Employer guide to recruiting offshore staff

Written by Aaron Martin, principal lawyer at NZIL

With the New Zealand economy booming, we are seeing an increasing demand from many business sectors to recruit from an offshore skilled labour talent pool. We created this guide to help employers understand what they need to do when considering hiring a skilled migrant.

I’m a business owner who wants to hire a migrant. What do I need to do?

If you want to employ someone from the overseas pool, your potential hire will need to apply for a work visa.

In most instances it will not be possible for your hire to obtain a work visa without a job offer, unless they are in a relationship with a New Zealand citizen resident, seeking refugee status, or have completed a New Zealand university-level qualification. In these situations most will hold work visas allowing employment with any employer.

Employers wanting to hire a migrant who claims to be already allowed to work in New Zealand can use the Immigration New Zealand service VisaView to check whether this is correct. This service allows registered employers to check whether a person who is not a New Zealand citizen is allowed to work for them in New Zealand. Alternatively it allows employers to confirm New Zealand passport information provided by the potential hire, and therefore confirm New Zealand citizenship and entitlement to work in any job.

What visa should my prospective hirer apply under?

The Essential Skills Work Visa is the largest category of work visa issued to people who have been recruited by New Zealand businesses. If you want to offer a job to a foreign national, that person will most likely apply for this category of work visa.

There are some exceptions to this, but it depends upon the nature and purpose of the employment.

Granting of the Essential Skills visa is dependent upon you, as the employer, demonstrating that you have advertised the job locally and been unable to recruit a New Zealand citizen or resident from the local labour market. Evidence of the attempts to recruit from the local labour market are key to success here. The only exception is if the role is an area of skills shortage.

What about the skills shortage list? How does that work?

If the role you are seeking to fill is on a “skill shortage list”, you don’t need to produce evidence of attempts to recruit locally. The shortage lists cover occupations that are in high demand in New Zealand. Check which roles are currently on the list here.

Note that shortage lists are liable to change frequently depending on current need, with a review of them occurring every quarter.

There are three types of skills shortage lists.

· Long term skill shortage list: occupations where there is a sustained and ongoing shortage of highly skilled workers both globally and throughout New Zealand.

· Intermediate skill shortage list: occupations where skilled workers are immediately required and there are no New Zealand citizens or residents available to take up the position.

· Canterbury skill shortage list: occupations in critical shortage in the Canterbury region following the 2010 and 2011 earthquakes.

When applying for a visa for a role on the skill shortage list, it is important you understand:

· Which shortage list to use

· Whether the role being offered substantially matches the description of the role referred to in the shortage list

· Whether the prospective employee has the qualifications and experience referred to on the list.

What restrictions on employment come with the work visa?

Any work visa issued will be subject to the condition the holder work only for that employer and in the offered position and location.

Depending on the skill level of the job, the work visa will be valid for 1, 3, or 5 years.

Isn’t it more trouble than it’s worth to employ from overseas?

Employers in New Zealand harbour a few misconceptions about the process of recruiting staff from overseas.

One thing employers are concerned about is a fear of onerous sponsorship obligations. However, under the legislation, sponsorship is discretionary rather than mandatory.

You don’t need to sponsor your employee in order to hire them, and in fact it is very rare for a New Zealand employer to be asked to sponsor an employee’s work visa application. Sponsorship is requested only if an officer considers there is a risk associated with the visa applicant that needs management by sponsorship.

Another worry that puts employers off recruiting from overseas is the fear the process will require a mountain of paperwork. Although essential documentation is certainly required, it is actually easy to hand and pretty basic.

How long will the visa application take?

A work visa application can be put together relatively quickly, and usually takes 25 working days to be processed. The application can also be processed through Immigration New Zealand’s online system, which can facilitate very quick turnaround of anywhere between 48 hours to one week.

Why might the visa be declined?

In instances where advertising for local job applicants is required, Immigration New Zealand can decline visa applications if it believes any of these apply:

· The advertising was conducted in a manner intended to discourage or limit the ability of local candidates to apply or qualify for the role

· The role was one for which a person could easily be trained

· The advertising was clearly tailored to ensure that only the work visa applicant could meet the employer’s criteria for hire.

As part of the Ministry of Business, Innovation and Employment, Immigration New Zealand must also police labour laws in New Zealand. Consequently work visas can also be declined if Immigration New Zealand:

· Does not consider an employer to be compliant with labour laws

· Does not consider an employer to be offering terms and conditions of employment (including pay rate) at market standard.

When would I need help with my application?

There are 75 different types of work visas, with 11 categories that may be relevant to a prospective employer. The category an employer should use depends upon the circumstances necessitating the hire, or the circumstances of the employee or prospective employee. And each category has its own differing criteria and documentation requirements. It can be a minefield for people to negotiate the complexities of these requirements unaided.

Can’t I just use my HR team to handle this?

The ability for people within HR teams to provide immigration advice is restricted by the requirement for those giving advice to hold a license, or to be exempted from holding a licence, to provide such advice. Simply telling a person how to answer a question on a form is considered immigration advice. And if such guidance is given in the absence of a licence (or an exemption from needing a licence) the person giving the advice risks 7 years in jail and/or a $100,000 fine.

The Immigration Advisers Authority has made it clear: just because you may be employed as an HR specialist within a company, you are not permitted to provide immigration advice to the company, to employees, or to prospective employees in the absence of a license (or an exemption from needing a licence).

Significant problems can also be caused by the failure of people in HR teams to understand how shortage lists work and how they interface with the criteria for the grant of a work visa.

At New Zealand Immigration Law we are here to solve those problems and avoid applications running into needless difficulty. We can also assist you to gain permission to recruit multiple workers into New Zealand with one application rather than several single applications. This will save you time and money.