A handy explanation of the Essential Skills procedure, and some of the most common problems faced by people who apply. Published on the FindLaw legal information website, November 2011.

Some New Zealand employers rely on people from overseas to fill positions which New Zealand locals may not be available to do to the employer’s satisfaction.

Essential Skills Category

The Essential Skills work visa category is for overseas workers who have a job offer from a New Zealand employer and can demonstrate they are suitable to do the job, over and above other New Zealanders. This category of work visa can lead to eligibility for a Skilled Migrant Residence application by giving you time to build up New Zealand work experience in your field of expertise.

Immigration New Zealand (INZ)

INZ has a duty to help New Zealand employers fill industry gaps. One of its policy objectives is to incentivise the development of a skilled work force and help New Zealand firms maintain capacity. If your job is deemed to be in shortage, the ‘labour market check’ requirement will not apply.

Immigration New Zealand recognises that although New Zealanders must be given first preference for all offers of New Zealand jobs, at times some jobs may be filled by non-New Zealanders. In this case INZ must be satisfied that

  • The applicant is sufficiently qualified and/or experienced to do the work on offer, and
  • No suitable New Zealanders are available to do the work.

The job offered must be matched to a job description on the Australia and New Zealand Standard Classification of Occupations (ANZSCO). This is a database of general descriptions for most jobs, along with the expected requirements for entry into the industry. Usually an applicant must have the level of qualification ANZSCO specifies for that job or (if provided for) prove they have enough work experience instead of the qualification. If you don’t have the background then INZ may suspect that the job is not what you and the employer say it is.

Work and Income New Zealand (WINZ)

The remaining hurdle is whether New Zealanders are actually available. To answer this question INZ usually does a ‘labour market check’ through Work and Income New Zealand (WINZ). In our experience very often the advice is a simple ‘Yes’ – there are suitable people who can do the job. This can defeat the visa application.

The Employer’s Case

However, WINZ’s answer is only one source of information INZ can consider in determining availability. INZ can also take into account “the employer’s case” for why they need the migrant worker. To make out its case an employer must first show that they have genuinely advertised the position and then go on to justify why the applicant is needed. The employer’s case can include:

  • proof of the employer’s recruitment efforts;
  • outlining the precise industry skills and experience it needs which, after looking, cannot be found in anyone local;
  • demonstrating how the employer’s particular job requirements make it difficult to place locals in the job – e.g., location, hours and nature of work.

Using an Immigration Advisor or Lawyer

“The employer’s case” is where an immigration advisor or lawyer can bring real value to Essential Skills applications, by arguing that it trumps the WINZ labour market assessment. Immigration advisors must be licensed to give advice to you while lawyers (among others) are exempt from immigration licensing.

We have successfully argued that a New Zealand employer is entitled to have only committed workers. Therefore if locals have continually resigned from work after only a short time in the job then the person applying for the visa may indeed be more suitable because they are dependable.

There is very often real scope for an experienced advisor to argue for a favourable assessment of ‘suitability’ and that all the mandatory requirements are met on the basis of the specific policy that applies and as it is worded. If an employer is willing to be guided in the application process as to what documents are needed, the application can be stronger.

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