Illegal workers and the skills shortage lists

Immigration

Nicola Appleton, the head of our Immigration team writes about the importance of ensuring your migrant staff are working legally and important changes to the Canterbury skills shortage lists.

A reminder about illegal working

Immigration New Zealand will be carrying out random work-site inspections this year, to check for illegal workers and employment law compliance. There is a potential fine of $10,000 if your business is found to have a contractor or employee working unlawfully. This is even if you understood that the person had the correct visa. Also, having an unlawful worker, either an employee or contractor, could stop you being able to recruit other migrants, which is rather unhelpful in the current labour market.

Of course, most migrant workers have the correct visa and are working lawfully. However, if a migrant gets a promotion or moves to a new employer, he or she may first need a new work visa. Also, often working holidaymakers accidentally work longer than permitted. Therefore, it’s important to sight original evidence of right to work before taking someone on. It’s also important to monitor any temporary visas, to ensure that no employee or contractor works too long or in an unpermitted role.

The online VisaView system, offered by Immigration New Zealand, is a good place to start checking right to work. You can find this on the Immigration New Zealand website. However, VisaView offers limited information and it will not remind you when a particular worker’s visa is about to expire. Therefore, it’s best to have your own system for checking right to work and for monitoring visa expiry dates and conditions. If you don’t have one already, you need to set one up now, and sight original evidence of right to work from all your current as well as future employees. We don’t want you caught out when the work-site inspections start.

Understanding the skill shortage lists

It’s often assumed that if a role is on a shortage list then a worker will immediately be granted a work visa, without the employer having to show that the role has been advertised, and that there are no New Zealanders available. Unfortunately, this is not always the case. Therefore, before relying on a shortage list as part of a visa application, it’s a good idea to make a few simple checks. It might just save you a lot of time and money.

All three of the shortage lists use the Australian New Zealand Standard Classification of Occupations (ANZSCO) system. The ANZSCO system is an attempt to classify every occupation and, as part of this, set minimum skill levels. This means that a migrant needs to check his or her occupation’s ANZSCO description, before applying for a work visa, to ensure he or she meets the necessary skill level. For example, to get a work visa as an IT Network Analyst a migrant either has to prove at least five years of experience or that he or she has the equivalent of a relevant New Zealand degree. If the migrant doesn’t have the experience or the qualification, then he or she doesn’t meet the required skill level and Immigration New Zealand cannot issue the visa.

It is also worthwhile noting that the skill shortage lists can set higher skill level requirements than the ANZSCO system. For example, Network Administrators or Analysts must demonstrate that they hold the equivalent of a bachelor degree in Information Technology or Electrical and Electronic Engineering, as well as a minimum of three years post qualification experience. If the Administrator/Analyst cannot prove that he or she meets these requirements, then he or she must have at least the bachelor degree or five years of experience, to meet the minimum ANZSCO requirements described above, and also prove that his or her employer has made a genuine attempt to try to recruit New Zealanders into the role, but that none are available or readily trainable.

Failure to be aware of the ANZSCO and the shortage list requirements can cause significant delay with a visa application. This is because without proof of the applicant meeting the shortage list requirements or, alternatively, of the applicant meeting the ANZSCO requirements and of the employer having made a genuine attempt to find a New Zealander for the role, Immigration New Zealand will need to seek more information to assess visa eligibility. This can then, in many cases, result in an application being refused.

Recent Changes to the Canterbury Skill Shortage List

The Canterbury Skill Shortage List (CSSL) changed on 14 February. Initially, the changes made it much more difficult for Bricklayers, Carpenters, Joiners, Drainlayers, Painters and Wall and Floor Tilers, to obtain work visas. This is because the changes required them to prove a formal qualification, in order to obtain a work visa under the CSSL.

However, Immigration New Zealand has since amended the CSSL and it is now possible for Bricklayers, Carpenters, Joiners, Drainlayers, Painters, Tilers and Welders to obtain a work visa, relying on the CSSL, without having to prove that they hold a formal qualification. Instead, the applicants simply need to prove a minimum of three years work experience, plus a Licensed Building Practitioner licence, where appropriate.

This is great news! It should make it much easier for employers, involved in the Rebuild, to recruit individuals into these much-needed roles. If you have any questions about the CSSL or whether a role is included, please contact our Immigration Department.

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