2015-Oct 02: Exceptions to Instructions for Work Visas where an Entrepreneur Residence application is pending

Visa Pak 231 - Advice to staff about exceptions to Instructions for Work Visas where an Entrepreneur Residence application is pending.

Visa Paks

2 October 2015 

Exceptions to Instructions for Work Visas where an Entrepreneur Residence application is pending

Context

Applicants that have submitted an Entrepreneur Residence application are required to maintain their lawful status in New Zealand. On occasion the situation will arise whereby a client that has an Entrepreneur Residence application lodged will come to the end of their current temporary visa while their residence application is still being processed. Section 169(3) of the Immigration Act (the Act) states that "(w)hile a person is liable for deportation, the processing of any application by the person for a visa of a different class or type must be suspended”.

In order to avoid section 169(3) of the Act coming into effect such applicants are generally advised prior to the expiration of their temporary visas, to apply for an Essential Skills Work Visa as an exception to instructions (ETI) rather than a further Entrepreneur Work Visa by staff at Business Migration Branch due to the fee differential (of $270 compared to $3,200).

Immigration Officers (IOs) should, on a case by case basis, consider granting an ETI for those applicants with a pending Entrepreneur Residence application if the further work visa has been sought to enable them to remain in New Zealand and continue running their business.

If an IO does grant an ETI, they must explain their rationale as to why the ETI is being granted in AMS notes – this could include quoting this advice. IOs should continue to balance all other factors to ensure the benefits gained from the ETI are not outweighed by other circumstances where the grant of a further visa may not warrant an ETI, such as character issues, for example.

The duration of the visa granted as an ETI should be up to six months, with consideration given to the likely timeframes to complete the Entrepreneur Residence application.

IOs assessing work visas in these situations should feel free to contact the Business Immigration Specialist assessing the Entrepreneur Residence Visa application to consult with them regarding the likely completion timeframes and any other matter that they consider relevant to the decision.

Action

Please discuss with your team(s) and consider granting an Essential Skills Work Visa as an ETI, where it is considered appropriate, for applicants with an Entrepreneur Residence application pending.