New work visa places onus on employer to follow rules

The Government is making changes to New Zealand’s immigration policy. PHOTO: THE NEW ZEALAND HERALD
The Government is making changes to New Zealand’s immigration policy. PHOTO: THE NEW ZEALAND HERALD
What does "immigration rebalance" mean for employers, asks Sarah Caulton.

Sarah Caulton
Sarah Caulton
Coinciding with the staged reopening of the borders this year, the Government is looking to “rebalance” New Zealand’s immigration priorities.

The restrictions on travel to New Zealand have provided the Government with an opportunity to implement changes to our immigration system, aimed at supporting the Government’s strategy of improving the country’s economic performance and our standard of living.

This will be a significant shift from the pre-Covid immigration settings, in both the volume and composition of migrant workers who enter New Zealand. The objectives of the proposed rebalance include reducing the flow of low-skilled workers and encouraging investment in higher skill levels and technology.

One of the major changes will be the introduction of a new work visa, replacing six other visas which have been gradually phased out. The essential skills work visa, which has been the immigration path for many skilled workers, closes to new applications on July 3, 2022.

New work visa starting July

If a business wants to employ a migrant worker in New Zealand, the worker needs to hold a valid visa with the correct conditions. The new visa, called the "accredited employer work (AEW)" visa, opens to applications on July 4, 2022. Under the current work visa scheme, the responsibility of applying for and retaining the correct visa has largely fallen to the employee. In comparison, the AEW visa is employer driven, and places additional obligations on the employer to ensure they are complying with the new framework.

If a business wants to hire a migrant worker (who does not already hold a visa with appropriate work conditions) from July onwards, it will first need to obtain accreditation and perform a job check before the worker can apply for a visa. The employer must demonstrate to Immigration New Zealand (INZ) that it is a genuine, compliant business and is committed to settling migrants and minimising exploitation. Only once these two steps are undertaken, can the worker apply for the visa.

It is an offence for an employer to hire someone without the correct visa or work conditions, whether they were aware of the legal requirements or not. A breach of the new visa requirements could see an employer liable to a fine of up to $50,000, and so obviously employers wanting to apply under the AEW need to clearly understand the requirements.

Migrant exploitation

Another focus of the immigration rebalance is to continue to guard against migrant exploitation in the workplace. In July 2021 the migrant exploitation protection visa was introduced to support migrants to leave exploitative situations quickly but still remain lawfully in New Zealand. To obtain this visa, the worker must first make a report to Employment New Zealand, which will then investigate the complaint. An employer found guilty of migrant exploitation can be imprisoned for up to seven years and can be fined up to $100,000.

The minimum accreditation requirements for the new AEW visa include a commitment by the employer to minimise the risk of exploitation. Employment New Zealand has developed online modules on employment rights which must be completed by the migrant worker, and anyone involved in making recruitment decisions. If an employer is looking to hire six or more migrant workers, they also need to show a commitment to improving pay and conditions for all employees over time. If INZ discovers any breaches of these accreditation requirements, then accreditation will be revoked.

Employers now subject to additional scrutiny

The immigration rebalance and associated AEW visa aims to streamline the process of hiring a migrant worker, but it also subjects employers to additional scrutiny from INZ, with a major focus on compliance. It is critical that employers ensure that their recruitment and on-boarding processes comply not only with relevant employment law, but also with their obligations under immigration law and policy. Again, under the new system there is a heavy onus on employers to understand their compliance requirements, and to meet those requirements or face the consequences.

The introduction of the AEW visa has been delayed several times, but it appears that the opening date of July 4, 2022, stands firm. Like any major change to immigration policy, there are likely to be teething problems as both employers, their advisers and INZ officers alike, adjust to the new system.

If you are a migrant worker, or a business considering hiring migrant workers in the second half of this year, expert advice is essential to navigating the new AEW visa. Mistakes can be disastrous for an immigrant trying to make a new life in New Zealand and can have a lasting impact on an employer’s ability to hire migrants, with follow-on consequences for their business.

With the phased reopening of the border just around the corner, employers should be taking advice now and getting the correct processes in place so that they can continue to hire migrant workers and remain compliant with the new framework.

 - Sarah Caulton is a specialist immigration lawyer practising with Dunedin law firm McMillan & Co.