Stricter enforcement of labour market test introduced
Recently new guidance has been issued to immigration officers processing work visas in regard to assessing the sustainability of the employer and labour market tests. We discuss what these changes will mean for employers and migrant applicants.
A labour market test has always been a requirement for essential skills work visas outside those relating to skills in demand. Employers need to demonstrate that a role advertised cannot be filled by a New Zealand applicant before a migrant is granted a work visa. With the Covid 19 pandemic affecting many workplaces, the government is now making this Labour market test more stringent with its new guidelines.
“Labour market tests must be satisfied at the time the application is assessed by an officer.”
What this means for employers:
If your potential worker applied for a work visa with advertising that was done several months ago, when the processing starts by Immigration, they can seek updated evidence no New Zealanders are available to perform the work. But officers cannot assess on the basis of anticipated or expected changes to the labour market that may occur in the future.
For example, if work visa application was filed March with advertising done in February for example, the officer can ask the employer for updated information.
Officers can not specifically require an employer to re-advertise, but an employer may choose to do so if the officer has information that indicates there are locals available to perform the work. In that case, they must set out the basis for their reasoning that the labour market testing information needs to be re-visited. It is highly likely that the Ministry of Social Development and Immigration New Zealand will be collaborating closely with each other and sharing labour market information.
It is clear that immigration officials will ask for detailed information about the recruitment process that was followed and require detailed explanations of why local candidates were unsuitable by reference to the qualities (experience and qualifications) necessary to perform the role.
Any advertising conducted by Trademe or Seek will require evidence to show views and applications made.
Employers cannot use the excuse the candidate did not want to do the work for the wages or salary that was on offer. Nor can they use the excuse the applicant (if an existing employee seeking a new work visa) is already a known quantity and familiar with the business.
The officer can also ask for evidence to confirm the job is:
- Still valid; and
- Sustainable over the duration of the visa (i.e. the business will be financially viable over the next 1-3 years)
Receiving the wage subsidy is not considered indicative of a lack of sustainability.
If you need help or advice navigating the immigration rules for hiring a migrant worker contact our office to speak to one of our expert immigration lawyers.
Employers supporting work visas made by existing staff need to prepare their side of the work visa application carefully. Care is going to be needed in the following areas:
- The wording of the advertising
- How the vetting of candidates is conducted and documented
- The presentation of the recruitment process
- The presentation of the reasons for discounting any local candidates and why the selected candidate was best qualified for the position
Need guidance? we can assist employers by:
- Assessing whether the person you want to employ has the capacity to secure a visa, and then secure residence over the longer term. (This second aspect is particularly important – there is no point in recruiting from overseas if your hire won’t be able to make a long-term commitment to your organisation)
- Review whether your job advertising and local labour market search will be acceptable to Immigration New Zealand
- Review the terms and conditions of the employment agreement to ensure they are within the market standard
- Guide you in regard to the documentation needed for the application
- Guide your work visa applicant as to the documentation needed for the application
- Make the work visa application on behalf of the new hire
- Assist you and your work visa applicant in responding to any concerns expressed by Immigration New Zealand during the processing of the application
For practical advice and information contact our office to speak to our immigration law team.