The importance of proof

... or why a visa application is not like a drivers license application.

many clients are surprised at the amount and detail of supporting documentation or evidence required for a visa application. When you look at INZ's website it looks quite simple and straightforward, almost like applying for a drivers license or passport. In these applications all you need to do is submit the one document that has the information they need, and the authorities are happy. A visa application is not the same, it has more in common with a court trial or job interview than a drivers license application.

Proving you meet the criteria

In either type of application you must prove that you meet the criteria set down by the relevant authority. So to prove your identity you must supply your passport or birth certificate for example. This is the same for immigration as well, and it is easily verified so there is usually no question about it in either case.

But for example to prove that you live at a specific address may be different. Many authorities in NZ will like to see a utlity bill in your name at the address you have written down on the application form. Just one is sufficient for a library card application for example. The reasoning is that if you have in your hands a document that has been sent through the post to the stated address, then it is highly reasonable that you live there. Otherwise it would be more difficult for you to receive the letter before the real occupier threw it away. However, if you really wanted to, it would not be difficult to have one utility bill sent to your friend's address, and they could hold it for you. This is the difference of an immigration application, and INZ almost always suspect that applicants are not being honest, so that is why a single document is not enough.

The range, quantity and quality of docuements should be enough to convince the case officer that you meet the criteria. Depending on the situation this may be enough, or you may need more. It all depends on how strong the application is overall, and how much the case officer will suspect.

Visa applications as a legal challenge

When we make an application for any category of visa we approach it as a legal challenge. This is normal because INZ approach applications in the same way. Even though the information on their website is made to look kind and helpful, this does not mean that they will assess your application kindly or helpfully.

When INZ receive an application it goes through several stages.

1. Initial check - are the minimum documents present? This is the really basic stuff that the application form tells you that you must include. if this is all present, then INZ will accept your application for processing (where it will sit for some time before being allocated to a case officer)
2. Assessment - The case officer checks that the documents are genuine, that there are no fake documents or information, they compare against previous applications and what you have provided or stated in them. Have you proved beyond reasonable doubt that you meet the criteria. The case officer must be convinced that you do, and this is often where applications fail. This is the stage where we may pre-emptively attack to make a strong point before the case officer has time to suspect. if we can change how the case officer sees the evidence to a more positive way, then it may mean the difference between success and faliure or a fast application and a slow one.
3. Approval, decline or PPI letter - depending on stage 2, INZ may approve the visa quickly, decline it if it if offshore or send a PPI letter for more proof if it is onshore. A PPI letter means that the application is heading for a decline, but INZ must give you a chance to defend yourself first. if you wait for a PPI letter before gathering strong evidence for your case it is often too late.

The way an application is approached can make a very big difference to the speed that it is processed and the outcome as well. Using a professional for your application means that you are not trusting to luck. It does not mean that you are guaranteed to succeed, but it means that you won't fail because of a badly prepared application. Many people who should actually get a visa are declined because they haven't done the application properly and using a LIA mitigates this. 

Take a look at our YouTube video on this subject

https://www.youtube.com/watch?v=tLwIzVU9TlQ&t=18s 

Immigration Post Covid-19

Now that NZ has exited from lock-down and an election is coming up soon, immigration is again going to go through some big changes. This is to be expected and we will all need to adapt to the situation to make the best out of it. NZ has a highly flexible immigration statutory framework so changes are frequent, even without elections and global pandemics.

Work related visas

These are going to be the biggest issue to deal with in the coming year or so I think. Work visas and residence based on work such as the Skilled Migrant category are even now feeling increased pressure. Employer's stability, very strict application of whether the legal criteria have been proved to have been met, suitable workers and correct advertising are all being finely scrutinised. 

Gone are the days where you could drift through a work visa application and assume that INZ would gently ask for the required proof, or they would assume that it had been done properly because it had before. Even professionals are finding that we need to be able to solidly prove every fact in an indisputable way, where such level of proof was not required before. It has changed from in the past being careful not to put in too much evidence which creates an impression of overselling or covering up something, to putting in everything possible and still not having enough.

Employer issues

INZ will still be implementing employer accreditation as planned, but this has been postponed to early - mid 2021. The principles of examining employers and making sure the business is sustainable and legally compliant in every way is increasing post Covid-19 though. There is an assumption that many businesses will struggle or fail, so more pressure and scrutiny is being put on businesses to clearly prove that they are stable and compliant.

This should also be a wake up call for employers to set clear boundaries in how they engage in immigration related issues. retaining reliable staff is essential, so keeping migrant workers may be a big part of this for many employers. To retain a migrant worker is is vital that visa work is done properly, but also that tax obligations and other employer obligations are flawless. Employers must be clear in that it is illegal for them to do immigration work unless they are a licensed adviser. Doing a visa application for an employee is giving immigration advice in 99% of cases and it is reasonable to assume that if a case officer is looking for a way to decline an application, this is one potential reason for doing so.

Residence

The residence program is being reviewed at present, but the Government has implied that a decision on that is not likely to happen until after the election. The skilled migrant category EOI selection is paused, but there is no indication yet when this will reopen. Some internal discussions have indicated that it may be soon, but there is nothing firm on that.

Processing times are at around 1/1/2 years and this is probably not going to change any time soon.

Partnership residence and WTR categories are still running as usual, and being processed as normal. Of all the categories possible the WTR category is the smoothest category for residence. Partnership hasn't changed so much, but at the residence level this has recently been assessed quite strictly. 

We are now at Covid-19 level 1, so what has changed?

In terms of immigration, the biggest change is that INZ's onshore offices are open again. This means that visa processing has increased and we can now continue providing pathways for clients to manage their immigration situation more effectively. All focus is now on helping clients continue working, planning solid pathways towards residence and other similar matters to stay lawfully in NZ.

The biggest barrier to this is that INZ is only legally able to issue work visas when they are convinced that there are no NZers available for the job position. Since after Covid-19 unemployment has risen, INZ are convinced that theer should be many more Kiwis who can fill job vacancies rather than migrant workers. This is making work visa applications much more difficult than before. There is definitely a lot more work involved in getting a successful work visa compared to pre Covid-19.

The only other significant difference onshore is that SMC EOI applications are still currently on hold and so new residence applications cannot proceed under this category for the moment.

Offshore clients

The borders are still officially closed and the only people who can travel to NZ are essentially the same as for Covid-19 level 2, but partners of citizens and residents can now travel to NZ by themselves rather than having to travel together with their partner. In most respects the difficulty of offshore non-residents coming to NZ has not eased very much. This is likely to change only when the Government feels that the international situation is suitable to relax border restrictions.

Summary of status update 13/05/2020

Visa processing update

Visa processing capacity growing all the time. 70% of onshore Immigration Officers are currently able to work, this will increase as staff re-enter the office under Alert Level 2. All offshore offices remain closed.

INZ is now able to resume the processing of paper applications such as residence class visa applications and formally prioritise both residence class and temporary entry class visa applications.

Residence visa processing priority 

Priority will be given where the applicant is in New Zealand. For onshore applications priority will be given as below:

• For Skilled Migrant Category (SMC), priority will be given to applications with job offers where:
  • Applicants have an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
  • Applicants hold current occupational registration where registration is required by immigration instructions.
• For Residence from Work Category applications (Talent (Accredited Employer), Talent (Arts, Culture and Sport), South Island Contribution, Religious Worker and Long Term Skill Shortage List), priority will be given to:
  • Applications which include a job offer with an hourly rate equivalent to or higher than twice the median wage (currently $51.00 per hour or an annual salary of $106,080 or more);
  • Applications which include a job offer which requires occupational registration where occupational registration is required by immigration instructions.

Second priority will be given to residence class visa applications where the applicant is out of New Zealand.

In terms of temporary entry class visa applications, priority will be given to applications for critical workers to support the Government response to COVID-19 and for other temporary visa applicants that are in New Zealand.

 As INZ transitions through the various alert levels processing will be resumed for most of the application categories.

Essential Skills labour market test requirement

Immigration instructions require an immigration officer to be satisfied that, at the time the application is assessed, there are no New Zealanders available to do the work offered, in order to grant an Essential Skills work visa. As part of the application process, employers must provide evidence that they’ve taken all reasonable steps to hire a New Zealander first. Employers wanting to employ overseas workers for ANZSCO skill level 4 and 5 occupations are also required to provide Skills Match Reports and advice from the Ministry of Social Development (MSD).

Because of higher unem[ployment, immigration officers may require updated information when assessing Essential Skills work visa applications that the employment offer remains valid and continues to be sustainable, and that there remain no New Zealanders available regionally and able to do the work on offer.

Concerns that New Zealanders may be now available, or that employment may not now be genuine and sustainable will be considered potentially prejudicial information (PPI) and applicants will be given an opportunity to comment and provide further information before a decision is made. This will allow applicants to seek further information from their employer regarding the possible increased recent availability of New Zealanders, and confirmation that the employment remains valid, and provide any other relevant information they believe addresses the concerns raised.

Updated FAQ 

What date will be used as the lodgement date of my application that I couriered in / posted in?  

The received application date will be the date that is shown on the courier consignment note.  If there is no date to be found, the received date applied will be the date INZ opens your application at NaDO.

What if I want to dispute the date of lodgement of my visa application?

INZ understands that it has been difficult to complete and submit paper applications during COVID-19 lockdown. Disputes of lodgement dates may be considered on a case by case basis once the application has been allocated.

I have been granted an extension to my visa under the Epidemic Management Notice. Will the visa application I submitted still be processed?

Yes.  Applications will continue to be processed in line with processing priorities during COVID-19.

What if my paper visa application is incomplete because I have not been able to get all the required documents during the Covid19 lockdown?  Will my visa application be returned due to failing to meet mandatory lodgement requirements? 

No.  INZ understands that it may have been difficult to submit all required documents with your paper application.  INZ will note the missing documents at lodgement and request that you provide the mandatory documents as soon as you are able. INZ will not be able to process the application until the required documents have been received.

Why can't i vary my visa conditions?

Only temporary migrants already employed in essential services can vary their hours and be redeployed to do other roles within their current workplaces or do their current role in different workplaces (but within same region) to help essential businesses keep operating while New Zealand remains at Alert Level 3 or 4 and six weeks after that.

All work visa holders who are not employed in essential services may only work for the employer(s) specified in their visa conditions until a Variation of Conditions or new visa has been granted.

FAQs for employers

Why am I being asked for updated information about the availability of New Zealanders?

Under current immigration instructions, INZ needs to balance facilitating businesses getting the workforce they need, and protecting the employment opportunities of New Zealanders.

COVID-19 has had significant impacts on New Zealand’s job market, and unemployment rates are rising. Assessing applications only on information provided before the impacts of COVID-19 does not align with the requirement to protect the employment opportunities of New Zealand. This means that INZ needs to ensure that no New Zealanders are available to do the work being offered, before visas are granted to any migrant employees.

Do I have to re-advertise?

Employers aren’t required to re- advertise the vacancy, but they may need to provide updated information that there are still no New Zealanders available in this current job market, to the best of their knowledge. Employers may choose to re-advertise as part of providing further evidence.

What does genuine and sustainable mean? My business is receiving the wage subsidy, does this matter?

The employment offered to Essential Skills visa applicants needs to be for real and genuine work, for at least 30 hours per week. Essential Skills work visas are granted for a period of either 12 months, three years, or five years, and consideration needs to be given to whether the work being offered is going to remain available for the entire duration of the visa. It’s likely that New Zealand’s economic situation is going to continue to change, and employers must be confident in their ability to continue trading (to the best of their knowledge).

The wage subsidy provides support for business who have experienced a reduction in revenue, and doesn’t necessarily mean the business won’t be sustainable going forward. Employers receiving the wage subsidy can still hire Essential Skills work visa applicants. 

I’m confident my business and the employment is sustainable. But what happens if my business’s situation changes, and I can’t keep my workers on?

If your business situation changes then you must go through normal employment law processes. Any work visas holders who are made redundant would then need to obtain new employment and either obtain a new work visa or vary their existing visa to begin that new employment if they wish to work and remain in New Zealand.,

What kind of things does INZ usually take into consideration if there are no New Zealanders available for the role being offered?

INZ considers a range of factors when determining whether any suitable New Zealanders are available for the work. This includes, but isn’t limited to, things like:

• the employer's case in support of an individual worker's application; and
• evidence of a genuine attempt by the employer to recruit New Zealanders, through advertising and the use of other channels, such as recruitment agencies
• advice from Work and Income about the availability of New Zealand citizens or residence class visa holder workers to do the work offered; and
• advice from relevant stakeholders within the particular industry, including unions

How long will it take to process the Essential Skills work visa application I’m supporting?

Due to the complexities of the situation and INZ’s current limited visa processing capability, we’re unable to give exact timeframes of when these applications will be processed. However, we aim to do so as quickly as possible given the current constraints on visa processing resources.

Can I submit this further evidence now, even though I haven’t been asked for it yet?

INZ will request additional evidence at the time the application is being assessed.

What about if the role I want to recruit for is on the skills shortage list?

No New Zealanders are considered available if the job offered is on one of the skills shortage lists, and the applicants meets the qualification and work experience required by the list for that particular job.

What if I want to hire someone under the Skilled Migrant Category?

There is no labour market test for applications under the Skilled Migrant Category (SMC).

I need to hire someone but I can’t pay them a full wage like I normally would. How does this impact the work visa application?

To be granted an Essential Skills work visa, the applicant must be paid the market rate for the role. Where you are unable to pay them the normal rate for the role, then you should provide evidence that either the market rate for the role has changed, or reasons why the visa should be granted despite the market rate not being paid. These applications will be assessed on a case-by-case basis. The wage or salary paid must also always be above the minimum wage. The pay offered may also affect the duration of the visa and whether the visa holder is able to support visas for family members.

What if I want to recruit migrant workers in the future – how long will these changes be in place?

Decisions around changes to Immigration Instructions are made by the government. INZ and the wider Ministry of Business, Innovation and Employment is working through possible options for longer term solutions, and providing advice to the Minister of Immigration. This is a rapidly evolving situation and we’re unable to give a timeframe at this stage, but will keep employers informed and provide more information as decisions are made. In the meantime INZ will continue to process visas according to current Government policy as expressed in immigration instructions.

There might be New Zealanders available somewhere, but people aren’t able to move regions due to COVID-19. Does this mean I still have to hire them over migrant workers?

Employers who are unable to recruit New Zealanders for a vacancy due to COVID-19 restrictions should be able to provide evidence of particular barriers where this is the case.

If I can’t hire the migrant worker I need, I’m not going to be able to keep my business running. What options are available?

Essential Skills work visa applications will be assessed in date order [which basically means there are no options available and you need to be organised quickly].

Are we able to hire migrants for a short period of time just to see us through, and move to hire New Zealanders later down the track?

Essential Skills work visas are granted for the duration that the employment is offered, for a maximum of period of 12 months, three years, or five years (depending on the skill level of the role). Employment law may determine what are considered sufficient reasons for offering employment for a fixed term and you may wish to seek legal advice on your options.