W2.10 Generic work visa instructions (01/04/2017)
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:
- meet the requirements under Generic Temporary Entry instructions for:
- lodging an application for temporary entry as set out at E4; and
- bona fide applicants as set out at E5; and
- health and character as set out at A4 and A5; and
- produce evidence to show that:
- they are suitably qualified by training and experience to do the job they have been offered; and
- they can meet any of the necessary New Zealand registration requirements (see SM19.5 for the list of occupations requiring registration); or
- 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
~ 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.
- 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
- All employers 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:
- paying employees no less than the appropriate statutory minimum wage or other contracted industry standard; and
- meeting holiday and special leave requirements or other minimum statutory criteria, e.g. health and safety obligations; and
- only employing people who have authority to work in New Zealand (see W2.10.6 below); and
- meeting the requirements of W2.10.15.
- Evidence or confirmation of past and future compliance with employment and immigration law may include but is not limited to:
- employment agreements with workers which demonstrate compliance; and
- a recognised history with the Ministry of Business, Innovation and Employment of past compliance.
- Immigration officers may also request other evidence or confirmation of the employer's past and future compliance with employment and immigration law.
- 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.
- 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 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 Labour Inspectorate (see W2.10.15 and Appendix 10).
~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 WK2.10)) 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.
W2.10.6 Duty of employers to only employ people who have authority to work in New Zealand
See also Immigration Act 2009 ss 350, 351
- 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 or a specific position).
- Employers are liable for prosecution under section 350 of the Immigration Act 2009 if they:
- allow or continue to allow any person to work in that employer’s service, knowing that the person is not entitled under the Immigration Act 2009 to do that work (see also D7.40); or
- allow a person who is not entitled under the Immigration Act 2009 to work in the employer’s service to do that work.
- It is not a defence to b(ii) above that the employer did not know that the person was not entitled to do that work, except where the employer has taken reasonable precautions and exercised due diligence to ascertain a person’s entitlement to do the work.
- An employer is treated as knowing that an employee is not entitled under the Immigration Act 2009 to do any particular work if, at any time in the preceding 12 months (whether before or after the commencement of section 350 of the Immigration Act 2009), the employer has been informed of that fact in writing by an immigration officer.
- Employers may ascertain an employee or potential employee’s entitlement to work for them by:
- sighting suitable documentation proving that person’s entitlement to work in New Zealand; or
- utilising the online VisaView system (www.immigration.govt.nz/VisaView); or
- contacting the INZ Contact Centre; or
- any combination of the above.
- Suitable documentation for (e)(i) above includes, but is not limited to:
- for non-New Zealand citizens:
- a passport with a valid work visa;
- a passport with a valid temporary-entry class visa (other than a work visa) with a variation of conditions to work;
- a passport with a valid residence class visa;
- an Australian passport;
- an eVisa allowing work (and evidence of the visa-holder’s identity);
- for New Zealand citizens:
- a New Zealand passport;
- a New Zealand birth certificate confirming New Zealand citizenship, and photo identification;
- a New Zealand citizenship certificate and photo identification.
- a non-New Zealand passport with an INZ endorsement confirming New Zealand citizenship
- Where an employer takes reasonable precautions and exercises due diligence to ascertain an employee’s entitlement to do that work, they should keep a record of the steps they took and evidence of the employee’s entitlement to work for them.
- If an employee’s entitlement to work is for a limited period, an employer is liable under (b) if the employment continues after the employee is no longer entitled to work.
~ Suitable documentation may also include evidence of a permit allowing work, issued under the Immigration Act 1987.
~ The defence available under s 39(1B) of the Immigration Act 1987 of holding a tax code declaration (IRD form IR330) signed by a person before or when employment began, stating that this person is entitled to undertake employment in the employer’s service, is no longer valid.
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:
- name, address, telephone and/or fax number of the employer; and
- name and address of the person to whom the job is offered; and
- a full job description including:
- the job title or designation; and
- the address of the place of employment if different from that in paragraph (a) above; and
- the type of work, duties and responsibilities involved; and
- details of pay and conditions of employment; and
- any qualifications, experience or training required; and
- the duration of the job; and
- how long the job offer is open.
- 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.
Note: INZ will decline an application for a work visa where it considers that the employment was offered as a result of payment made 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
- An 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.
- 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.
- Employers are considered to not have a history of compliance with employment law if they are included on a list of non-compliant employers maintained by the Labour Inspectorate. The rules for inclusion on the list are set out in Appendix 10.
- If there is other information that indicates an employer does not have a history of compliance with employment law, an immigration officer should request further information to determine whether the employer meets the minimum employment standards. Such information may include, but is not limited to, instances where an employer has an investigation or case pending with the Labour Inspectorate, the Employment Relations Authority, or the New Zealand courts.
- New employers may be considered to have a history of compliance if:
- they do not appear on the list of non-compliant employers maintained by the Labour Inspectorate; and
- they can demonstrate they have sound human resources policies and practices; and
- 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.
- Unless otherwise specified, a visa application or employer request will be declined if:
- 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
- an immigration officer is otherwise not satisfied the employer meets the requirements of W2.10.15 (a-e) above.
- 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.