New Zealand: Immigration Alert - Employers and migrant work visas

On 30 March, Immigration New Zealand (INZ) changed its labour market check policy.

Why is there a labour market check for visas?

The labour market check is in place because INZ needs to check that no New Zealanders are missing out on a job, before giving a work visa to a migrant to do that job.

What is the labour market check?

The labour market check means showing that there are no "suitable New Zealand citizens or residence class visa holder workers who can take up the work on offer".

It also means showing that there are no "suitable New Zealand citizens or residence class visa holder workers who can readily be trained to do the work on offer".

Are there any exceptions?

Yes, there are a few exceptions to the labour market check requirements.

The most common is for partners of New Zealand citizens or residents. They don't need to prove that there are no New Zealanders available to get a work visa.

Also, applicants who meet with the skill shortage list requirements do not have to demonstrate that there are no New Zealanders available for the job.

Also, as we mentioned in an earlier article, there is currently an exception for Queenstown employers.

What is the recent change?

INZ has now defined what it means by "suitable New Zealand citizens or residence class visa holder workers who can take up the work on offer".

INZ has also defined what it means by "suitable New Zealand citizens or residence class visa holder workers who can readily be trained to do the work on offer".

The definitions say that an employer can identify particular qualifications, work experience or skills needed to perform the role, as well as other competencies, such as a drivers licence, fitness requirements, or passing of health or drug tests. Then if, despite advertising, no New Zealanders are available with those requirements, and there is also none available who could be trained by way of some on-the-job training to do the job, then it is likely that INZ will agree that the labour market check requirement has been met.

Does this make it easier to recruit from overseas?

The qualifications, work experience, skills and competencies must be necessary to do the job. Also, the requirements must appear to be reasonable to INZ.

Therefore, an employer cannot avoid employing a New Zealander by stipulating requirements in an advertisement that are not necessary for the job.

What does this mean if I want to recruit a migrant?

If you want to recruit a migrant worker, then you may need to demonstrate that you have tried but have been unable to find any New Zealanders who can do the job or who could be readily trained to do the job. This is unless he or she is excepted from the labour market check requirement.

When demonstrating that you have tried to find suitable New Zealanders, you are likely to need to show that you have advertised the job. In Canterbury, this is likely to include listing the job with the Canterbury Skills & Employment Hub.

Also, when you complete the Employer Supplementary Form to give to the migrant, you may need to explain why any New Zealanders who applied were not suitable or could not be readily trained to do the job.

If you have stipulated particular qualifications, work experience or skills, you may need to explain why these are necessary. You may also need to explain why any New Zealander could not be trained, with some on-the-job experience, to do the job.

Can I get help with all of this?

Yes. Our Immigration Team specializes in helping employers and their employees through the work visa process. We can help with checking that a job advertisement is likely to be suitable for supporting a work visa application, if no New Zealanders come forward.

Please feel free to contact the head of our team, Nicola Appleton, on 03 335 3480 to discuss.

Amendments to the Immigration Act 2009

Last week, the Immigration Act Amendment Bill passed its third reading in parliament. It will become law very soon. In fact, it is likely to be law by the time you read this.

INZ will have new powers that will directly affect employers. There are also new penalties that employers should be aware of.

The law strengthens Immigration Officers' powers to enter employers' premises to search for wage and time records and other documents, so as to check that the employers are not employing unlawful workers. Therefore, if you have not already done so, check that all of your employees are working lawfully. INZ has recently successfully prosecuted its first employer, here in Christchurch, for employing an unlawful worker. INZ is just awaiting the Court's decision in respect of the sentence. This could be up to $10,000.

The amended Act also now allows for employers to be charged with exploitation of migrant workers, even if the workers are here lawfully. For example, an employer could be charged under this section if a migrant worker is not paid in accordance with New Zealand's employment laws. The maximum penalty is five years imprisonment or a $100,000 fine, or both.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.