The Update
On 13 May 2020, Immigration New Zealand announced the new Covid-19 labour market test processing guidelines for immigration officers to follow. Generally speaking, for most Essential Skills Work Visas (where the migrant employee does not meet the requirements for any skill shortage list), employers need to carry out a labour market test to demonstrate that they have made genuine attempts to advertise the job vacancy to recruit suitable New Zealand citizens, permanent residents, or residents (New Zealanders). For an Essential Skills Work Visa to be granted, the immigration officer must be satisfied by the employer’s evidence of genuine advertising attempts.
Previously, employers would carry out the labour market test just before their migrant worker submits their application. The application would then be assessed by an immigration officer based on the existing labour market test. Now, immigration officers must be satisfied at the time of assessment that there are no suitable New Zealanders available. This means that immigration officers may request further information and evidence from the employer at the time of assessment.
Now, immigration officers must be satisfied at the time of assessment that there are no suitable New Zealanders available.
How It Works
A Covid-19 labour market test potentially prejudicial information or “PPI” concern letter will be sent to the migrant worker. Around the same time, many immigration officers will also send a questionnaire or make a verification phone call to the employer. The employer questionnaire or verification phone call will check for updated worker numbers, the job validity, if there are changes to the job offer, if there have been any redundancies, and if the employer has continued to try to hire New Zealanders.
What This Means for Employers
Employers will need to be prepared to provide further labour market test evidence when their migrant worker’s application has been allocated to an immigration officer. It is likely that employers will receive a questionnaire, verification phone call, and/or labour market test document request from their migrant worker to answer the migrant worker’s potentially prejudicial information letter from their immigration officer.
Although immigration officers cannot specifically request an employer to readvertise, practically, this seems to be the most efficient option. If the employer lists the advertisement on TradeMe or Seek, employers will need to show evidence of how many applicants there were. Advertisements can also be supplemented with evidence such as training records of New Zealander staff and industry evidence of certain role shortages. Employers cannot use personality preferences (whether a person is the right “fit” within the organisation) or the unwillingness of a New Zealander candidate to work at a particular remuneration level as an excuse to justify why a New Zealander is not suitable for the job vacancy.
Immigration officers may also ask employers to confirm that the job offer remains valid and whether they expect the employment to be sustainable over the duration of the employment offered. The fact that an employer has received funding from the Covid-19 Wage Subsidy Scheme does not by itself indicate that the employment offered is non-genuine, unsustainable, or not full-time.
It seems that the job offer validity confirmation is also now a part of the Variation of Conditions application process.
This update has also noted that no Essential Skills Work Visas will be granted for ANZSCO skill level 5 occupations unless an employer is able to demonstrate to the satisfaction of an immigration officer that no New Zealanders are able to be trained to do the work.
Although immigration officers cannot specifically request an employer to readvertise, practically, this seems to be the most efficient option.
What This Means for Migrant Workers
Migrant workers should expect to receive a Covid-19 labour market test potentially prejudicial information letter. This will likely cause further delays. Migrant workers should discuss the new Covid-19 labour market test process with their employers so that the employers can start preparing before the potentially prejudicial information letter arrives.
Skills Match Report Update
The Ministry of Social Development updated the process to request for a Skills Match Report. This change has been in place since 15 June 2020. The Ministry of Social Development will still provide employers with an outcome email, but will also require the employer to list the job vacancy on the new jobs portal. The jobs portal will generate the new Skills Match Report. Both the Ministry of Social Development email and the job portal Skills Match Report must be provided to Immigration New Zealand with the relevant Essential Skills Work Visa.
How We Can Help
The labour market test process will need to be managed carefully. We can assist by helping employers to review the content of the advertisements, the recruitment process, and relevant documentation. We can also assist employers and their migrant workers to respond to the Covid-19 labour market test potentially prejudicial information letter.
This article was written to provide general guidance only. It is correct at as the date of this article and is subject to further updates. Stay Legal is always happy to provide immigration guidance and solutions. If you have any questions, please do not hesitate to contact us. Please call us +64 7 575 2882 or email hello@staylegal.co.nz.
