Responsibility for a breach of visa conditions falls both on the visa holder and the employer

Most employers will be aware of the importance of checking the visa of a potential employee to ensure they are able to work for your business. However, many will not be aware of the ongoing need to keep track of their visa conditions, and ensure that all requirements continue to be met when changing aspects of the employee’s role.  A breach of visa conditions is something that is not taken lightly by Immigration New Zealand (INZ), and the responsibility to adhere to these falls both on the visa holder and the employer.

Work Visa labels specify three conditions: the position, the employing entity, and the location of work. Employers’ have a responsibility to ensure that any conditions are adhered to, so as not to breach the Immigration Act 2009.

Some common scenarios we see are:

• Visa holders who have been promoted within their company and have failed to obtain a new work visa prior to starting the new role (where their position is specified on their visa); or
• Employees being transferred to another office location in New Zealand where their visa only allows employment in a specific region.

Not only can a breach of visa conditions see the employee’s next visa application declined, it can also lead to them receiving a deportation liability notice (and potentially being deported). It can also lead to serious consequences for the employer, including liability under section 350 of the Immigration Act; and difficulties in retaining and hiring migrant staff in future.

Often all that is required to stay within the bounds of the law is a straightforward Variation of Conditions application, but once a breach has occurred the situation is no longer straightforward.  If you think one of your employee’s may have breached their visa conditions, we recommend taking steps to rectify the breach immediately, in conjunction with taking professional legal advice on how to do so.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan