Exclusive: tougher times ahead for migrants! Immigration lawyer models a timeline, with major implications for employers and employees!

How will immigration policy develop amid the global pandemic? When will New Zealand reopen skilled migration? Will salary thresholds keep rising? These questions weigh on the minds of tens of thousands of migrants. Last week, Immigration New Zealand finally announced a series of new immigration policies, making major changes to requirements for employers and employees. Today, we have invited prominent New Zealand immigration lawyer and former immigration officer Sonny Lam to explain what employees and employers need to watch for under the new policies, and the challenges they will face. 

We understand that this reform primarily sets the implementation timetable for the new work visa policy proposed in 2019, merging the six existing work visa categories into one. Applications for the new work visa will open on 1 November 2021.

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These six work visa categories will merge into one

1、Essential Skills Work Visa

2、Essential Skills Work Visa — approved in principle

3、Talent (Accredited Employer) Work Visa

4、Long Term Skill Shortage List Work Visa

5、Silver Fern Job Search Visa

6、Silver Fern Practical Experience Visa

The reform will shift the process from being migrant employee-led to employer-led. Employers recruiting temporary employees and helping them apply for employer-sponsored work visas will need to complete the following three steps:

 

1. Employer check:

The Employer Check primarily examines whether the employer complies with New Zealand employment and immigration law, and has sufficient resources to hire overseas employees, among other matters. 

The main categories are standard accreditation, high-volume accreditation and labour-hire company accreditation. Only accredited employers can employ migrant workers on employer-sponsored work visas. 

Standard employer accreditation: May sponsor no more than 5 applicants;

High-volume employer accreditation: May sponsor 6 or more applicants, with very demanding requirements across all aspects of the business.

 

2. Job check:

This confirms that the job's pay and other conditions, and the labour market requirements, meet the criteria. For example, pay levels, location classifications (remote, urban or special areas), and whether the industry has a labour shortage will affect the applicant's work visa duration and the difficulty of applying.

 

3. Employee check:

This checks the employee's qualifications, identity, character and skills, among other matters. Migrant employees can apply for a visa only once their employer is accredited and the job has passed its check.

 

Key dates employers and employees need to know under the new policies:

Essential Skills, WTR LTSSL and WTR Accredited Employer work visa applications will close on 31 October 2021.

The New Accredited Employer requirements will take effect on 1 November 2021.

Applications under the Current Accredited Employer system will close on 30 June 2021.

Visa categories unaffected

RSE accreditation is unaffected.

Partnership work visas are unaffected.

Post-study work visas are unaffected.

 

Important changes employers and employees need to know:

1. Changes to employee work visas:

For employees, the current work visa application system will close on 31 October 2021. It is important to note that you can apply before the following month/day deadline: 10/31 under the existing employer-sponsored work visa policy. Once the following year/month/day deadline has passed: 2021/10/31, the new policy will apply.

 

2. Changes for employers:

(1) The new employer accreditation system will begin on 1 November 2021. Employers already accredited will also need to reapply under the new system.

(2) Employers intending to support more than 5 employer-specific work visa holders will need to apply for high-volume accreditation, which has stricter standards.

(3) In 2021, from late September, employers can begin new applications through the new system (INZ will confirm the actual date). Employer accreditation (current version) 

(4) Employers can still apply for accredited employer status before 30 June 2021.

 

Key policy points

1. If you want to apply for a Work to Residence visa but have not yet done so, you must apply before 31 October 2021.

2. If your employer wants to sponsor someone for a Work to Residence visa but has not yet applied for employer accreditation, they must submit that application before 30 June 2021.

3. Take particular note: if your work visa expires within the next 12 months, you should consider applying for a visa extension immediately.

 

Immigration lawyer discusses three major issues employees and employers will face under the new policies

1. A short transition period:

The new accreditation system will begin on 1 November 2021. Meanwhile, the Essential Skills work visa system will close on 31 October 2021.

For example, my open work visa expires on 24 November 2021, and I want to apply for another visa. If I apply before 31 October 2021, I remain eligible for a work visa under the current categories. An interim visa issued when applying to move from an open work visa to a work visa does not allow work. (Moving from an open work visa to an employer-specific work visa results in an interim visa without work rights.)

However, if I apply after 1 November 2021, I will be eligible for a work visa only if my sponsoring employer is an accredited employer.

Employers can apply for accreditation under the new system only in the following year/month: 2021/9, after the latter part of that month. This effectively leaves a month between the end of month 9 and the beginning of month 11. Therefore, if my employer has not obtained accreditation before my work visa expires on the following year/month/day date: 2021/11/24, I will be unable to apply for a new work visa. 

Unless INZ is exceptionally efficient and fast, it will be impossible for all employers to obtain accreditation under the new system within 1 month. I also note that this year's Labour Day public holiday falls on the following month/day date: 10/25. In my experience, whenever there is a public holiday, many people's productivity drops in the weeks before and after the long weekend.

Unfortunately, everyone will need to apply at the same time during this period, making it impossible for all employers to gain reaccreditation within a month.

 

2. The new application system will cause a “traffic jam”

With limited time available, many employers will want to apply for employer accreditation as soon as possible in 2021, during September. INZ will not have enough case officers to handle the increased workload.

“I predict employer accreditation will face an enormous, slow-moving “traffic jam”。This is because INZ requires all existing accredited employers to reapply under the new system. The system is also new, and immigration officers will need training in it. In product management, these are called ‘bugs’. I expect the system to have many problems at that point,” Sonny said.

INZ has been unreliable over the past 6 years, and there is no reason to expect its performance to be any different.

 

3. Slow processing will leave many applications

unfinished by the deadline

Sonny said the substantial accreditation documentation would require employers to do considerable extra work and could take longer to process.

“If your employer employs more than 5 employer-specific work visa holders, its accreditation process may take longer. Immigration staff will also face more complex cases, and approval could even take 6 months or longer.”

“Under immigration procedural fairness requirements, if an immigration officer has concerns about an application, they must give the applicant an opportunity to review and consider those questions and concerns. This is known as the PPI process, involving a letter raising concerns, with 5 to 10 working days allowed for a response.

 

4. Lawyer models an “application timeline”，with major implications for employers and employees!

To help everyone understand more clearly the time pressure the new immigration policies place on employers and employees, Sonny has modelled a timeline. In this scenario, every task must run at maximum efficiency, with zero delays, for the work visa application to be submitted on time.

Sonny said these modelled timeframes could slip in real life and in New Zealand's business environment. However, employers and employees face a more realistic timeframe: because all existing employers need to apply for accreditation under the new system, Immigration New Zealand will prioritise high-value companies:

• the top 50 NZX companies, local government
• entities and public sector organisations.
• New Zealand has 78 local government entities.
• New Zealand has more than 330 public sector organisations.
• If everyone needs to apply for accreditation, your employer may have to wait a long time for assessment.

 

Conclusion

The signs suggest that New Zealand is gradually tightening immigration policy, rather than offering migrants an amnesty as countries such as Canada have done. Migration is entering a difficult era, requiring both high pay and compliance with stricter employer checks. Low-paid skilled migrants have already been shut out, while the new immigration market is opening its doors to highly paid talent. Whatever changes immigration policy brings, this year looks set to be another year of waiting.

 

About the author  Sonny Lam

 

has 10 years of litigation experience and previously worked as an immigration officer at Immigration New Zealand. He currently practises as an immigration lawyer at Forest Harrison Lawyers.

After leaving Immigration New Zealand in 2015, he began specialising in immigration, bringing a distinctive perspective to technical immigration questions and the effective preparation of immigration applications, and offering sound professional advice from the perspectives of both applicants and the immigration officers assessing their cases.