We often advise Queenstown employers and their employees with a range of visa issues, however these issues can also arise anywhere in NZ. This article will cover some common issues experienced in areas with a high proportion of workers from outside of New Zealand.
We have recently been helping a number of Queenstown employers and their employees with visa issues. The employers are frustrated by these issues. They tell us that there are simply not enough Kiwis around to fill all of the jobs in Queenstown and any visa delay can really hurt their business. Here are some tips in relation to employing workers from overseas:
Why do we have to prove that there are no Kiwis missing out on the job?
Immigration New Zealand (INZ) cannot grant a work visa unless it is certain that no New Zealanders are missing out on the job.
This means showing that you have made a genuine effort to find a suitable New Zealander. Or, if no suitable New Zealander was available, showing you have genuinely tried to find a New Zealander who could be readily trained into the role.
Of course, your employee won’t have access to your recruitment information. So, the best way to help is by giving him or her evidence of the recruitment process you have gone through, including copies of the online advertisements. A letter explaining why you could not find a New Zealander or one you could train into the role is also a good idea. Of course, this recruitment process needs to have been undertaken reasonably recently, within the last six months is best.
We also recommend carefully completing the Employer Supplementary Form, so that INZ can easily understand you have not been able to find a New Zealander.
It’s a good idea to set up a good dialogue and/or working relationship with WINZ. INZ will often check with WINZ for an opinion as to whether Kiwis are available. So, if you have worked with WINZ and they cannot find anyone for you, this will work in your employee’s favour.
Do we have to advertise again to help renew the visa?
Yes, you do. This is because INZ must be sure that the situation hasn’t changed since the last visa was issued. There may now be a New Zealander who could do the job.
Why has the application been rejected or the employee has only been given a short visa?
Employees often have their applications rejected or are given shorter visas than they would like, just because they didn’t submit the right documents.
Employees can forget to check when their passports are going to expire. If the passport is going to expire soon, they should get a new passport before the visa application is submitted. That way, the employee will have a work visa issued for the longest possible time.
Employees also often think that they do not need to provide police certificates or medical certificates. They may think this because they didn’t have to before, when they came here on a working holidaymaker visa. Or, an employee might have provided the police certificates or medical certificates with an earlier application and believe they don’t need to do it again. However, for a number of reasons, they might be wrong. Therefore, we recommend telling the employee to telephone INZ and double check if new police certificates or medical certificates are needed. Police certificates can sometimes take a long time to arrange, so the sooner this is checked, the better.
My employee received a letter about a very old conviction, what does this mean?
Sometimes employees forget to declare their convictions when they apply for a visa. It happens a lot with working holidaymakers. This might just be because the working holidaymaker visa application is done through an online form, so it is easy to skip a question. In any event, it is only when a further visa is needed, so a police certificate is needed, that the conviction comes to light.
If this happens, INZ will be very concerned. It needs to make sure that people who apply for visas are honest. Therefore, INZ may write to the employee, telling him or her that the application may be declined, unless he or she is given a character waiver. If this happens, the employee should get help from an experienced lawyer or adviser as soon as possible. This is because the employee will need to provide a very good explanation to INZ and also evidence to prove that he or she justifies an exception being made.
Why can’t my employee get residence?
Unless your employee has had the great fortune of entering into a relationship with one of the very attractive Queenstown locals, he or she is likely to need to apply for residence under the Skilled Migrant Category.
To get residence under the Skilled Migrant Category, the employee will almost certainly need to show he or she has skilled employment. INZ only recognises certain occupations as being skilled. Chefs, Bakers, Restaurant Managers and Bed & Breakfast Operators are recognised as being skilled. However, Waiters, Sales Assistants and Housekeepers are not considered to be skilled. This is where residence applications often go wrong.
INZ will check that the claimed skilled employment matches with the descriptions INZ uses. INZ uses descriptions published by the Australian and New Zealand Standard Classification of Occupations (ANZSCO). For example, if an employee claims to be a Restaurant Manager, INZ will refer to the ANZSCO description for Restaurant Managers. This states that Restaurant Managers control a restaurant’s operations. If the employee cannot prove he or she is doing this, then the application is likely to be declined. You can find these descriptions here.
INZ will often contact employers, by email, with a questionnaire. This is to ask the employer about what the employee is doing. This is so INZ can check that the employee’s employment actually matches with the claimed ANZSCO description for a skilled job. If you ever receive such a questionnaire, you will greatly help your employee if you spend some time on it and explain exactly what the employee is responsible for doing. Otherwise, INZ may be concerned that the employee is not in skilled employment and you and the employee will have to spend a lot of time proving otherwise.
We hope this has been helpful. If you or your employees have any visa related queries, you are most welcome to contact our Immigration Team. The 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.