2015-Jan 23: Variations of Conditions (VOC) – Labour Market Test Requirements

Visa Pak 194: Advice for staff on when Labour Market Tests are required when a client is applying for a Variation of Conditions.

Visa Paks

23 January 2015

Variations of Conditions (VOC) – Labour Market Test Requirements

Previous advice has been provided outlining when holders of temporary entry class visas should apply for a VOC and when an Immigration Officer (IO) may grant a VOC. Further information is provided in IAC 13/03 varying the Conditions of a Temporary Work Visa.
In the case of Essential Skills work visa holders (E3.25.1 (d)) a VOC can only be granted if:

  • The applicants employer is the only condition being varied, or
  • The new occupation is on one of the Essential Skills in Demand (ESID) lists and the applicant meets the requirements of the list (in this case multiple visa conditions can be varied).

Is a labour market test (LMT) required when considering a VOC?

When an applicant’s employer is the only condition being varied (e.g. not location, visa duration or occupation) then a LMT is NOT required. In these cases the previous LMT confirmed that the labour market for that particular location (e.g. Auckland) had been tested for the duration of the visa. Where the employer is the only condition changing evidence of advertising for the position is not required when considering a VOC.

Recent changes were made to the Application for a Variation of Conditions or Variation of Travel Conditions – INZ 1020, and the Employer Supplementary Form (ESF) – INZ 1113 that require applicants to provide an ESF when requesting a VOC. Section C of the ESF relates to non-availability of New Zealand residents. This section must only be completed if an applicant is applying under Essential Skills, not a VOC. A VOC is not an Essential Skills application.

When considering a VOC, Immigration officers should consider:

  • whether the applicants request is merited, and
  • meets relevant immigration instructions, and
  • would still meet the objectives of the instructions which the visa was granted under.

The objective of work visa instructions (W1.1) is to contribute to the overall work instructions by not displacing New Zealanders from employment opportunities or hindering improvement to wages or working conditions.

When considering a VOC request an IO can consider that relevant immigration instruction (WK2.5) and the first part of the above objective ‘not displacing New Zealanders from employment opportunities’ has been met. An IO was satisfied at the time of the original application that the labour market had been tested (and was not likely to change for the duration of the visa) and that attempts had been made to attract and recruit New Zealand citizens or residents.

The second part of this objective ‘hindering improvement to wages or working conditions’ refers to the conditions contained in the employment agreement i.e. wages, holidays and leave provisions. The new employment agreement must be considered and still meet the objective when considering the VOC.

When is a new work visa application required?

If the applicant is requesting a change to any of their visa conditions other than the employer e.g. occupation, visa duration or location and the new occupation is not on one of the ESID lists, then the applicant must submit a new work visa application and meet the labour market test.

Action

  • Staff should note when considering a VOC where the applicant’s employer is the only condition being varied (e.g. not location, visa duration or occupation) a LMT is NOT required.
  • The new employment agreement needs to meet the objectives of the instructions which the visa was granted under.
  • If an applicant wishes to change any of their visa conditions, other than the employer and the new occupation is not on one of the ESID lists a new application is required.
  • Staff should ensure they have read IAC 13/03 varying the Conditions of temporary work visas.