Tough Stance on Migrant Visa Applications | Pitt & Moore, Lawyers in Nelson

Tough Stance on Migrant Visa Applications

If you’re a business that employs, or is planning to employ, migrant staff you’ll need to ensure your job descriptions and employment contracts meet the detailed requirements of legislation and Immigration New Zealand (“INZ”) instructions.

Many employers and migrant applicants for the Essential Skills Work Visa are getting turned down by INZ because they haven’t correctly drafted the job description with the result INZ say the job is not a substantial match to the ANZSCO code claimed by the employer.

This tends to be because the employer hasn’t had legal advice from an Immigration lawyer and the job description doesn’t support the ANZSCO skill level claimed.

The consequences of INZ deciding the job is a lower-skilled job than is being claimed can be significant.

A mid-skilled classification allows migrant workers to have a three-year visa with the option to renew the visa without having to leave the country and to support visas to allow their partner and children to live with them. Employers are finding that jobs they claim to be mid-skilled at ANZSCO skill level 1, 2 or 3 are being reclassified by INZ as ANZSCO skill level 4 or 5. These jobs will be deemed “lower skilled” unless the migrant employee is being paid $36.44 or more an hour. This is very serious for both the employer and the migrant employee. 

Employers and their migrant employees are under incredible pressure to accept INZ’s reclassification at ANZSCO skill level 4 or 5 even where the validity of that reclassification is questionable. The alternative is to risk having the Visa Application declined. 

The consequences of accepting an INZ reassessment at ANZSCO skill level 4 or 5 are that INZ may demand that the employer provide a Skills Match Report from Work and Income within a very limited time frame, sometimes just a few days. 

A low-skilled classification means the migrant employee can only obtain a 12-month work visa that will require annual renewal up to a maximum of three years. After three years, they need to leave New Zealand for a year and reapply after that year if they wish to return on another Essential Skills Work Visa.   

The low-skilled classification also means the migrant employee is not permitted to support dependent family for Visas. This is not good for employers, as the migrant employee may choose to walk away from the job.

The current income thresholds for each category are to increase on 26 November 2018. Employers need to be aware of those changes, as Essential Skills Work Visa Applications lodged after new income thresholds come into effect will need to meet those new thresholds, even if the employee was recruited when current income thresholds applied and an Employment Agreement was signed on those terms.

Essential Skills Work Visa Assessment Key Points

  • Job Descriptions and Employment Agreements must be drafted so they are a substantial match to the correct ANZSCO code.   

  • Get expert immigration/employment advice when preparing these documents.

  • Take careful note of the hourly rate income thresholds for a particular skill-band. If hourly pay rate falls below the threshold the employer can be considered in breach of immigration law.

Talk to us

For more information contact our Immigration Team.

Disclaimer: This article should not be used as a substitute for legal advice tailored for your specific circumstances.

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Mike McMellon

Position: Partner
DDI: +64 3 545 6710