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Visa variations: what you need to know about changes to temporary work visas

05 Aug 2020

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By John Mezger, Senior Solicitor, Aspiring Law

Migrants in New Zealand on temporary work visas have been badly affected by the COVID-19 crisis. Thousands of migrant workers in Central Otago and around New Zealand have been left without work or income.

The situation is compounded by the fact that many migrant workers can’t leave New Zealand and return home due to border restrictions, and many of them can’t stay in New Zealand because their visa has expired or is about to expire.

At the start of July, Immigration New Zealand announced three significant changes to temporary work visas in New Zealand to try and address the situation.

1. Six-month extensions for employer-assisted temporary work visas

Migrants in New Zealand on an employer-assisted temporary work visa due to expire between July and December have been granted an automatic six-month extension. An employer-assisted temporary work visa includes:

  • Essential Skills;
  • Work to Residence;
  • Special and Skilled work visas for China, Indonesia, South Korea, Philippines and Vietnam; and
  • Special category work visas for Japanese Interpreters and Thai Chefs.

This extension includes those who were previously granted an extension to September 25 under the epidemic management notice.

However, there are some exceptions. The extension does not apply to those who were on working holiday visas and had their visas extended to visitor visas. Neither does it apply to any partner or dependent child who holds a visa based on their relationship with the work-related visa holder.

2. Changes to the stand-down period

The stand-down period for lower-skilled workers in New Zealand was generally for a period of 12 months. That meant that the worker would need to be outside of New Zealand for a year before they could be granted a new work visa.

Under the new regulations, the introduction of the 12-month stand-down period for lower-paid workers who have had their employer-assisted work visa extended will be delayed.

Workers will be able to stay in New Zealand and work for the same employer in the same occupation and location for up to six more months, in line with their visa extension. The stand-down period still applies if a worker applies for another lower-paid Essential Skills work visa including to work for another employer or change location in a lower-paid role.

If a migrant on a visa is looking for a new role or the conditions of their employment has changed, they will need to apply for a variation of conditions or a new visa depending on their circumstances. If applying for a new Essential Skills visa, the employer will need to demonstrate they have made genuine attempts to recruit and train New Zealanders before they can employ a migrant worker.

3. Essential Skills work visas reduced

The duration of new lower-Essential Skills work visas will be reduced from 12 to six months. This change will affect all new lower-paid Essential Skills work visa applications lodged from 10 July 2020. Applications received before 10 July will still be granted a 12-month visa if approved.

Implications for employers and employees

Under the new regulations, 16,500 visa holders whose visas were due to expire by the end of 2020 will have their temporary work visas extended by six months. The law changes are designed to provide some relief for migrant workers and certainty for employers in the short-term as the New Zealand labour market adjusts to the impact of COVID-19.

It is imperative for both employees and employers to know the type and specific conditions of their visas. The general provisions of the Immigration Act 2009 still apply. If an employee doesn’t hold the right visa or their circumstances have changed, both parties can face serious consequences for being in breach including deportation, fines or even worse.

We would suggest that all employers double-check their employees’ status and ability to work in New Zealand, especially in situations where travelers were on working holiday visas and their visas have recently expired. In these circumstances, Immigration may issue visitor visas rather than extend work visas, which means that employees no longer have the right to work in New Zealand. So, it’s always best to check.

Visa View is a valuable tool provided by Immigration New Zealand. This service allows registered New Zealand employers to check whether a person who is not a New Zealand citizen is allowed to work for them in New Zealand.

It also allows registered employers to check New Zealand passport information provided by the jobseeker so as to confirm New Zealand citizenship and entitlement to work in any job. This is not only helpful for managing the working rights of existing staff, but also when considering hiring migrant workers.

Immigration New Zealand is processing thousands of variations to employees’ visa conditions. A typical variation would allow an employee to work for a different employer, or in a different region. At present, these variations can take around two months to process and for many employees this may not be practical since they may already have been made redundant.

Immigration NZ is accepting variation applications on an urgent basis, but the reason for urgency is very limited.

If you have any questions, especially around an urgent variation application, please contact us at Aspiring Law.

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