Tag Archives: Employer Assisted Visa

How to get a New Zealand work visa

­­­­­­­­­How to get a New Zealand Work VisaIf you’re a skilled migrant applying for a New Zealand work visa, you may feel like the process is a job in itself. Navigating all of the visa requirements, conditions, documentation, evidence, categories, and costs can seem a daunting task.

We’ve made this checklist for you as an overview of the process of applying for a skilled migrant visa. However, we recommend you seek assistance from a licensed immigration practitioner when preparing your visa application form.

You can apply for a temporary working visa in New Zealand if you:

  • have a job offer from a New Zealand employer
  • are coming for a specific work-related purpose or event
  • have a partner already in New Zealand, and you want to join them and work
  • want to get on a working holiday (if you’re between 18 and 30), or
  • have completed higher level qualifications in New Zealand and want to work.

Visas that lead to permanent residence include the accredited employer, long-term skill shortage, entrepreneur work, Pacific access category, and religious worker visas. All visas are available for people who are 55 years old or younger.

If you want to apply for a work visa you will have to provide either evidence of a current full-time job or a job offer and be registered if your profession demands it. You can do this here.

Before you apply

  1. Make sure your job meets the minimum wage and salary threshold. These thresholds were changed in November 2018, so make sure you check our comprehensive list of the changes here.
  2. Check the ANZSCO code and skill level of the job; and check if the job is on a shortage list.
  3. Gather the employer’s documentation including the fully signed contract, you may also need the employer to show evidence that the job was advertised to the local market and could not be filled by an adequate candidate depending on whether Shortage List requirements are met.
  4. Have proof of your identity (with a valid passport and a photo of a yourself taken within the last six months) and good character (with police certificates from countries you’ve lived in for more than five years since you turned 17). You may also need to provide information about your health, by getting medical certificates or a chest x-ray from a doctor approved by Immigration New Zealand (INZ). All documents not in English, should be translated to English by a professional translator. An immigration adviser and/or immigration lawyer can help you navigate the process. If you are not sure who to ask, read our article Immigration adviser vs immigration lawyer – whose help do you need?
  5. Set up a New Zealand Government RealMe account to upload your digital documents for the online application.

Submitting the visa application

  1. Give your application the best chance of success by getting it checked by a licensed practitioner. Our 90-minute clinic (with immigration lawyer Aaron Martin) is the best way to ensure your New Zealand work visa application is approved.
  2. Submit your paper resident application within six months on the form provided by INZ. Fees and processing times will depend on your location and nationality. You can send your application by post or courier.
  3. If necessary, INZ may ask you for more information to grant you a fair chance to obtain your New Zealand work visa. INZ will let you know about your visa status as soon as it’s decided.

After getting the visa

  1. Once you have your work visa, apply for a tax record number, which you can do through the IRD. You’ll have to give this number to your employer once you have it and use it for all your tax matters.
  2. Be aware of your rights as an employee. Check out our article for all you need to know about migrant worker rights in New Zealand.

Once you have all of the above sorted, you will be well on your way to living and working as a skilled migrant in New Zealand.

The application process for a skilled migrant work visa is very expensive. To ensure the best chance of success we recommend you seek professional advice. Our 90-minute Immigration Clinic appointment is an excellent resource that is designed to help make sure you have all you need to succeed in your application. With over 22 years of experience as an immigration lawyer, Aaron can quickly check your application and let you know if you meet the requirements and have all the appropriate documentation. This can save you thousands of dollars.

Find out more about our 90-minute Immigration Clinic here.

If you’d like help with your skilled migrant visa application, or have any other queries, you can contact the office here.

 

Post-study visa changes: November updates

News and information on NZ post-study visas
New Zealand Post-study visa changes came into full effect November 26th 2018. We cover the changes and the implications for migrants and Kiwi employers.

Changes to post-study work visas came into effect yesterday. The most significant change, as discussed in our previous article “Employer Assisted Visas: addressing the unwritten trade off” is the removal of the employer’s company name on the visa. Open visas will take its place, a positive not only for migrants but for local employers as well.

The new visa categories are:

  • A three-year post-study open work visa for those who have completed a bachelor’s degree or higher qualification
  • A one-year post-study open work visa for those studying New Zealand Qualifications Framework level 4-6 and non-degree level 7 qualifications. An additional year is available for graduate diploma students who are working towards registration with a professional or trade body, and
  • A “time-bound” two-year post-study open work visa for students studying level 4-6 and non-degree level 7 qualifications outside Auckland (study must be completed before 2021).

To make sure current tertiary students and post-study work visa holders aren’t disadvantaged, Immigration New Zealand has also introduced the following.

  • Students who held a student visa or were in the process of applying for a student visa to study towards an eligible qualification as at 8 August 2018 can apply for a three-year post-study open work visa on completion of their qualification.
  • Students in this category who have previously had a one-year open post-study work visa can apply for a two-year post-study open work visa on completion of their qualification.
  • Those who currently hold a one-year post-study work visa can apply for a further two-year open post-study work visa.
  • Those who currently hold an Employer Assisted Work Visa can apply to vary the conditions of their visa and remove the occupation, employer, and location restrictions.

These changes will allow migrant students and graduates greater freedom to change jobs and compete on an even playing-field with local candidates. Much of the exploitation of migrants that we have seen in the news is due to the visa restrictions that tied migrants to one eligible employer in order to work and live in the country. Now that migrant workers are not dependent on one employer they are free to find a better role if work conditions and pay aren’t adequate. They will also have more freedom to move to roles more suited to their desired career.

The visa changes mean that future students will need to undertake courses of a much higher calibre to secure work rights after study. In accordance, the educational threshold for entry and the English standard of those coming to New Zealand will be higher. This is a clear benefit for employers as it will make for a greater selection of candidates with higher skill sets. The changes also mean employers do not need to be so involved in an employee’s post-study work visa process, which saves employers time and inconvenience.

All change comes with some uncertainty, but overall these changes will be of huge benefit to both migrants and local employers. Hopefully this will pave the way for other visa categories to be reviewed.

For a full list of changes, have a look at the Immigration New Zealand resource here.

If you want to talk about your post-study visa options, or have any other immigration law concerns, contact the NZIL office here.

All you need to know about migrant worker rights in NZ

There has been a lot in the news recently about migrant employee exploitation, and there seems to be some common themes. As most migrant’s visas are tied to an employer they can often feel trapped, unable to report issues as their lives in New Zealand depend on the linked employer. So what kind of exploitation are migrant workers facing? And more importantly, what can they – even better, our Government – do about it?  We talk to the experts to find out.

Migrant workers in New Zealand face several unique challenges. To find out more we spoke with Aaron Martin of NZIL, employment lawyer Mark Donovan, and Anu Kaloti, founding member of the Migrant Workers Association. All work in areas that help migrants with issues of employment, and all have successfully dealt with many cases of exploitation.

Most major issues that migrant workers face involve exploitation. This usually means the employer is denying the employee their basic rights and entitlements. All New Zealand workers, whether residents or migrants, are entitled to certain rights. Read the full list of rights (in a variety of languages) here:

Employers must include these basic rights and entitlements in their written contract with an employee. But the rights aren’t always put into practice. A migrant on a work visa who wants to live in New Zealand relies on their employer to comply with the rules. Often visas restrict migrants to one particular employer, so a migrant’s fate may be dependent on that sole employer doing the right thing.

 

Migrants are particularly vulnerable to exploitation because if a migrant employee is dismissed or their employer is identified as non-compliant, the migrant’s visa can be revoked. Kaloti often hears of employers threatening migrant workers with “if you don’t do XYZ we’ll get your visa cancelled or report you to Immigration”. She specifies that it is not uncommon for migrants to be verbally and even physically abused.

So, what are the common issues migrant workers face? And what can they do?

1. Wages

Employers must pay migrants a wage specified by the salary band linked to their visa. This wage must be clearly stated on a written employment agreement that has been signed by both parties. Unfortunately, some employers are finding ways around this.

Kaloti explains that often the employer will deposit the correct pay into the employee’s account “so the paper trail is perfect”, only to later demand a portion of that pay be given back. Often this is justified by claiming the employee was in debt to previous loans or training costs. The paper trail is kept clean by asking for the payment in cash or as a bank transfer to a friend or colleague’s account that is then paid back to the employer.

Another common example is hiring migrants under a “two-for-one deal”. Kaloti and the Migrant Workers Association are currently working through such a case with a married couple. The wife is employed by an IT company, which has enabled her to get a work visa. But her employment is on the condition that her husband works for her employer’s other business, an orchard. The wife is receiving the correct salary specified by her visa conditions; the husband, however, doesn’t get paid at all.

If an employee raises these kinds of issues in a public arena, it usually just causes them more grief. “Getting a third party involved can be like putting a fox in a hen house,” Martin says. The Labour Inspectorate works directly with Immigration New Zealand. So, if you report your employer for wage exploitation and you’re in the process of applying for a visa, your case can be denied on the grounds of having a non-compliant employer. This is why, as Martin advises, employees in this situation “usually just shut up and carry on”.

2. Leave and breaks

There are many reports of migrant staff working unpaid overtime or being denied leave or rest breaks. It is easy for an employer to specify the correct hours on a contract, then fail to monitor overtime and keep correct records. Sometimes this can be credited to an overly “relaxed” approach on the employer’s part, but often cases are of a less innocent nature.

Employees can work double the time recorded by an employer but be forced to sign false records in fear of losing their job. Then, if they raise a dispute, the evidence is against them. Employees being denied leave and break entitlements have similar problems providing proof.

If there’s no evidence, it’s can be hard to put together a case. But Mark Donovan offers some reassurance: “Immigration New Zealand and the Labour Inspectorate are alert to the risks around these issues with migrant employers. If the evidence of the employee is only their word and the employer cannot produce any evidence to contradict them, they’re still often likely to be believed as they are putting their life in New Zealand on the line.”

3. Business sold or liquidated

Complications arise for an employee when a business their visa is tied to is sold or liquidated. Sometimes, depending on the conditions of the visa, an employee can apply for a variation. If not, the migrant must submit a completely new visa application.

If the employer has another business, they can offer the employee a new position or a transfer. Martin, having worked on at least four such cases, believes this is an easy fix. If you’re working under an Essential Skills visa, provided the role and the location don’t change, it is likely you will be able to simply apply for a variation. If the role is different or in a new location, Martin says: “Effectively the Work Visa holder has to find another job – but they’re still in a situation of being tied to that employer.”

If a business is getting liquidated, an employee can be out of work without any notice. In some cases, and legally in all cases where a business is sold, notice will be given as specified in the terms of the contract. Immigration New Zealand won’t enforce immediate deportation, but it is imperative employees contact them as soon as they know they’re facing unemployment. Immigration New Zealand can issue a Visitor Visa, which will give the employee up to nine months to find more work.

Unfortunately, many employers don’t want to hire a migrant on a Visitor Visa or an open visa that is due to expire. It can be hard to find an employer willing to work through the gamut of a work visa application, especially if it is only for a short-term role. While it is legal to look for work on a Visitor Visa, it is not legal to actively work. Both parties must be mindful that if a visa’s conditions are not honoured, there can be serious legal implications.

4. Unfair dismissal

Unfair dismissal includes failing to follow a fair and reasonable process, giving less notice than is stated on a written agreement, or failing to provide an adequate reason for dismissal.

Where there is an unfair dismissal, legal action can be taken provided the employee raises a personal grievance with their employer within 90 days of being dismissed. Often disputes of this nature are resolved between the parties in a confidential meeting convened by the Ministry of Business, Innovation and Employment, known as a “mediation”.

Although often straightforward, unfair dismissal cases still can pose a difficult situation for migrant employees. While waiting for a mediation date, or for their case to be considered by the Employment Relations Authority, they will lose their main source of income and no longer meet the visa criteria that keeps them in the country. In a lot of cases, the employer will also unlawfully hold onto the final pay owed to the employee. If the employer has enforced an instant dismissal, or is withholding payout entitlements, the employee is left with no means to pay their rent and basic living costs.

5. Dismissal within the 90-day trial period

Employment agreements can specify a trial period of 90 days or less that allows the employer to dismiss an employee within this period if they aren’t suited to the role. The trial period can be a fairly daunting time for any new worker. For migrants with work visas tied to their employer, it’s not just a job they might lose – it’s their future, and their family’s future, in New Zealand.

This is a hard issue to resolve, as the employer is within their legal rights to dismiss the employee within the period stated on the employment agreement, provided they meet the legal tests for imposing such a trial period. As Martin says: “If you’re dismissed within the 90-day trial period, there’s no way around it other than getting a new job with a new visa or obtaining a Visitor Visa.”

Donovan says that the condition attaching an employer to a work visa is creating many of these issues: “It allows the employer to say ‘Aha! You’re mine!’ and the employee is stuck, even if their wages aren’t getting paid.” Employees avoid seeking legal help or even joining a union from fear of losing their employer and the right to live and work in New Zealand.

Kaloti believes that to reduce exploitation, all work visas should be open. “Tying work visas to an employer is too harsh,” she says.

Martin disagrees that all work visas should be open, but strongly believes most exploitation could be remedied with a simple policy change. “When a migrant raises an issue or needs to leave their job due to exploitation, instead of issuing a Visitor Visa we should give them a 6-month open work visa so at least they can apply for other jobs on a better footing,” he says. A Visitor Visa gives a migrant more time in the country, but they can’t legally work. And the application process for a new work visa once they’ve found an employer can take some time. “The government says it’s trying to protect migrants from exploitation,” says Martin, “but they sadly don’t give a hell of a lot to assist people in those circumstances.”

It’s important that migrant employees know they have the same rights as a resident employee. If you’re a migrant employee and a dispute happens at work, the Citizens Advice Bureau is a good place to start for free advice. They will likely refer you to the Labour Inspectorate or, if it is a personal grievance, the Employment Relations Authority. Alternatively, an employment or immigration lawyer can provide individual support and legal advice.

Kaloti believes that more and more migrants are beginning to speak out about exploitation. Workers who are concerned about jeopardising their visa if they seek legal help could consider a union for support and advice. Kaloti recommends migrants join a union relative to their area of work or one of several unions specific to migrants such as the Migrant Workers Association of Aotearoa, Migrant Action Trust, or the Indian Workers Association.

For more information about resolving workplace issues, check out this Employment New Zealand resource page

If you need help with an Employment or work related issue, contact Mark Donovan here

If you need help with an immigration related issue, contact NZIL here

For a list of work unions available in New Zealand, have a look on the Trade Unions of New Zealand web page here.

Employer Assisted Visas: addressing the unwritten trade-off…

Employer Assisted Visas

Last month it was announced that changes are being made to the conditions of the Employer Assisted Work Visa. If Kiwi employers allow for it, these changes won’t only be a win for new migrant graduates, protecting them against exploitation, but for Kiwi employers as well.

Upcoming Immigration law changes in November mean holders of Employer Assisted Work Visas will no longer have to name their employer on their visa. Currently, when an employer is noted on a visa it is a condition of the visa that the holder remain in that employment with that employer for the duration of the visa.

This change will allow a new cohort of graduating international students to secure work rights for a three-year period to work for any employer.

This will give those seeking work experience relevant to their qualification a much greater chance in gaining meaningful employment that not only benefits them but also New Zealand. It will hopefully stop the gross under-utilisation of skill and talent we see where young international students who have completed good tertiary-level qualifications end up in jobs well below their skill level, often being paid very poorly.

Having a work visa that permits employment with any employer evens the playing field. These migrants can now fully participate in a free labour market and move to better positions commensurate with their skill level if new opportunities arise. This will prevent many becoming captive to unscrupulous employers who underpay for the skill level of the role being performed as some form of unwritten trade-off for supporting visa applications.

I hope this change will also encourage more New Zealand employers to consider hiring from this group of ambitious young professionals. Employers will hopefully no longer be frightened off by visa expiry dates and the perceived complexity of becoming involved in immigration matters.

If you’re wondering how this will affect your current Employer Assisted Work Visa, contact NZIL

If you’d like to read an Employer Assisted Work Visa success story, click here.

If you’d like to know other benefits of hiring a migrant, check out our last article.

For other migrant information check out our Migrant Resources.

If you’re thinking about hiring a migrant, read our Employer Checklist