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Applications under the Essential Skills category

Over recent months we have seen an increase in calls from clients who employ migrant workers.  Their employees are coming up against a stricter approach to the renewal of their Work Visa.  They are being advised by Immigration New Zealand (“INZ”) that their employer’s attempts to recruit New Zealand residents into that particular role have been inadequate.   What has become apparent is that employers are failing to meet the INZ requirements to support their employees in applying for work visas, even where their actions had met the requirements previously.

This change in approach by INZ stems from a perception that employers are becoming increasingly reliant on migrants to supplement the local workforce and in particular, are reliant on extending work visas for their existing migrant employees instead of making genuine attempts to go back to the market and attract New Zealander workers.

An employers view that their migrant worker is highly valued, well regarded or well settled are irrelevant to INZ for the purposes of a visa application. INZ holds the view that migrants will accept any job on any terms and conditions simply because they are both eager and thankful to have work in this beautiful part of the world. The flow on effect is that migrant labour reduces remuneration rates and New Zealanders are being overlooked, even if they are willing to be trained or relocate to the region where the work is being offered. Consequently, INZ have tightened up their visa processing checklist.

Migrants who apply for a work visa under the essential skills category must prove they have a job offer from an employer. If the job is not an occupation on the INZ skill shortage list then employers who have advertised the job in New Zealand and make genuine, but unsuccessful efforts, to recruit a suitable New Zealander for the position can then look to employ migrant workers. The migrant worker can apply for an Essential Skills Work Visa and the employer must provide a completed ‘Employer Supplementary Form’ and supporting information demonstrating their unsuccessful efforts to recruit New Zealanders.

Our Advice

Don’t forget that a temporary work visa is just that – temporary. When a migrant worker goes to ‘renew’ their visa, the employer should treat the application as a fresh application each time.

It is now critical that employers advertise not only locally but nationwide, even where you haven’t previously. Employers should not rely on advertisements placed in local newspapers, bulletins or notices and should recruit at a national level via key newspapers and job search websites such as TradeMe Jobs or Seek. INZ also encourages employers to list the job vacancy with Work and Income which can easily be done by accessing and submitting a form online. Employers should consider listing with a recruitment agency, such as Progressive Consulting, who will do all the time consuming work for you; draft an appropriate advert, advertise through the correct media, screen, shortlist and interview suitable applicants and write to INZ with details and the outcome of the process.

INZ also have a keen eye for advertisements that may discourage potential applicants or that are embellished to link directly to a migrant worker applying for the particular position. Keep the adverts generic and avoid exaggerating qualifications or language requirements and the type and length of work experience expected, unless the expertise is truly attributable to the position and you can justify it.

Unfavourable pay, hours of work and other conditions of employment which could be considered as deterring applicants will also be an instant red flag. Do your research on market pay rates and employment conditions comparable to the position being advertised and provide objective documentation to INZ to validate the terms and conditions of employment if they are called into question. INZ don’t always get it right and national market rates should not dictate regional market rates, particularly in the Otago/Southland region.

From the outset, refer to and ensure the position ‘substantially matches’ the type of work, duties and responsibilities as outlined under the Australia New Zealand Standard Classification of Occupations (ANZSCO) website.  INZ do not like to see a ‘cut and paste’ job description taken from ANZSCO but a true account  of the employee’s daily tasks that is also  comparable to the most appropriate occupation on the ANZSCO list will be viewed favourably.

When it comes to screening and interviewing, shortlist only those applicants suitable for the position and once interviewed, if unsuitable, keep detailed notes of your reasons why and provide these to INZ.

Only lawyers, and licenced immigration advisors can lawfully provide immigration advice so if you do assist a migrant worker with the visa process avoid giving them immigration advice and/or seeking legal advice on their behalf.

If you need more information or assistance, please don’t hesitate to contact us.

Disclaimer: We remind you that while this article provides commentary on employment law topics, it should not be used as a substitute for legal or professional advice for specific situations. We recommend that you obtain legal advice specific to your situation before proceeding and would be happy to help in this regard.
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