Laurent Lore - Corporate Edition April 2024

Laurent Lore

Corporate Edition

April 2024

Good morning Simon,

We only published the last intalment of this newsletter a month ago, but we felt it important to alert you to a few developments since then. A recent Government announcement on 7 April 2024 introduced significant changes to the Accredited Employer Work Visa scheme.

These new settings affect both visa applicants and those who wish to employ them. We can only cover some of the key points here.

We continue to fix the complicated and troublesome cases for visa applicants and for employers. Get in touch if you feel that you need professional help.

Simon Laurent

Principal

slaurent@laurentlaw.co.nz

Minimum Skill Requirement

Employers must now take ‘reasonable steps’ to ensure that migrant workers are suitably qualified and skilled before supporting them for a visa application. Employers must:

Ensure a migrant meets the new ‘minimum skill requirement’ (at least 3 years relevant work experience or a relevant qualification at Level 4 or higher on the New Zealand Qualifications and Credentials Framework). This includes sighting evidence of the work experience or qualification the candidate claims, and keeping accurate and complete records of doing this.
Ensure that each Work Visa applicant has the work experience, qualifications and other requirements which are identified as necessary for that job in the Job Check application. Apart from seeing the sorts of proof mentioned above, employers should also consider seeing evidence of the worker's skills such as a video of them at work, or requiring knowledge to be demonstrated through a job interview. Again, employers must collect complete and accurate records of doing this.

The introduction of a minimum skill requirement certainly reduces the ability of New Zealand employers to access migrant workers. Indeed, this is the intention of the policy writers, because New Zealand is seen to have become too reliant on low-skilled migrants. The question is, though, whether there are New Zealand citizens and residents who are actually available for, can, and want to work in the positions that these migrants often fill. Watch this space.

ANZSCO is Back

The recent reintroduction of ANZSCO into the AEWV instructions has sparked significant debate and concern within the immigration industry. The Australian and New Zealand Standard Classification of Occupations serves as a pivotal tool for categorising occupations and roles within the labour market, dividing them into 5 distinct Skill Levels.

However, one of the primary challenges stemming from this reintroduction is the difficulty faced by employers in aligning a prospective employee's role with the closest ANZSCO match. This becomes even more pronounced when put alongside Immigration NZ's "substantial match" assessment, which has historically been fraught with complications.

The crux of the issue is that an employee's role must substantially match the tasks outlined under a single ANZSCO occupation. Disputes with INZ often arise regarding which tasks are essential to the job and are undertaken by the employee. The rigidity of this assessment can lead to instances where an employee's role is downgraded to a lower ANZSCO Skill Level, thereby jeopardising the Job Check application. For example, if hiring for a Chef position (Skill Level 2), INZ may categorise the role as that of a Cook (skill level 4), which forces the employer to re-advertise the role, register with WINZ, and file a new Job Check application.

INZ's interpretation and application of ANZSCO criteria has frequently been called into question. ANZSCO definitions were originally intended primarily as aids for interpreting occupation statistics, not for assessing job-based visa applications. It is a guide to the tasks undertaken and skilled involved and was not meant to be definitive statements of what is required. The practical implications of its return into AEWV assessments remain a point of contention for employers and immigration professionals alike.

"Lower-Skilled" Jobs

A special set of rules have come in for jobs found at ANZSCO Skill Levels 4 and 5. These are seen as low-level positions requiring less technical or managerial ability. They range from rest home caregivers to office assistants to truck drivers, and many others.

Basically, the Government is making it harder to hire overseas people for these jobs. This is done as follows:

Requiring 3 weeks of advertising before filing a Job Check application, instead of 2 weeks for everyone else;
Employers must once again prove that they have listed the job with WINZ and that WINZ can't find anyone. This was widely viewed as a bureaucratic waste of everyone's time before it was scrapped with the introduction of AEWV back in 2022;
Visa applicants must have a minimum standard of English equivalent to IELTS 4.0. English language ability was rarely used to screen out Work Visa applicants in the past;
Those who do qualify can only get a 2-year visa instead of the 5 years available to AEWV holders in Skill Level 1 - 3 jobs, although they can extend this by an additional year before they have to leave NZ for a year - or get a higher-skilled job in the meantime.

Employers who need people at this level will need to think harder about whether this is worth-while. If they do decide to push on and give it a go anyway, they and their candidates will have their work cut out for them.