely no need to renew. This may change if, as previously planned, the government makes accreditation compulsory for all employers who hire migrants on any type of temporary visa with work rights, including Student Visas, Working Holiday Visas and Partnership Based Work Visas.  

Talk to us

Our team of expert immigration and employment lawyers have a great deal of experience helping employers navigate the complex immigration process of Accreditation Renewal. We can help to put forward a strong case to INZ that your business can and does meet the requirements for accreditation. Talk to us today.  

Major Work Visa Changes – A Tightening of the Borders

Lavinia Askin

May 2024

Sweeping changes to the Accredited Employer work visa (AEWV) scheme will significantly impact employers and migrant workers.

On 7 April, Immigration Minister, Hon Erica Stanford announced major and immediate AEWV policy amendments 2024, reminiscent of pre-pandemic settings. She noted these changes have been made in response to “unsustainable” net migration, to reduce migrant exploitation, put New Zealanders “to the front of the line where there is a skill shortage”, and attract highly skilled migrants. It follows a review of the AEWV scheme released in February 2024, which highlighted a number of issues and failings with the scheme.

There has been a recalibration of immigration settings at each of the three steps in the AEWV scheme:

  • At Step 1 (Employer Accreditation) employers will be required to meet additional obligations as an accredited employer, and if not, face new consequences or penalties.
  • At Step 2 (Job Check) employers must perform appropriate candidate checking. They must also undertake additional labour market testing requirements for roles that Immigration New Zealand (INZ) deems to be low-skilled or low-paid.
  • At Step 3 (Accredited Employer Work Visa) it will be harder for applicants to obtain a visa, particularly in ‘low-skilled’ or ‘low-paid’ roles. In these roles, a visa will be granted for a shorter duration, with a shorter maximum continuous stay in New Zealand.

These policy changes are largely targeted at ANZSCO Skill Level 4 or 5 roles. For example: Labourers, Farm Workers, Carers, Nursing Assistants, Hospital Orderlies, Mobile Plant Operators, Seafood or Meat Processing workers, Sales Assistants, Domestic Cleaners, and Kitchenhands. Accordingly, it is critical that job descriptions are carefully and accurately drafted to ensure roles are classified correctly by INZ. This will avoid unnecessary additional hurdles for employers and prospective migrant employees.

While these changes largely impact roles that INZ considers to be low-skilled or low-paid, the effects will be felt by all employers and visa applicants. We expect INZ to be reviewing applications with increased scrutiny, and processing times to increase significantly across the board.

What’s new for employers – additional hoops to jump through

INZ has moved away from a high-trust system, where for the most part, employers could simply declare they had met policy requirements. Moving forward employers will need to:

  • Meet new advertising and hiring requirements for most occupations at ANZSCO Skill Level 4 or 5. This includes listing the role for 21 days (increased from 14 days) and engaging with Work and Income.
  • Take reasonable steps to ensure applicants are suitably qualified and meet skills and experience threshold before supporting an AEWV application. For example: sighting evidence of work experience/qualifications, trade testing, and job interviews.
  • Ensure that the current or prospective migrant employee meets INZ’s “minimum skill threshold” and English language requirements (where applicable) – see below.
  • Notify INZ if an AEWV holder’s employment ends more than a month before their visa expires.
  • Continue to provide migrant employees on AEWVs with at least 30 hours of work per week, otherwise accreditation status can be revoked.
  • Carefully plan ahead – Employer Accreditation, Job Check and AEWV applications processing times are likely to increase significantly.
  • Have robust compliance systems and be prepared for post accreditation checks and inspections.

What does this mean for migrant workers?

We anticipate that there will be many migrant workers who will no longer be eligible to apply for an AEWV, following INZ’s changes. This will include those who have already been offered employment and issued a job token by their prospective employer. In particular:

  • In addition to the work experience/qualification requirements specified in a Job Check, applicants will need to meet the new “minimum skills threshold” by providing evidence of:
    • At least three years of relevant work experience; or
    • A relevant qualification at Level 4 or higher on the NZ Qualifications and Credentials Framework.
  • When applying for an AEWV to work in an ANZSCO Skill Level 4 or 5 role (unless an exemption applies), applicants will now:
    • Need to meet English language requirements.
    • Receive a visa for a maximum duration of two years (reduced from five years) and have a reduced maximum length of time they can stay in New Zealand (reduced from five years to three years).

These are significant changes

While the AEWV scheme is employer-led, it is becoming increasingly difficult for employers to navigate continuously changing requirements and obligations. It is critical that employers gain a thorough understanding of these changes prior to recruiting or renewing visas for migrant workers to avoid unnecessary delays, declines, or employer accreditation revocation.

It will also be important for migrant workers to check their visa eligibility in light of these policy amendments, and consider alternative visa pathways to work in New Zealand where applicable.

Talk to us

Pitt & Moore is here to help if you need advice or assistance understanding these amendments to the AEWV scheme. Please do not hesitate to reach out to our immigration team for expert guidance on your specific circumstances. We offer an initial free 15-minute consultation for related immigration matters.

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 that 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 the 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 the 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 that 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 the 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 the proper process, creates 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 provides 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. 

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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.