Government plans to overhaul the employer-assisted work visa

Government plans to overhaul the employer-assisted work visa

Immigration Law expert Aaron Martin reviews and explains the changes that the government proposes to the Employer assisted work visa due to be implemented over 2019-2020.

At the end of last year, the Government released a consultation paper for changes to the employer-assisted work visa. This is the class of work visa issued when the applicant has an offer of employment and the employer proves they cannot find a local to do the job.

These changes will make it more complicated for an employer to recruit a skilled migrant if they don’t understand the new requirements. Employers in Hospitality, construction and IT services need to prepare themselves now, if they plan to recruit from the skilled migrant pool in the next 24 months.

Changes aim to create an employer-led simplified work visa system. Currently there are six work visa categories: essential skills, approval in principle, talent (accredited employer), work to residence – long term skill shortage list, and Silver Fern visas. The new framework will replace this multitude of application types, rules, and processes with a single pathway.

Conceptually the proposal amalgamates and transforms elements of the original six categories such as visa approval in principle, accredited employer processes, and labour market testing requirements.

Under the new proposals, no labour market testing would be needed for jobs that meet a higher pay threshold. This is similar to the current system of work-to-residence visas issued on the basis of an applicant having a job with accredited employers.

Labour market tests also would not be required for higher-skilled roles that are on regional skill shortage lists. As part of the proposals, new regional lists will be released in mid 2019. These are intended to be better tailored to the needs of the regions than is currently the case.

The new framework has three key parts:

1. The employer check

Employers who want to recruit staff from overseas will have to gain accreditation with Immigration New Zealand (INZ).

The accreditation process pre-clears an employer in terms of satisfying INZ that the employer:

· is compliant with labour laws

· has high-practice HR processes and policies and is financially stable to offer employment

· has a commitment to increasing worker benefits/pay.

Employers will need to present evidence of financial performance, have a commitment to training and upskilling, and show they put upward pressure on wages and conditions.

The type of accreditation will depend on the needs of the employer. The "standard" accreditation will last for 12 months and is intended for employers who wish to hire expatriate workers without offering a pathway to residence. The "premium" accreditation is for those who wish to offer a pathway to residence through employment with the company.

Obtaining accreditation (of whatever type) will be mandatory for all employers. Those who employ six or more expatriate workers within a 12-month period will be made to seek "premium” accreditation. For employers who employ five or fewer expat workers in a 12-month period, “premium” accreditation will be voluntarily.

2. The job check.

This is the labour market test stage of the work visa process. Labour market tests will not be required for jobs above a certain wage threshold or on a regional skill shortage list.

All other roles will undergo labour market testing, where the employer will have to satisfy INZ they have made genuine attempts to recruit locally. But the proposal to increase the wage for the work-to-residence pathway for “premium” accredited employers to $78,000 or $37.50 per hour does seem high.

Given the restrictive nature of the requirements currently in force for the skilled migrant residence visa, the Government will need to ensure it does not create a "hole" whereby valuable workers cannot transition over to residence from work because of pay rate alone.

Employers will need to demonstrate they have training systems to achieve knowledge transfer from migrant workers to local staff and also show there are systems in place to avoid their business becoming dependent on migrant workers.

The expectations of bureaucracies can often be at odds with the reality of private-sector business in this area.

3. The migrant check

This is the actual visa application.

There is a suggestion that capability checks (the assessment of whether the visa applicant is suitably qualified to perform the job) should be undertaken by the employer. My intuitive response is that this is unlikely to happen, given concern within INZ about the potential for abuse.

INZ needs to understand that except for situations where there is abuse and collusion to commit a fraud in the border control area, businesses only hire people they believe can do the work and after they have conducted appropriate checks to ensure that is the case.

Of course, these checks may still result in mistakes being made and an employer hiring someone who has oversold their ability. But the 90-day trial under current employment law and the facilitation of visitor visas to those who are dismissed within that 90 days protects the integrity of the system in these cases.

A warning to Employers to become accredited before it is too late...

If accreditation is mandatory, there will be a significant influx of applications into INZ. Businesses will want their applications processed quickly so they can recruit the talent they need in their organisation.

But INZ has had a large budgetary shortfall and is unable to process its current applications quickly due to high volumes. It does not have the resources to deal with more work.

This change represents a resource issue that will need to be addressed to make the process workable for employers, especially if the Government wants this process to be "employer-led".

I advise any employer who knows that they will be recruiting skilled migrants to apply to become accredited now under the existing system and avoid the backlog at INZ that will come once the new visa criteria and processes are in place.

Aaron Martin – Principal Immigration Lawyer at New Zealand Immigration Law
Aaron Martin is one of New Zealand's most highly regarded and experienced immigration law practitioners. He has extensive experience assisting individuals, SMEs, and large multi-national corporate clients.
He has experience in general legal practice with over 20 years of experience and a thorough working knowledge of relevant tax law and commercial issues facing investor category applicants and migrants wishing to establish businesses in New Zealand.

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