Laurent Lore Corporate Edition June 2021

Greetings!

The big news for immigration in the business space is the introduction of a new system of employer accreditation which will apply to all job-based Work Visa applications. I wrote a blog giving a rough summary of the scheme. INZ has published a Factsheet describing the "3-gate" system. There is little point wasting your time by repeating that content in this newsletter. Nor do we know more inside information than anyone else, because the system is very thin on detail. It's doubtful that the operational policy has even been written yet, with less than 3 months till the rollout starts. What we can do is to suggest some things to think about for your existing employees, and people you want to hire. Simon Laurent Principal slaurent@laurentlaw.co.nz

What to Do Before 1 November .There is a window of opportunity in the next few months to get your non-NZ staff on to long-term visas if they qualify. "Opportunity", because we still don't know how hard the new rules for accreditation will be; and processing times for employer applications to get accredited could quickly blow out. Therefore, it makes sense to use the familiar old Essential Skills system to support Work Visa applications up to 31 October. We do at least have some idea what works and what doesn't under those rules. Where the balance lands in the new system is hard to predict. Even if some staff have visas expiring in 2022 - or even 2023 - so that they still have a fair bit of time on their current visa, we have been recommending that employers seriously consider putting new Work Visa applications in before 1 November. Otherwise, some companies may discover that they can't qualify for accreditation, or couldn't get it in time, and they will have to let those workers go. Businesses can apply for their ticket from "late September", and support visa applications from 1 November if they are approved to do so. Rough estimates provided by INZ management themselves point to some 25,000 employers who might apply, many of them in that initial window of several weeks. This means that it could take many months to get accredited, even if you put your application in early. We have no indication about how well the accreditation processing branch will be resourced, but it is hard to see how this scenario will not end up in a painful and protracted log-jam. Employers with the existing form of Accreditation need to think about this too. If you have been accredited until next year or the year after, you can only use it to hire people until 31 October. It would still be valuable to attract or retain valuable staff because they will get a pathway to Residence - INZ has said that it will continue to honour the "Residence from Work" rights of Work Visa holders under the old scheme. If your Accreditation expires in the next few months, however, then you cannot get it renewed in the meantime, because INZ will stop accepting Accreditation applications after 30 June. This means that companies need to pivot to the Essential Skills category to get, or to keep, people on the books. If enough companies get to grips with all of this, then we predict a surge in Essential Skills Work Visa applications toward the end of October 2021. That will spin out the already lengthy processing times even further. It would therefore make sense to start thinking now about visa renewals.

Pitfalls of the "Employer Led" Approach The 3-gate process puts most of the work squarely with employers for the first 2 stages: The Employer Check tests whether a company is fit to employ overseas workers; The Job Check requires employers to show that they can't find locals to join their staff. Already warnings are being sounded in the media about how this scheme will make migrant workers more vulnerable to exploitation. This is partly because employers acquire greater power to set the agenda on what jobs are available to migrants. Up until now, any employer is free to support a visa application, but that pool will become more tightly ring-fenced come November. There will also be a greater up-front cost to employers to become accredited, and that will encourage some to claw that back by requiring prospective staff to go into a pay-back scheme - to buy their job by returning money to the employer under the table. When the Government first looked into the accreditation system several years ago, it already had before it research from Australia and elsewhere indicating that tying migrants to a single employer increased exploitation. It chose to ignore that and press on regardless. Putting the onus on employers to get accredited is also likely to encourage more aggressive inspection and investigation of workplaces to identify bad practices. Immigration's Compliance team will have a known captive audience to check on. The only limit to this monitoring will be INZ's time and resources. Expect to see more funding allocated to this space in the next Budget.

A Word about Corporate Transfers Two words actually - "don't bother". As we all know, most overseas people need an exemption to enter NZ during the COVID-19 border closure. Companies can make a Request for Critical Worker to bring in key staff from overseas, but they must show that the person they have in mind has characteristics that cannot be found locally, and is needed to play an important role. Immigration has repeatedly warned that the bar on granting border exemptions generally has been set high. They are not joking. We have accepted instructions a couple of times to try to bring in some highly capable people, possessing a good skill set, and on a salary which reflects their perceived value to the business they work in. However, these apparently meritorious applications have been refused out of hand, with comments to the effect that INZ cannot see anything particularly unique or compelling about the case that was put forward. For the time being, multinational companies wanting to draw upon offshore expertise to help their NZ operations will need to settle with doing this by way of remote collaboration.

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