2018-Jun 15: Clarification regarding holiday pay and payments for work already undertaken

Visa Pak 361 - Clarification for staff on whether receiving payments (including) holiday pay for work already undertaken falls within the definition of 'work' for immigration purposes.

Visa Paks

15 June 2018

Clarification regarding holiday pay and payments for work already undertaken

Recent queries from licensed immigration advisers have highlighted that there is some confusion amongst staff as to whether receiving payments (including holiday pay) for work already undertaken falls within the definition of ‘work’ for immigration purposes.

Immigration instructions and the Immigration Act are concerned with the activity of work, and any restrictions around work (where someone is on a visa without work rights) are around carrying out work activities as opposed to receiving a payment or entitlement alone.

A common scenario we come across is where an applicant is wishing to move from an open work visa to an employer-specific work visa and will be continuing to work for the same employer. As per the interim visa conditions table (refer I1.10), the applicant may be granted an interim visa with visitor conditions if their current visa expires while the new application is being processed. In this scenario the applicant is not allowed to undertake any further work activity while on the interim visa, but there is no issue with them receiving outstanding pay or taking annual leave during this time and receiving pay in accordance with the Holidays Act.

If there are any concerns, it will be for the applicant to satisfy an immigration officer that they were not undertaking a work activity during this time and were instead only receiving outstanding payments or leave entitlements they had earned previously while lawfully working in New Zealand.