Work Visas - 101
For most migrants, securing a Work Visa is the first step in a much bigger process, leading towards Residence, and so it can often be the most important mountain to climb and hurdle to overcome. Often it is the end result in what could have been a very lengthy and frustrating job search, opening the doorway to being able to settle and eventually live here permanently. For employers, on the other end of the equation, it means securing the skills that they desperately need, which in the current climate can often be the difference between a business thriving or even just surviving.
With so much at stake, it is important to understand how these temporary Visas function, because whilst the Government has tried to simplify the process, rolling six different Visas in to one, there are still things that both applicants and employers need to be aware of. Having a Work Visa usually comes with specific conditions attached and it is crucial that you abide by those conditions (both employee and employer), in order to remain here and work lawfully. For employers, ensuring you are hiring only those with the correct Visa status can be the difference between staying Accredited or not as well as hefty fines and penalties for breaking the rules.
This summary is a broad outline of what applicants and employers should look out for and be aware of, however it doesn’t replace the rule of thumb, to seek specific advice for your own situation, through a licensed adviser.
Work Visas come in different shapes, sizes and flavours, however if we look at what they allow an applicant to do and the conditions attached, we can broadly split them into four different categories. We have summarised each category below for some of the key Visa types (not all of them) along with the conditions that apply and how those conditions work.
Work Visa - Employer Supported
This category represents the bulk of the Work Visas issued and involves an applicant, securing an offer of employment, and then being granted a Work Visa to undertake that employment. The three main Visa types within this group are:
Accredited Employer Work Visa or AEWV (opened in July 2022)
Essential Skills Work Visa (closed in July 2022)
Work to Residence Visa (the Accredited Employer version of this was closed in October 2021)
The current Accredited Employer Work Visa (AEWV) replaced the Essential Skills Visa in July 2022 and was designed to roll several other Work Visa categories in to one, simple, streamlined process. There are however still plenty of people who hold an Essential Skills Work Visa, which will eventually expire and need to be replaced with an AEWV.
These three Visa types are employer supported, meaning that to secure one, there needs to be an offer of employment, an employer (Accredited with INZ for the AEWV) and for the most part a specific location of employment. These are the conditions that the applicant is beholden to and must abide by. If an applicant does not undertake the role specified or does a different job, in a different location or works for another employer, then that is a breach of the conditions, which creates a significant problem and can lead to the Visa being cancelled or an applicant being made liable for deportation.
To change any of these details (occupation, employer and location) requires either a Variation of Conditions (if applicable) or a completely new Work Visa to be filed. It is really important for applicants to understand that the conditions need to be followed and for employers to also ensure that applicants remain within the boundaries of their Visa. If you are an employer, approached by a candidate who has one of these Visas, chances are, it would need to be changed or varied, before they could take on a new position with you.
Open Work Visa (No Conditions)
The majority of the next group of Work Visas are issued to partners - either the partner of a Work Visa holder or the partner of a New Zealand Resident or Citizen. These Visas are referred to as “Open Work Visas” because they allow employment in any role, for any employer and in any location. These Visas even enable applicants to be self-employed or work as contractors.
Open Work Visas were routinely issued to partners up until 31 May 2023, when the rules were changed slightly for some applicants. In the current system (post 31 May) the following partners can still secure this type of Open Work Visa with no conditions attached:
Partners of NZ Residents or Citizens
Partners to Work Visa holders, where the main Work Visa holder is employed in a role on the Green List or earns twice the median wage (currently $29.66 per hour).
Partners that already hold this Open Work Visa (issued before the change on 31 May) can continue to use and hold this Visa until it expires. When it does expire, they will be subject to the new rules and may have to secure the Open Work Visa outlined below. There are also other Open Work Visas for those who complete their studies here. These are not impacted by the 31 May changes and their partners would still qualify for the Open Work Visa as well.
Open Work Visa (With Conditions)
The third group are Visas that allow employment in any role or occupation but do come with some restrictions - these are the Visas issued to partners of Work Visa holders, where the main Work Visa holder has an AEWV or Essential Skills Work Visa but is not employed in a Green List role or paid twice the current median wage. These changes were introduced for all partner Work Visas lodged from 31 May 2023 onwards.
These partners still secure a Work Visa that allows them some flexibility in who they work for and what they do, but they must work for an Accredited employer and must earn at least the median wage ($29.66 per hour). They can still work part-time or full-time, they can do any work that they are offered regardless of skills and experience, but they must earn that salary and work only for an Accredited employer.
The employer in this situation does not have to submit a job check (which they would ordinarily do to support someone on an AEWV) and applicants are free to move between Accredited employers and roles, without updating their Visa. These Visas do not however allow self-employment or working as a contractor.
For employers, particularly those looking to employ temporary staff on Open Visas, it is really important to make sure that either the applicant has a fully Open Work Visa with no conditions (outlined in the previous section) or they as the potential future employer are Accredited and the role on offer pays at least the median wage.
For applicants on this Visa who don’t work within those two conditions, it can lead INZ to find them in breach, particularly if they chose to apply for Residence at some stage (which is likely where INZ will be checking that those conditions have been met).
Other Visas & Future Changes
There are other Temporary Visa situations that have different rules, for example Student Visas, that allow work for 20 hours per week (full time in the holidays) or Working Holidays that allow full time employment, but usually not in permanent roles, or even Critical Purpose Visitor Visas with work rights, however to cover every single one of them off would involve a much bigger blog.
In terms of future changes, the key one at this stage, as it relates to Work Visas is the fact that in 2024 (date to be confirmed) the Government plans to apply the Accreditation process to all employers who employ a migrant, regardless of the Visa they hold. So even if you wanted to employ someone on an Open Work Visa, with no conditions, you would need to have secured Accreditation first. This wont apply to every single Work Visa (it would be silly to add it to Working Holidays for example) but it will extend the reach of the Accreditation system greatly. Thankfully, if handled correctly, Accreditation is not too difficult to secure and to retain.
Summary
The key thing for applicants, is to make sure they are familiar with the conditions of their Visa, which are always stated on the Visa label itself. Those conditions will specify the following:
Start and expiry date of the Visa.
Who the holder can work for - either a specific employer or for anyone.
What the holder can do - either a specific role or any role.
Where the holder can work - either a specific location (region) or any location.
Other conditions - e.g. minimum income required, hours or even whether the employer must be Accredited or not.
For applicants, we encourage them to check the conditions when they receive the Visa, ensure they are correct and to clarify anything they are unsure of with INZ or their adviser first. Then they need to abide by those conditions and if something changes, ensure they change the Visa accordingly. If you are offered a new job, make sure you confirm whether a variation or new Visa is required, before you start that new position.
For employers, before you consider taking on a migrant employee, who holds an existing Work Visa, ensure that the Visa either allows them to work for anyone, anywhere, doing anything, or if it doesn’t, then you need to ensure that the applicant is aware that they will need to replace or vary the Visa first.
The consequences of getting this wrong for applicants and employers can be pretty severe and usually it is small things that create the biggest problems. If you are an applicant, wanting to change jobs or wondering if you are on the right track with your current Visa, get in touch and if you are an employer trying to work out if your next recruit is lawful, we can also assist in clarifying those details.
