Some of the cases we see at Laurent Law involve more than a single line of attack. In this example, we needed to think and plan ahead in order to finally get the win.

The Problem

We were asked to help a couple move to New Zealand based on a solid job offer in a professional role for the female partner. The trouble was that both of them had been living as overstayers in the USA for nearly two decades. That, by the way, describes millions of people who carry on their lives as “undocumented aliens”, work, and pay taxes.

On the face of it, they could easily enough qualify for NZ Work Visas except for the past immigration history. They couldn’t simply not mention it, because New Zealand regularly shares immigration information with the US and other countries under what is known as the Five Country Conference. It would possibly be worse to hide that information than to front up about it and deal with it – a message we try to get through to people all the time. Fortunately, our clients took that advice and we went to work on their behalf.

The Strategy

So we put in the Work Visa application for the partner who had the job offer, and put a case that there was more benefit to New Zealand in allowing a valuable worker to come here than to fixate on their time in the US without a visa. This history is relevant to what is called the “bona fides test” – that is, is the person genuinely going to abide by the conditions of their visa and New Zealand’s immigration laws if they are given the chance?

At the same time, we put in an application for Residence under the Straight to Residence category because the job was on the Green List, a defined set of occupations which face an ongoing shortage of workers. Both applications could run in parallel, but it was expected that the Work Visa application would be decided first.

How it Played Out

We were not totally surprised when the Work Visa application was declined, although we put our best foot forward for it to be approved. Some of these visa cases can fall either way depending on the attitude of the person making the decision.

That is where the Residence application came in. This is because, for Residence, there is no need to pass the bona fides test. Once someone gets Residence they cannot, by definition, overstay their visa – it remains in place for as long as they live in NZ; and if they let it expire while they are overseas then either they can get it reinstated, or they can’t come back. That’s a whole other topic, explained by Sahar Shamia in a blog from last year.

As expected, it did take a little longer for the Residence application to be decided. We got a pleasant surprise, though, in that it was approved more quickly than we had anticipated. This may have been helped by the application being well put together, so that the visa processing officer didn’t have to ask for anything else before granting Resident Visas to the couple.

The critical point here is that our clients needed to make the Work Visa application as well in order to demonstrate good faith to the prospective employer, and to reduce the risk of the job offer being withdrawn. We could not guarantee at the outset that the Residence application would be decided quickly, and it is understandable that a company would not necessarily hold a position open forever. If the Work Visa had been granted, well and good; but if not, then we already had the Residence application in process. By then our assurance to the employer that the client’s Residence application would not be affected by a bona fides concern was well received, and they were prepared to wait until Residence was achieved.

Every case seems to have at least one distinctive feature, some of which can be fatal to the client’s chances if it is handled the wrong way. Our job is to come up with the right outcomes. If you or someone you know is unsure about what to do, then contact us before taking another step.