After announcing a sweeping “one time” Resident Visa for people on Work Visas at the end of September 2021, Immigration New Zealand has now published the detailed policy. This contains some interesting features, but not all the answers.
Aims of the Policy
The 2021 Resident Visa Instructions are said to have the following Objectives:
a. Certainty for employers that they can keep their existing workers;
b. Retaining migrant workers by offering Residence;
c. Attracting workers in health or highly-skilled jobs who have come in on Critical Purpose Visas as a border exception.
This is not just descriptive stuff. When necessary, we will lean on the Objectives of a visa policy to argue that a case should be approved.
How You Qualify
Sahar Shamia of our office wrote a summary a couple of weeks back describing what we knew then, and this is still a good reference point for an overview. The key date in all this is 29 September 2021. There are 2 steps to be able to apply.
A. Eligible Visa: You must first hold one of a list of certain Work Visa types. Most of them are job-based, although open Post-Study Work Visas are included. You must have been in New Zealand on 29 September – there is no negotiation on that one. Yon must be on the eligible visa on 29 September, or have applied by that date and have it granted later. The one exception is that applicants who were in Australia on 29 September and departed NZ for Australia between 6 April 2021 and 23 July 2021 can apply.
I have left out the other ways to qualify, for those on “section 61” Work Visas and Critical Purpose Visitor Visas, so as to focus on the main points of the policy. Talk to us directly if you want to find out more about your own situation.
B. Settled/Skilled/Scarce: Next, you must also meet one of the following categories:
Settled: You have been in New Zealand since 29 September 2018 (3 years before the key date), and have been here for at least 821 days during those 3 years.
Skilled: You are being paid at least $27 per hour wages on 29 September, or you applied by that date for a visa based on a job paying that wage, and it is granted later.
A practical feature of the rules is that, if your pay was at $27 per hour but was cut because of COVID-19 disruptions to your employment, you can still qualify so long as you can show that it was a temporary reduction and it is later restored, or will be restored.
Scarce: Your job is on a list of occupations where there is a shortage, like the Long Terms Skill Shortage List (LTSSL). All the jobs that qualify for this are now on a separate list called Appendix 11. Part of this list includes Primary Sector Jobs which includes bakers, various farm workers (not just farmers), cooks, food factory workers, fruit pickers and vineyard workers, and many more. The door to Residence has now been opened to many people who could never have considered Residence before. The Primary Sector list, and the set of Personal Care workers on Appendix 11 as well, is recognition at last of just how important these jobs are, and the migrant workers who are doing them.
Unlike the old system for jobs on the LTSSL, you no longer need to prove that you have certain qualifications or experience to make it onto the Scarce list. You just need to show that you are doing that job. There is a risk that Immigration could start digging to find out whether you are actually doing the job that your Employment Agreement says you are doing, but INZ management keeps saying that the processing of these cases is meant to be quick and simple. Let’s see how that plays out.
A Few Possible Traps
Applying for an Eligible Work Visa: A useful feature of the policy is that, on 29 September, you might have been on a Work Visa (WV) but you did not meet any of the Settled/Skilled/Scarce rules. However, so long as you had applied by that date for a visa that does meet the Skilled or Scarce criteria, you can still go on to Residence if the application is approved.
What happens, though, if your WV application is still not decided when you apply for the 2021 Resident Visa? Will it be declined immediately, or will it be deferred until the final outcome is known? If your WV application is declined but you have a right of reconsideration, would your Residence case be left open until that is decided? The Instructions don’t answer those questions, and only says that you can apply for Residence if the WV application is “subsequently granted”.
My take on this is that you need to wait until the WV is approved, and only then apply for the 2021 Resident Visa. This means that you will fall further down the queue of applicants, and your Residence case would take longer to be decided, but at least it would save you the time and money of having the first application declined.
Rate of Pay: Some jobs are on an annual or monthly salary, and the number of hours worked can vary from week to week as allowed for in the Employment Agreement. In order to work out the per-hour pay rate, Immigration will ask for evidence of the number of hours worked over a range of weeks or months. The maximum weekly hours worked in that range becomes the number of hours worked per week across the board. Immigration has applied this standard for some time to job-based visa applications where the rate of pay is important.
So if you are on an annual salary for 40-hour weeks at, say, $65K per year ($31.25 an hour), but you have to work 55 hours on a couple of weeks during the year, INZ will treat you as working 55-hour weeks the whole time. This drops your per-hour rate to $22.72. You would then be disqualified from being recognised for the Skilled category, and your application could be declined outright. If your job has these sorts of conditions, you may already be disqualified from applying for the 2021 Resident Visa, because Immigration looks at what your hours of work would have been on 29 September 2021. Trying to change your work conditions now to make you compliant will not help you.
3 Times to Qualify: In order to get Residence approved, an applicant must show that they meet the rules at all of the following stages:
a. On 29 September 2021 – unless they have applied for a qualifying visa on that date and it is later approved;
b. On the date that they apply for Residence – from 1 December 2021 for those who have a Skilled Migrant Residence application or Expression of Interest underway, from 1 March 2022 for everyone else; and
c. On the date the application is assessed. In most types of visa applications, it is not enough to meet the rules on the day you apply – you must still do so when the application is decided. For example, if you relied on being Skilled (by being paid $27 an hour) when you applied, but you change to a job which pays less than that before the application is decided, your case will be declined.
This will be quite a challenge for some people – to remain eligible right from 29 September 2021 until their application is approved, which might be late in 2022 or beyond. Companies affected by COVID-19 lockdowns may have to lay off staff. Economic conditions could change a lot in the next year. People will need to decide whether to hang in there for quite a long time, even if they want to leave the job that they are in. In some cases that is not a healthy situation, and an unscrupulous employer could take advantage of a migrant’s dependency on staying with the company at all costs.
Changing Jobs: This relates to the previous point. For example, if you claim to be in a Skilled job as at 29 September 2021, but by the time you apply for Residence you are in another Skilled job, you need to supply evidence of both jobs in order to cover the bases. They may be the same occupation (such as a Carpenter), or two different roles, but in both cases you need to show that you were being paid at $27 per hour in each case.
Failing to have that evidence ready at the time you apply for Residence could, at best, slow down processing. At worst, if you can’t supply evidence of the old job by the time you apply, the application could well be declined.
The 2021 Resident Visa policy looks straightforward on the surface, and Immigration keeps saying that it is meant to be simple. Our experience over many years is that things can get complicated when you apply the rules to particular cases; and it can be made worse by the way visa officers interpret the Instructions.
Even if you already think you qualify, contact us in order to get an objective assessment. We are also open for business to manage the Residence process. If you want to keep up to date about how to make a successful application, email [email protected] to ask to be put on our special 2021 Resident Visa newsletter.