It is fantastic that so many employers want to help their skilled employees become residents. However, many employers tell us that they are not sure of the best way to help. Therefore, we’ve put together some tips to help employees towards residence.
How much help can I give?
Don’t forget that you cannot give immigration advice. This means you cannot recommend that an employee makes his or her application in a particular way, submits certain documents, or makes a certain type of application.
You risk a fine of $100,000 if you give immigration advice. Therefore, a good practical way to help your employees is to make sure that they have access to a competent immigration advisor or specialist immigration lawyer.
Is there anything I need to do about the employment agreement?
A very good first step is reviewing your employment agreements to ensure they meet employment law requirements. It is very easy to miss out mandatory clauses, especially if you have been using the same agreement for a number of years.
The mandatory clauses are helpfully listed on the Department of Labour website. However, we really recommend that you have a specialist employment lawyer prepare your agreements, just to be sure, and given the recent changes to the Employment Relations Act.
It is also very important that any employee who is applying for residence has an agreement that confirms the employment will be for at least 30 hours per week.
The agreement must also include a full and detailed job description.
Why does the employment agreement need a full and detailed job description?
Immigration New Zealand (INZ) will refer to the job description when trying to assess your employee’s job.
In particular, INZ will compare the job description with an Australia and New Zealand Standard Classification of Occupations (ANZSCO) description that seems to match with your employee’s job. If the ANZSCO and the job do not match, the employee will not qualify for residence.
What is ANZSCO? Why does it need to match with the job?
The ANZSCO is a database of occupation descriptions. The descriptions are then categorised into one of five skill levels.
Individuals working in occupations that are categorised as skill level 1, 2 or 3 can usually qualify for residence under the Skilled Migrant Category (SMC).
Each ANZSCO description lists the tasks involved in each occupation. It is this list that INZ compares against an employee’s job description.
Your employee must pick an ANZSCO description that he or she thinks matches his job, when he or she submits his or her residence application. Hopefully, your employee will discuss his or her choice with you. If he or she hasn’t, we recommend you ask. This is so you can help him or her choose. If your employee chooses the wrong ANZSCO description, then his or her job won’t match with it and the application can be declined.
Each ANZSCO description also lists the qualification and work experience requirements. Therefore, your employee also has to prove that he or she meets these qualification or work experience requirements to be granted residence.
Can an employee obtain residence on a fixed-term employment agreement?
A recent change means that employees can qualify for residence using a fixed-term employment agreement, as long as it is for at least 12 months. However, there are a number of things to be aware of, including the fact that the residence application must be processed before the employment ends. Therefore, if you have an employee on a fixed-term agreement looking to apply for residence, we recommend he or she starts the process as soon as possible, and gets professional assistance.
Do I need to advertise to show there are no New Zealand citizens or residents available for the role?
No, this is only required for temporary visas. You do not need to demonstrate that there are no New Zealand citizens or residents available for the role when your employee applies for residence.
Will INZ contact me about my employee’s residence application?
INZ is very likely to contact you by email, with a questionnaire. This is to ask what your employee is doing in his or her job. This is another way of checking that the job matches with the ANZSCO description your employee has selected.
INZ will most likely require a response from you within five working days.
We recommend that you allocate a decent amount of time to complete the questionnaire. If you do not know what ANZSCO description your employee has chosen, this is another good time to discuss it.
If you are unable to complete the questionnaire, or do not provide enough detail, INZ may not be satisfied that your employee’s job matches his or her selected ANZSCO. This may mean that his or her residence is declined.
What if my employee’s work visa is about to run out but the residence application hasn’t yet been approved?
Your employee will need a new work visa. This is because he or she must hold a valid work visa while his or her residence application is processing. Applying for residence does not automatically extend your employee’s work visa.
Your employee must apply for a new work visa before their current one expires. If he or she does this then, even if the new work visa is not approved before the old one expires, INZ is likely to give your employee an interim visa, which could allow him or her to keep working whilst the new visa is being processed.
Will I need to advertise the position to help with the new visa application?
If your employee’s residence application is under consideration, you may not need to demonstrate that you have tried, but could not find a New Zealander for the position. In other words, you may not need to meet the labour market check requirements. However, there are strict criteria for this, so we recommend that you discuss this with a competent immigration advisor or specialist immigration lawyer.
We hope this has been helpful. If you or your employees have any questions about residence or temporary visas, you are welcome to contact our Immigration Team. The team’s direct number is 03 335 3480.
Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.