W2.10 Generic work visa instructions

Unless specifically stated otherwise elsewhere in work visa instructions the requirements set out below apply to all applicants for work visas and all employers wishing to employ them.

W2.10.1 Requirements for applicants

Unless specifically stated otherwise all applicants for work visas must:

1. meet the requirements under Generic Temporary Entry instructions for:
   1. lodging an application for temporary entry as set out at E4; and
   2. bona fide applicants as set out at E5; and
   3. health and character as set out at A4 and A5; and
2. produce evidence to show that:
   1. they are suitably qualified by training and experience to do the job they have been offered; and
   2. they can meet any of the necessary requirements to obtain full or provisional New Zealand registration (see SM10 for the list of occupations requiring registration); or
   3. they have an offer of employment and evidence from the New Zealand Medical or Dental Council that they are eligible for registration subject only to attending a personal interview with a Council representative within one month of their arrival in New Zealand; and

      Notes:
      ~ For medical practitioners, registration within a 'special purpose scope of practice' is not registration for the purpose of a residence or work to residence application.
      ~Applicants who have been granted a visa in order to obtain registration as a nurse may only work in an occupation which is ANZSCO Skill Level 1 or 2.

3. not have held a work visa as a Primary Sector Trainee (WI18) in the two years prior to their current work visa application.

W2.10.5 General requirements for employers

See also Immigration Act 2009 ss 350, 351

1. All employers (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) wishing to employ non-New Zealand citizen or residence class visa holders to work in New Zealand must comply with all relevant employment and immigration law in force in New Zealand. Compliance with relevant New Zealand employment and immigration law includes, but is not limited to:
   1. paying employees no less than the appropriate statutory minimum wage or other contracted industry standard; and
   2. meeting holiday and special leave requirements or other minimum statutory criteria, e.g. health and safety obligations; and
   3. meeting the requirements of W2.10.15, W2.10.20 and W2.10.25.
2. Evidence or confirmation of past and future compliance with employment and immigration law may include but is not limited to:
   1. employment agreements with workers which demonstrate compliance, including, but not limited to, that all mandatory terms and conditions are included in the employment agreement, that any deductions are reasonable, and that any minimum standards included comply with employment legislation; and
   2. a recognised history with the Ministry of Business, Innovation and Employment of past compliance.
3. Immigration officers may also request other evidence or confirmation of the employer's past and future compliance with employment and immigration law.
4. To ensure that the objective of work visa instructions at W1(b)(iii) is met, immigration officers may require employers to provide evidence that the rate of pay offered to non-New Zealand citizen or residence class visa holder workers is not less than the market rate for New Zealand workers in that occupation.
5. INZ will decline an application for a work visa or employer status (such as accreditation, recognised seasonal employer, agreement to recruit or approval in principle) where the employer (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) does not have a history of compliance with employment law or where the employer is included on a list of non-compliant employers maintained by the Ministry of Business, Innovation and Employment) (see W2.10.15 and Appendix 10).

Notes:
~W2.10.5(d) applies regardless of whether a labour market test (including where an occupation is listed on the Essential Skills in Demand Lists (see WK3.10)) has been met.
~INZ will decline an application for a work visa or entry permission where it considers that granting the work visa or entry permission would undermine the integrity, credibility or reputation of the New Zealand immigration or employment relations systems.

W2.10.10 Offers of Employment

All offers of employment must be genuine and sustainable. Unless specifically stated otherwise all offers of employment should contain the following information:

1. name, address, telephone and/or fax number of the employer; and
2. name and address of the person to whom the job is offered; and
3. a full job description including:
   1. the job title or designation; and
   2. the address of the place of employment if different from that in paragraph (a) above; and
   3. the type of work, duties and responsibilities involved; and
   4. details of pay and conditions of employment; and
   5. the hours of work; and
   6. any qualifications, experience or training required; and
   7. the duration of the job; and
   8. how long the job offer is open.
4. To determine whether an offer of employment is genuine and sustainable, and to ensure that the objective of work visa instructions at W1(b)(iii) is met, immigration officers may consider whether the salary or wages offered meet the New Zealand market rate.
5. INZ will decline an application for a work visa where it considers that the employment was offered as a result of payment made or promised by the applicant (or their agent) to the employer (or their agent) in exchange for securing that offer of employment.

W2.10.15 Compliance with employment law

1. An employer (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) who supports a visa application, provides an offer of employment in support of a visa application, or applies for employer status must have a history of compliance with employment law.
2. A history of compliance with employment law includes, but is not limited to, meeting the requirements of the following legislation:
   • Accident Compensation Act 2001; and
   • Employment Relations Act 2000; and
   • Equal Pay Act 1972; and
   • Health and Safety at Work Act 2015; and
   • Holidays Act 2003; and
   • Minimum Wage Act 1983; and
   • Parental Leave and Employment Protection Act 1987; and
   • Wages Protection Act 1983.
3. Employers are considered to not have a history of compliance with employment law if they, or anyone associated with the employer who is in a position to influence the recruitment, employment or supervision of non-New Zealand citizen workers of that employer, are included on a list of non-compliant employers maintained by the Ministry of Business, Innovation and Employment (MBIE). The rules for inclusion on the list are set out in Appendix 10.
4. Where an employer has an investigation or case pending with the Labour Inspectorate, the Employment Relations Authority, or the New Zealand courts, an immigration officer should request further information to determine whether an employer is complying with the requirements of employment law.
5. New employers may be considered to have a history of compliance if:
   1. they do not appear on the list of non-compliant employers maintained by the Labour Inspectorate; and
   2. they can demonstrate they have sound human resources policies and practices; and
   3. there is no other information that indicates non-compliance, for example when a person who is on the stand-down list is able to influence employment agreements, practices and policies.
6. Unless otherwise specified, a visa application or employer request will be declined if:
   1. it is supported by, or includes a job offer based on employment with, an employer who is included on a list of non-compliant employers; or
   2. an immigration officer is otherwise not satisfied the employer meets the requirements of W2.10.15 (a-e) above.

Note: Breaches of employment standards which lead to inclusion on a list of non-compliant employers may still be considered when determining if an employer has a history of compliance with employment law, as required elsewhere in immigration instructions, even if the employer is no longer on the list.

W2.10.20 Compliance with immigration law

1. All employers wishing to employ non-New Zealand citizen or residence class visa holders have a duty to only employ people who are entitled to work in New Zealand. This duty includes employing people only in accordance with the employment-related conditions of their visas, if such conditions are imposed (such as a specific employer, a specific position, or remuneration above the threshold required for the holder’s Essential Skills skill-band).
2. Employers are considered to not have a history of compliance with immigration law if they, or anyone associated with the employer who is in a position to influence the recruitment, employment or supervision of non-New Zealand citizen workers of that employer, are included on a list of non-compliant employers maintained by MBIE. The rules for inclusion on the list are set out in Appendix 18.
3. Where an employer has an investigation or case pending with MBIE or the New Zealand courts, an immigration officer may request further information to determine whether an employer is complying with the requirements of immigration law.
   1. New employers may be considered to have a history of compliance if they, or a person associated with the employer who is in a position to influence the recruitment, employment or supervision of non-New Zealand citizen workers of that employer, do not appear on the list of non-compliant employers maintained by MBIE; and
   2. there is no other information that indicates non-compliance.
4. An employer may be considered to have a history of non-compliance if they, or anyone associated with the employer who is in a position to influence the recruitment, employment or supervision of non-New Zealand citizen workers of that employer, have been convicted of an Immigration Act offence that has not resulted in inclusion on a list of non-compliant employers maintained by MBIE (see Appendix 18).
5. A visa application will be declined if:
   1. it is supported by, or includes a job offer based on employment with, an employer who is included on a list of non-compliant employers; or
   2. an immigration officer is otherwise not satisfied the employer meets the requirements of W2.10.20 (a) – (c) above.

Note:
- Immigration offences which lead to inclusion on a list of non-compliant employers may still be considered when determining an employer’s compliance with immigration law, as required elsewhere in immigration instructions, even if the employer is no longer on the list.

W2.10.25 Compliance with the Crimes Act

An employer (including any person associated with the employer who is able to influence the recruitment, employment or supervision of workers of that employer) who supports a visa application, or provides an offer of employment in support of an application, must not have been convicted at any time of an offence under the following sections of the Crimes Act 1961:

1. Section 98 (Dealing in slaves)
2. Section 98C (Smuggling migrants)
3. Section 98D (Trafficking in persons).

Effective 11/04/2024