The COVID-19 pandemic continues to have a significant impact on countries around the world, including New Zealand. The decision by the New Zealand Government to close the border and the subsequent “lockdown” has also had a negative impact on temporary visa holders currently in New Zealand as well as on people offshore who either have a temporary visa application pending with Immigration New Zealand (INZ) or were about to begin the process of applying for a new visa.
We have received a number of questions from affected individuals, both onshore and offshore, and set out below our answers to some of the most frequently asked questions.
Q: I am on an interim visa – is my employer able to claim the Government wage subsidy for me?
Your employer is only able to claim the wage subsidy for employees who are currently legally employed by them. This means that for holders of valid work visas, your employer can claim the wage subsidy.
With interim visas, it is very important for you to understand the type of conditions associated with your interim visa.
If you hold an interim visa with work conditions, you are lawfully able to work so your employer can claim the wage subsidy for you. However, if you have been issued an interim visa with visitor conditions you are not lawfully entitled to work and your employer will not be able to claim the wage subsidy for you.
Q: I currently hold an Essential skills work visa which requires me to be paid no less than a specified remuneration threshold. My employer wishes to change the terms and conditions of my employment by reducing my wages to fall below the applicable threshold. Will this have any implications for my visa?
Firstly, any changes to employment terms and conditions must be made via consultation with you and in accordance with New Zealand’s employment law.
Secondly, it depends on whether you are currently employed in a business providing essential services or not.
If you are currently employed in a business that is not providing essential services you must ensure that you continue to work in a fulltime role. For immigration purposes, this requires you to work, on average, a minimum of 30 hours per week.
There are also minimum remuneration thresholds that may be applicable to Essential Skills work visas. For instance, your visa may require you to earn at least $21.25 per hour (in the case of employment having been assessed as mid-skilled) and if your remuneration falls below that level you may technically be working in breach of your visa conditions and would have to inform INZ of this material change to your circumstances.
There are potentially serious consequences for Essential Skills work visa holders if they work in breach of their visa conditions. In the worst case scenario you would potentially be liable for deportation.
If you are employed in a business providing essential services as of 16 April 2020 a limited number of changes have been announced to relax certain visa conditions for workers employed by businesses providing “essential services”. These include being able to be redeployed to other roles within your current workplace and undertaking your current role in different workplaces to help essential businesses continue operating.
Before you start working in a revised role, your employer must first submit a request on your behalf to INZ.
We also note here that the variation form does not seem to allow for the situation where hours or rates of pay are decreased, meaning that if your employment conditions are altered so you no longer meet the thresholds subject to which your visa was issued, then technically you may still be working in breach of your conditions, as set out above.
Talk to us if you find yourself in this situation as these issues may well have to be formally addressed to ensure the best outcomes for you.
Q: My employer wishes to drop my salary to 80% which will take my hourly rate below the threshold associated with my Skilled Migrant Category residence application. What does this mean for me?
As set out above any changes to employment terms and conditions must be made via consultation with you and in accordance with New Zealand’s employment law.
Under the Skilled Migrant Category, remuneration thresholds apply in accordance with the skill level associated with your position of employment. If you and your employer agree to reduce your effective hourly rate to such an extent that the new rate falls below the threshold associated with your level of employment, then this is a material change in your circumstances which must be notified to INZ.
This is so, because if your new remuneration rate falls below the threshold associated with your level of employment then your employment would technically no longer meet the requirements of being considered “skilled”, which means you would not be able to continue to claim points for your employment, thereby leading to a possible decline of your resident visa application.
In those instances where remuneration levels are promptly restored to be equal to, or above, the applicable threshold, we expect to see some leniency from INZ, but in those instances where remuneration levels remain below the applicable threshold, we expect INZ will decline resident visa applications unless alternative positions of employment (at the correct remuneration threshold) can be secured.
Q: My employer wishes to change my job duties and responsibilities – what does this mean for me? If I work in the new role, will I be breaching my visa conditions?
If you hold a work visa with employment conditions, you can only legally work in line with the conditions of your visa. Any material change to your employment would effectively render the position to be considered as a “new” position and you should not commence the “new” role until INZ issued you an amended visa.
Unless you are an “essential worker” there is currently no facility to allow you to lodge an application to vary your visa conditions as these applications can only be made by post and INZ’s processing branches are currently all closed.
We therefore advise against working in materially amended positions of employment and suggest you talk to us if you are concerned you may be working in breach of the conditions of your current visa.
Q: I currently hold a student visa. How will any changes my employer makes to my employment terms and conditions impact on me?
Holders of student visas (generally) are able to work for up to 20 hours per week during term time and full time during vacation periods. For these purposes, they are considered to hold “open” work visas, so if your employer wishes to reduce your hours or pay, provided that this is done in accordance with employment law, there should not be any repercussions from an immigration perspective.
Also note that there are specific exemptions to allow students to work more than 20 hours per week if they are employed in healthcare or supermarkets, and for those who were employed in any business offering essential services as at 16 April 2020 (as long as the increase in hours does not create study issues).
Q: Can INZ process my residence quickly because my employer is going to make me redundant in 12 weeks’ time?
The possibility of being made redundant is unlikely to have a beneficial impact on the processing timeframe associated with your resident visa application.
Instead, your potential redundancy could lead to INZ raising concerns about the “ongoing” nature of your employment (which is a prerequisite for being awarded points for your employment) and it could also lead to INZ raising concerns about the financial sustainability of the employing business.
If you are at risk of being made redundant then our advice is that you should attempt to secure a suitable, alternative offer of employment, as INZ would be able to decline your resident visa application if you are unable to do so.
Q: I have been made redundant. What does this mean for me?
As you have unfortunately been made redundant, you will need to either secure a suitable alternative offer of employment (to rely on in either varying the conditions of your work visa, or applying for a new work visa) or you will need to apply for a different type of visa (such as a student or visitor visa if indeed you meet the requirements for the grant of such a visa).
If you are unable to secure a suitable alternative offer of employment, unable to secure a new work visa or unable to secure a different type of temporary visa, then you will be expected to depart New Zealand.
In saying that, limited appeal options may exist in certain circumstances and we suggest therefore that you talk to us if you find yourself in this situation.
Q: I held an Essential skills work visa which was due to expire on 20 May 2020. However, I have got the automatic visa extension. How does that work?
Certain visa holders, including holders of work visas and interim visas that were due to expire between 2 April 2020 and 9 July 2020, have been issued with an automatic visa extension, valid until 25 September 2020. INZ has issued 85,000 such extensions.
If your employer wishes to retain you beyond your new expiry date of 25 September 2020, we recommend you make your next visa application well in advance of that date as there will be large numbers of migrant workers all with the same expiry date in late September, meaning there are likely to be significant processing delays at that time. Further, with the tightening labour market, being able to satisfy INZ that there are no suitably qualified New Zealanders available to fill the role will only become harder.
Q: I submitted a visa application well before the lockdown and I have still not heard anything from INZ. Is there anything I can do to speed up the process?
At the current time INZ is operating only on skeleton staff and their focus is on processing applications for urgent cases that are directly related to the COVID-19 response (e.g. for healthcare workers and/or very exceptional humanitarian cases) and the limited ability for some workers to make a request to vary their employment conditions (essential services workers).
All INZ processing centres are closed and the majority of their staff are not able to work remotely during the lockdown. This means that there is effectively zero processing of residence or temporary visa applications being undertaken during the lockdown, other than for exceptional cases. The intention of the automatic visa extension notice is to alleviate concerns around this issue, by granting an extension to temporary visa holders with upcoming visa expiries.
If you consider that your application requires urgent treatment and there are genuine and compelling reasons to support this, then we can potentially assist to make a request.
Q: I am currently overseas. I submitted an application for an Essential Skills work visa to allow me come to New Zealand to take up this role. I am aware of the Covid-19 lockdown in New Zealand and just wish to know if this will impact on my application?
As the border is closed INZ is unfortunately not currently processing any temporary visa applications for anyone other than essential workers. The New Zealand Government has also indicated that it will maintain tight border restrictions even if the lockdown is lifted in New Zealand. Therefore, it is not clear as to when INZ will begin processing non-essential temporary visa applications for offshore applications.
When INZ resumes processing Essential Skills work visas for offshore applications, it is possible that it may request updated evidence that the labour market test is still met – in other words INZ may request updated evidence from your prospective employer to demonstrate that you are still the only suitably qualified person available to fill the role you have been offered. As time passes and the unemployment rate rises in New Zealand, and depending on the skill level of any offered role, it will become harder to satisfy INZ that there are no New Zealanders available to fill any vacancy that they have been offered.
Q: I am currently residing overseas with my New Zealand citizen partner. I wish to apply for a visa based on my relationship so we can travel together to New Zealand after the lockdown. Can I still do this with the current lockdown in New Zealand?
As we have explained above the border is currently closed to non-New Zealand residents and as such INZ is unfortunately not currently processing any temporary visa applications for non-essential applicants offshore. However, you could certainly apply for this visa now.
Once INZ branches offshore reopen it is likely that they will have a large backlog of applications to process. Therefore, our advice would be to prepare and submit your application as soon as you can in order to get it in the queue.
INZ also has a system for considering requests for specific individuals to be granted permission for them to travel to New Zealand during the lockdown period. This includes partners of New Zealand citizens or residents. This is another option you have open to you. However, INZ is applying a high threshold when considering these requests. It is also at INZ’s discretion as to whether or not they grant someone offshore permission to travel to New Zealand.
The advice above is current at the time of writing (17 April 2020) and in some instances, represents our predictions of what we expect to see from INZ in policy developments. However, the COVID-19 situation is constantly evolving and so is INZ’s advice. Therefore, our advice would be to keep an eye out for future alerts and updates as more information becomes available. Also, if you need any specific immigration advice then please get in touch with our expert team.
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