E3.26 Varying the conditions of temporary entry class visas (08/05/2017)

See also Immigration Act 2009 s 52

1. Holders of temporary entry class visas should apply for a variation of the conditions of their visa if:
   1. they wish to work and do not have a visa that allows work in New Zealand; or
   2. they hold a work or visitor visa and wish to undertake a programme of study in New Zealand for longer than 3 months (unless U2.5 applies); or
   3. they hold a work visa limited by conditions and wish to change employers, and/or occupation and/or the place of employment.
2. Immigration officers may grant a variation of conditions in such cases provided that the applicant completes an Application for Variation of Conditions and produces:
   1. the appropriate fee;
   2. a valid passport (or a certified copy) or travel document (or a certified copy);
   3. documents which support the requested variation, such as:
      • an offer of employment (see W2.10.10); or
      • an offer of place at a suitable education provider (see U3.5), and evidence of tuition fee payment or exemption (see U3.10); and
   4. any other documents or information requested by the immigration officer.
3. A variation of conditions will only be granted where the varied conditions still meet the objectives of the instructions which the visa was granted under.

E3.26.1 Varying the conditions of work visas

1. In order to meet the objective of Essential Skills instructions, particularly WK1.1(c), Essential Skills visa holders seeking to change occupation or place of employment will not be granted a variation of conditions and must instead apply for a new work visa, unless their occupation is listed on the Essential Skills in Demand Lists and the applicant meets the requirements of the list.
2. Holders of a work visa granted under WS2 as players or professional sports coaches may apply for a variation of conditions of their work visa to undertake additional employment. A variation of conditions may be granted if:
   1. the terms of the existing employment have been met, and will continue to be met; and either
   2. the secondary employment is offered by the sports club or a company involved in the sport and the position is offered solely to this particular player or coach; or
   3. the secondary employment is offered by an employer other than the sports club or a company involved in the sport and an immigration officer is satisfied that there are no New Zealand citizens or residence class visa holders available to be employed in the position (see WK2.5).
3. Holders of a work visa granted under WR1 (Talent Accredited Employers) Work Instructions) may apply for a variation of conditions of their work visa to change employers. A variation of conditions may be granted:
   1. to undertake employment for another accredited employer; or
   2. to undertake employment for another employer who is not an accredited employer if their employment is no longer available due to reasons beyond the visa holder’s control. When assessing such applications for a variation of conditions, immigration officers will consider all the circumstances of the applicant and the reasons for which the former accredited employer did not continue employment or the former employer’s accreditation was not renewed or rescinded.
4. In order to be granted a variation of conditions under (c) above:
   1. the base salary offered must be no less than the base salary that was required at the time the initial work visa application was made; and
   2. the offer of employment must meet the requirements of WR1.10; and
   3. employers must meet the requirements under W2.10.6 and W2.10.10.

      Note:
      ~ Where a person fails to continue employment in the circumstances described in (c) and (d) above, they will not be eligible for residence under the Residence Instructions for holders of work visas granted under the Talent (Accredited Employers) Work Instructions.
      ~ For the avoidance of doubt, the base salary in (d) above excludes employment-related allowances (for example overtime, tool or uniform allowances, medical insurance, accommodation). The base salary is calculated on the basis of 40 hours work per week.

E3.26.5 Varying the conditions of visitor visas

1. Holders of visitor visas granted under V3.100 Guardians accompanying students to New Zealand may only be granted a variation of conditions for part time work or part time study between the hours 9:30am and 2:30pm Monday to Friday (inclusive) (see V3.100.35).
2. Holders of visitor visas may be granted a variation of conditions for a duration of six weeks to undertake seasonal work (planting, maintaining, harvesting and packing crops) in any region where the Ministry of Social Development has identified a shortage of seasonal labour and for any employer in the horticulture or viticulture industries, provided the applicant has not been granted a variation of conditions for this purpose since their most recent entry to New Zealand.

E3.26.10 Varying the conditions of student visas

1. Holders of student visas may be granted a variation of conditions to allow them to work in line with the requirements at U13.

E3.26.15 Compliance with employment standards

All applications for a variation of conditions to work for a specific employer must be for an employer that has a history of compliance with employment law as set out at W2.10.15, and is not currently included on a list of non-compliant employers maintained by the Labour Inspectorate (see Appendix 10).

Effective 08/05/2017