Please be advised that INZ has started to process Essential Skills work visa applications – and that they may ask for more information, as well as ensure the availability of New Zealanders remains unchanged.
When INZ asks for this information, you may need to contact your employer for details about the sustainability of their employment and the availability of New Zealanders.
Furthermore, an advisory to immigration offices on labour market testing and sustainability assessments for Essential Skills work visa applications has been issued today. The points covered are as under:
Point 1. Immigration instructions now require an immigration officer to be satisfied that, at the time the application is assessed, there are no New Zealanders available to do the work offered.
Point 2. Immigration officers may require updated information when assessing applications that the employment offer remains valid, and continues to be sustainable, and that there remain no New Zealanders available regionally and able to do the work on offer.
Point 3. Concerns that New Zealanders may be now available, or that employment may not now be genuine and sustainable will be considered potentially prejudicial information (PPI) and applicants will be given an opportunity to comment and provide further information before a decision is made.
Point 4. An applicant may be required to seek further information from their employer regarding the possible increased recent availability of New Zealanders, and confirmation that the employment remains valid, and provide any other relevant information they believe addresses the concerns raised.
These changes have been done as COVID-19 has greatly affected New Zealand’s economy and job market, and it’s vital to consider the current employment environment.
FAQS BY INZ
LABOUR MARKET TEST
Why am I being asked for updated information about the availability of New Zealanders?
Under current immigration instructions, INZ needs to balance facilitating businesses getting the workforce they need, and protecting the employment opportunities of New Zealanders.
COVID-19 has had significant impacts on New Zealand’s job market, and unemployment rates are rising. Assessing applications only on information provided before the impacts of COVID-19 does not align with the requirement to protect the employment opportunities of New Zealand. This means that INZ needs to ensure that no New Zealanders are available to do the work being offered, before visas are granted to any migrant employees.
Employers aren’t required to re-advertisee the vacancy, but they may need to provide updated information, to the best of their knowledge, that there are still no New Zealanders available in this current job market. Employers may choose to re-advertise as part of providing further evidence.
The employment offered to Essential Skills visa applicants needs to be for real and genuine work, for at least 30 hours per week. Essential Skills work visas are granted for a period of either 12 months, 3 years, or 5 years, and consideration needs to be given to whether the work being offered is going to remain available for the entire duration of the visa. It’s likely that New Zealand’s economic situation is going to continue to change, and employers must be confident in their ability to continue trading (to the best of their knowledge).
The wage subsidy provides support for a business that has experienced a reduction in revenue and doesn’t necessarily mean the business won’t be sustainable going forward. Employers receiving the wage subsidy can still hire Essential Skills work visa applicants.
If your business situation changes then you must go through normal employment law processes. Any work visas holders who are made redundant, employment if they wish to work and remain in New Zealand, they would then need to obtain new employment and either obtain a new work visa or vary their existing visa to begin that new.
INZ considers a range of factors when determining whether any suitable New Zealanders are available for the work. This includes, but isn’t limited to, things like:
Due to the complexities of the situation and INZ’s current limited visa processing capability, we’re unable to give exact timeframes as to when these applications will be processed. However, we aim to do so as quickly as possible given the current constraints on visa processing resources.
Current immigration instructions require employers seeking to employ an overseas worker for an occupation with an ANZSCO skill level of 4 or 5 are required to obtain an SMR from the Ministry of Social Development (MSD). An SMR details if any New Zealanders are available to work in the role being offered to the migrant worker. One can only be issued to employers who have advertised their vacancy with Work and Income New Zealand, where no suitable New Zealanders have been found.
No New Zealanders are considered available if the job offered is on one of the skills shortage lists, and the applicants meet the qualification and work experience required by the list for that particular job.
There is no labour market test for applications under the Skilled Migrant Category (SMC).
To be granted an Essential Skills work visa, the applicant must be paid the market rate for the role. If you are unable to pay them the normal rate for the role, you should provide evidence that either the market rate for the role has changed or reasons why the visa should be granted despite the market rate not being paid. These applications will be assessed on a case-by-case basis. The wage or salary paid must also always be above the minimum wage. The pay offered may also affect the duration of the visa and whether the visa holder can support visas for family members.
Decisions around changes to Immigration Instructions are made by the government. INZ and the wider Ministry of Business, Innovation and Employment are working through possible options for longer-term solutions and providing advice to the Minister of Immigration. This is a rapidly evolving situation and we’re unable to give a timeframe at this stage. But we will keep employers informed and provide more information as decisions are made. In the meantime, INZ will continue to process visas according to current Government policy as expressed in immigration instructions.
Employers who are unable to recruit New Zealanders for a vacancy due to COVID-19 restrictions should be able to provide evidence of particular barriers where this is the case.
Essential Skills work visa applications will be assessed in date order.
Essential Skills work visas are granted for the duration that the employment is offered – for the periods of 12 months, 3 years, or 5 years (depending on the skill level of the role). Employment law may determine what reasons are considered sufficient for offering employment for a fixed term; you may wish to seek legal advice on your options.
Ref – https://www.immigration.govt.nz/documents/visa-paks
Vandana Rai is a Senior Licensed Immigration Adviser and has built a reputation around her rare set of skills, which could be considered ideal for her legal profession.
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