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Posted by Iain on Sept. 17, 2019, 3:11 p.m. in Immigration New Zealand
Right about now keyboard warriors across Facebook, Twitter, migrant chat group and forums will be lighting up with the news that the Government is making a significant change to accredited employer/talent visa policy on or about 7 October. Teeth will be gnashing. Uninformed opinions will be flying. No doubt the ‘media headlines will scream ‘Government making it tougher for migrant workers to secure work visas’ (Government loves those sorts of headlines even when it isn’t true).
Government isn’t doing that. They are simply bringing Talent Visa workers income into better alignment with the changes they made to Essential Skills Work Visas (the bog-standard work visas most people hold on their way to a resident visa). This is long overdue. I suspect there is some truth to this change also pushing most short term skilled workers back into the Essential Skills Work Visa stream.
Note the ‘on or about October 7’. From that date applicants seeking Talent Visas under the Work to Residence pathway with an accredited employer will be required to earn $79,560 (gross). It is currently $55,000.
None of this is news – or shouldn’t be. This has been in the offing for many months. I wrote almost a year ago this increase was coming. It was the quantum that has surprised on the ‘upside’. In the guessing game that can be immigration policy changes my pick was high $60,000s or low $70,000s.
None of this should be confused with the ongoing work (currently under ‘design’) being done whereby all employers to become ‘accredited’ before they can support Essential Skills Work Visa applications.
This new policy was meant to be rolled out around now but I suspect the powers that be have realised a good idea and one that can be operationalized are two different things. Under the proposed new (in 2021) work visa rules there will be three steps for an applicant seeking a temporary work visa in NZ:
1. Employer becoming accredited (or whatever they choose to call it)
2. Employer proving a genuine attempt to recruit locally (same as now)
3. The applicant proving they are qualified by experience and training to do the job (same as now)
The short lead-in time to the new salary threshold for accredited employers will be to stop the predictable rush of applications.
Posted by Iain on Aug. 16, 2019, 12:54 p.m. in Immigration New Zealand
In this age of mass communication, social media and the manipulation of the masses by the few, it can sometimes be hard to separate the sinister from the stupid. Take Donald Trump for example.
Closer to home, I’m constantly asking myself whether the New Zealand Immigration department is full of poorly led fools or there is an insidious culture of racism that their 'leadership' will never publicly acknowledge exists.
Take the relatively simple matter of a visitor visa. Every year hundreds of thousands of people visit New Zealand and many of them need visitor visas to do so. The significant majority are simply coming to New Zealand for a holiday and many are granted visas. Equally, many are not. I am not sure anyone has ever done any real analysis of the nationality or ethnicity of those that are successful and those that are not.
A smaller number, many of them our clients, are coming to New Zealand to find work because they want to be part of the government's residence program and we have identified that with skilled employment they meet the criteria for residence. As I have written about so many times before, overwhelmingly New Zealand employers demand that potential migrants send very clear signals of their commitment to the process and that means being in New Zealand in order to secure interviews.
Around 97% of all IMMagine’s clients get jobs when they are in New Zealand and the signifcant majority are issued their work visas while in NZ.
Immigration New Zealand’s own statistics show that only 6% of skilled Work Visas are granted to people not in New Zealand. That supports the proposition that if you want a job you need to be in New Zealand first and employers are reluctant to engage with those sitting overseas.
The reality is those coming to New Zealand to test themselves against the labour market when not 100% on holiday does create issues for immigration officials because such people are not catered for in the rulebook - looking for work on a visitor visa is perfectly legal but not one of the stated ‘purposes’ of being a ‘tourist’. Rather than change the rule book to streamline the residence process and recognise the benefit of allowing the highly skilld to travel as visitors to find work, we end up with what seems to me to be little short of racial profiling.
I know the government will vehemently deny it as they always do, however, when our experience as Advisers screams racial profiling and the evidence is as plain as the nose on your face, all the denials in the world can't hide the reality.
To try and reach an understanding on who might be allowed to visit in part to find work in order to be part of the residence programme, we came to an arrangement some time ago with a very senior immigration manager who said that someone meeting only one of the criteria below could ‘reasonably expect’ to be granted a Visitor Visa when they were primarily coming to New Zealand on holiday but with a secondary purpose of finding work:
- Their immediate family was remaining behind (implying they couldn’t be single); or
- They had a job to return to if they didn’t find work in NZ; or
- They had not sold the family home.
Either the officers in branches like Beijing never got the memo or they wilfully ignore the directives of their senior managers (and given there is a culture of not wanting to tell subordinates what to do in this circus, I don’t rule out the latter).
Right now somewhere in New Zealand is a single, 23-year-old South African with limited work experience, who has never owned property, who resigned his job and for whom we got a visitor visa to come to New Zealand because he wants to be part of the Residence program. We warned him when we applied that INZ should try and decline him based on the understanding of who should and who should not expect to get the visa. They approved him. Although he had not secured employment within the validity of his initial Visitor Visa, the Immigration Department was very relaxed about granting him a renewal for another three months. None of the three criteria above were satisfied.
Another current client is also from and lives in South Africa. He is not a South African citizen but holds a valid work visa and has lived there for a number of years. He is married with children and they were not included in the visitor visa application but we presented evidence of this as strong 'incentives to return' to SA if he was unsuccessful finding work in NZ. He is a highly skilled Electrician, is trade certified, speaks fluent English and has registration with the New Zealand Electrical Workers Registration Board. On top the fact that he works in an occupation that appears on the Long term Skills Shortage List should see him find work within days of stepping off the plane. He has a job to return in South Africa in the unlikely event he cannot find one in New Zealand.
He satisfies two of the three criteria above.
His visitor visa was declined yesterday.
One of these clients is white and one of these clients is not. Can you guess which is which?
The Immigration Department will suggest that is coincidence.
That can only mean one of two things - they are utterly incapable of consistently applying their own rules and the visa process is more than a little random…or something more sinister…and racial profiling or at least bias is at play.
They can deny the system is racist all they like and while different applicants do have different risk assessments attached to them, when a person satisfies criteria laid down by a senior manager to mitigate against that risk, and the state functionaries don’t follow those criteria, what other conclusion can be reached?
Is it a culture of racism or is it simply (subconscious?) bias on the part of immigration officers?
When the only thing that seems to separate so many decisions is the colour of someone’s skin it is very hard to conclude that there isn't a racist subculture within the immigration department. It's impossible to conclude otherwise when white people who don't meet the criteria are approved for a Visa and non-white people who do, are not.
I take no comfort in writing about this, because it calls into question the way New Zealanders perceive themselves as being welcoming, tolerant and by and large, not racist. I think for the most part that is true but there's something about the culture of the immigration department, their training or simply their perception of ‘risk’ that leads them to treat similar applicants in different ways based on nothing more than nationality or race.
And someone needs to call them out on it.
Until next week...
Posted by Iain on Aug. 9, 2019, 3:08 p.m. in Immigration New Zealand
I am sometimes asked why we are more expensive than most immigration advisers. I respond, sounding immodest I know, because we employ the best, smartest immigration consultants and we deliver. You’d expect me to say that, right? Well, if that sounds like a self serving sales pitch, read on.
I wrote a blog last year about a case which demonstrates all that is wrong at the Immigration Department and why the smart wannabe migrant employs a very good immigration adviser to represent them. When living in NZ for the rest of your life is the goal, and raising your family somewhere safe and civilised, enjoying everything this country has to offer in an increasingly barmy world, is investing a few thousand more dollars too much of a price to pay?
The story I started to tell last year has just reached its climax and the ’four horsemen of the visa apocalypse’ have been slain. I am happy, yet mentally exhausted to report, a positive outcome for the client who this week received their resident visas.
To briefly recap, the clients had four things going against them when we first consulted with them in 2017:
1. They were Indian nationals (and yes, in my opinion, INZ does discriminate against Indian nationals); and
2. The main applicant was a former international student (and the Government was, and remains, committed to ridding NZ of as many of them as they can and denying them the pathway to residence promised to them when they signed up to study in NZ at great cost); and
3. The main applicant, post her NZ Master programme, was working as a ‘Retail Manager’ (for which INZ had issued her a work visa - take note of that); and
4. The employer was a fast food business - in this case a Subway franchise.
I explained to the clients that any one of these four factors meant INZ would do everything in their power to decline their skilled migrant resident visa despite the case meeting all the rules to the letter. I went to great lengths knowing what lay ahead to ensure we had our facts straight and the evidence tight especially in relation to the nature of the role the client was filling at Subway.
I needed to be satisfied she was indeed the Manager of this business (there were two outlets she was running) and made most of the decisions in their operation, as managers might be doing. I had no doubt she was a Manager in every sense of the word. Her job was skilled despite it being with a fast food business.
INZ didn’t disappoint me and it declined the first application on the flawed grounds that the applicant was working ‘more’ as a ‘Supervisor’ than a ‘Manager’. Supervisor is not skilled under policy for this type of business. Their assessment of her role was wrong, or rather they ignored the facts, but I could not get the senior managers to take another look. No one would listen and stop the clear injustice they were perpetrating. The senior managers supported the officers who lined up against the client.
This decision to decline the case was made despite client holding a valid work visa to be employed as a ‘Manager’ at the business. It is important to note that the same definitions as to what is a ‘skilled’ job apply for both work and resident visas. That then begs the question, how can you be acknowledged by INZ to be a Manager at work visa stage but not at residence when the job itself has not changed? In INZ’s world anything goes, especially when they want to decline a visa.
The obvious contradiction was either lost on INZ or they conveniently ignored it (in this case I am sure the latter). INZ demonstrated their stupidity (or vindictiveness) by suggesting that the job they had granted a work visa to because it was skilled, all of a sudden was not skilled for residence and therefore, no points could be awarded for it and the client failed to reach the 160 points required for residence. Everything I predicted INZ would do, they did. Case declined.
I had always expected that we would likely have to rely on the independent Immigration and Protection Tribunal (Appeal Authority) to pull INZ back into line.
I had no doubt we would win under appeal but we were thrown an interesting policy change lifeline which changed the strategy.
Around the time INZ declined the case, the Government introduced a new (stupid) rule that in essence says a job, even if unskilled when applying INZ task definitions, becomes skilled if the applicant earns $36.44 an hour.
Hmmm, I thought, INZ has already concluded this job is a supervisory one and not a manager and therefore is not skilled. If the employer now offers a (substantial) pay rise to the client to that magic new hourly rate, then the job becomes skilled and she must be awarded the 50 points for it. INZ could never say no.
I explained all of this to the clients and the employer who given INZ’s efforts to deny them residence once, were understandably sceptical. Trust me I said, I am right. The ‘effective hourly rate’ definition is not open to interpretation - if your job is unskilled by its tasks but you earn that particular hourly rate or higher, it is skilled and the points must be granted all other things being equal. Given the client had been working in the role for almost three years, INZ had verified her role with a forensic zeal I wish they’d apply to learning their own rules, I convinced the client that there’s simply no way INZ could argue that it was not ‘skilled’. They needed to have faith.
How wrong I was.
INZ settled on a line of thinking that was staggering. They argued the fact that because the employer had granted a significant pay rise to the applicant, that somehow made the job ‘not genuine’ and, scarcely believably, in doing so, the employer’s action represented ‘a threat to the integrity of the immigration system’. They never explained what the threat was however beyond the decision would lead to a resident visa potentially.
INZ wrote possibly the dumbest, most poorly argued ‘letter of concern’ I have seen in 30 years and that is saying something. Here was INZ, apparently with a straight face, arguing that if a client gets a pay rise to do a job INZ has said is not skilled, it cannot now be skilled because they were given the pay rise! That pay rise somehow represents a threat to a system that apparently has some ‘integrity’ and the job cannot not ‘genuine’.
Think about that for a minute.
Does that mean no migrant can ever get a pay rise if it takes them over a certain income threshold that opens the door to residence? INZ wants NZ employers to suppress migrant incomes? This, at a time the current Government is going to change immigration rules because migrants are, allegedly, being 'exploited' and being under paid and over worked?
I begged senior branch managers to get involved as I couldn’t make the case officer, or her immediate line managers, understand the utter stupidity and contradictions of their own argument. INZ was so hell bent on declining this case and defending an officer seriously out of her depth, they refused to help her see what to an 8 year old would be obvious. Unfortunately, in their usual ‘hands off’ fashion, these senior managers supported the officer and her immediate line superiors.
My rebuttal was 26 pages long and took over 30 hours to draft, refine and finally fire off to the department - I wont bore you with the detail of the arguments but focussed on the obvious - in what credible way could the applicant getting a pay rise represent a ‘threat to the integrity of the immigration system’ when the 'dollars per hour' definition is INZ's rule and the client simply met it? How could the job not be genuine when she has been working in that role for over two years?
Further, given INZ had granted this person a Work Visa to work as a ‘Retail Manager’ for this business, how could she not now be a Retail Manager at resident visa stage? And if she wasn’t now in their minds a Retail Manager that means the work visa she was on was invalid and the client had been working unlawfully for almost three years. No one at INZ commented on that obvious contradiction or the potentially parlous position it placed the client or her employer in. I suspect they were willing to turn a blind eye to this contradiction because it suited their twisted narrative.
I argued, if the Department could not understand (or were not interested in understanding) their own contradictory decisions through the life cycle of this client’s visa journey, I was happy to have her stay on her work visa as a ‘Manager’ because that was simply supplying me more legal ammunition if we had to take this to appeal. INZ had been warned.
Furthermore, if any logic ever applies to these people or this process, if someone has been working in a role for nearly three years it must be ‘genuine’ because it is real and that is what the word ‘genuine’ means. If an employer gives someone a pay rise (yes, it might be simply to ‘make’ an otherwise unskilled job ‘skilled’ and worth 50 points) that doesn’t represent any threat to anything, it represents an employer making a rational decision to secure and retain a migrant’s skills.
After years of being told that migrants continue to be exploited by not being paid enough, INZ was now trying to decline someone for being paid too much!
I have never been more frustrated in 30 years at the lengths that INZ went to in this case to decline these deserving migrants, not once, but twice.
However they played right into my hands by deciding in the first resident visa that the client was ‘more a supervisor’ than a ‘Manager’. They made that bed and I forced them to sleep in it.
I have now lost all faith that senior managers pay anything other than lip service to ‘putting the customer at the centre of everything we do’ (that isn’t a joke, it’s INZ’s ‘vision statement’). They abrogated their responsibilities to lead and left the decision making to an inexperienced officer with little knowledge of the rules she was required to apply and even worse English language abilities. They threw her right under a legal bus and should hang their heads in shame.
They put the customer through hell for 24 months with all their plans on hold (including the husband launching his own business start up which he is now doing).
The system is morally bankrupt, the Department employs people out of their depth, it has ineffective and weak 'leadership' and in any normal business heads would be rolling about now. But let's not kid ourselves, INZ is not a business - it is an all powerful state run monopoly that can act as it pleases and unless you have powerful advocates at your back, you are at their mercy.
The case took almost two years of fighting and hard graft but in the end the client got what they should have got over 12 months ago - a resident visa that they qualified for the minute one of them had the job offer with Subway.
It is clear to me and many others INZ has a thing against Indian applicants, former international students of all persuasions but in particular those from India, Retail Managers and fast food businesses.
I warned the clients from the start that they represented the four horsemen of the visa apocalypse to INZ but I was confident they could be slain. Even in my wildest nightmares I had no idea the lengths INZ would go to, to force these people out of the country that invited them to study here with the promise of a pathway to residence to follow.
And this, dear reader, is why you often pay us more than others. I have no doubt most immigration advisers could never have formulated the argument, connected the dots, used INZ’s dumb arguments against it, nor had the clout to ensure that INZ was always going to pay very close attention because the arguments came from IMMagine.
Until next week
Posted by Iain on July 19, 2019, 2:23 p.m. in Immigration New Zealand
Immigration ‘cuts’ are back in the news this week and as usual the migrant world is in full panic mode. This is, to coin the phrase, ‘fake news’. However, drill down a little deeper and a very different, and depending where you come from, darker, picture is playing out.
In October 2016, in an attempt to block the pathway to residency to tens of thousands of international students to whom such a pathway had been promised, the then government increased the skilled migrant points "pass mark" significantly to 160. They did this under the guise of improving ‘quality’, the real reason was having taken billions of dollars off international students, they decided they did not want most to hang around.
I wrote at the time the pass mark increase was the Government’s way of dealing to a problem of its own creation but to which it did not wish to confess. As a consequence, tens of thousands of international students, mainly from India, who had invested tens of thousands of dollars if not hundreds of thousands of dollars studying in New Zealand because the government here promised them a pathway to residence if they did, were effectively being shown the exit door.
We are now seeing the consequences of that but it is affecting different markets in different ways. I know a lot of South Africans have read the headline about ‘numbers being slashed’ and are now under the impression New Zealand is now closing the door. Not true.
If you compare all resident visas granted since 2010, the numbers of Indian, Chinese and South African citizens granted a visa under all categories looks like this (I’ve rounded the numbers off) for the years ending:
2010 2012 2014 2016 2018
India: 2500 3500 4375 6000 3152
China: 4030 3500 4633 5500 4800
South Africa: 1900 1035 1042 1250 1210
Drilling down even further and looking specifically at skilled migrant category applications, it is very much steady as she goes for South Africa, India is trending down rapidly and China is also on its way down.
Looking at INZs own published data, the number of Expressions of Interest (EOI) going into the skilled migrant pool has not changed much in recent times. That suggests demand for the available places is not increasing.
Historically, to meet its quota of 27,000 skilled migrant resident visas issued in any 12 month period with a variance of +/- 10%, 750 EOIs have needed to be selected every fortnight in order to achieve that targeted outcome. Tellingly, that target of 27,000 has not been reached in recent years, there’s always been unfilled places. That is largely because of the high pass mark of 160.
Looking at the most recent skilled migrant pool draws, INZ has been selecting between 600 and 650 a fortnight, significantly down on what is required to meet their own targets.
At the same time there has been an increase in those being granted resident visas who have been employed by an ‘accredited’ employer and I would expect this number to grow over the next 12-24 months as employers respond to high ‘pass marks’ for otherwise skilled migrants for whom no pathway exists for residence. These resident visas are included in the overall historical target of 27,000.
It is true that the current government has modestly reduced the current ‘target’ number of resident visas and they are now operating on an 18 month timeline, down from the traditional 24 month ’residence programme’ period. The current programme ends in December 2019 and new targets will be released in the next couple of months I expect. My money is on more smoke and mirrors when that happens but little effective change.
I suspect the current programme has been reduced from a two year cycle to 18 months because all three parties that have formed the current Government campaigned on reducing immigration levels and have spent much of the last two years trying to work out what exactly they really want in terms of immigration policy settings versus what they sold their voters.
The word we hear is that the junior coalition partner, New Zealand First (‘Mr 7%’ who in effect can veto anything and everything), might have a hand in the never ending delays in the Government announcing new immigration initiatives. For example, Work Visa policy which we were told would be rolled out about now I am currently hearing is not likely to be rolled out until the middle of 2020. I wouldn’t bet much that it will be then either.
There has also been a reduction in real terms of around 5000 skilled migrant places (which represents no more than the plus or minus 10%) over the last programme (I won’t bore you with the maths) but given the Government hasn't come close to filling the 27,000 in recent years, the ‘reduction’ is simply confirming what has already been happening. A case of smoke and mirrors if ever there was one. New Zealand is not officially reducing numbers (unless arguably you are an international student and/or from India). They were already being reduced thanks to the last Government.
Having said all of that we were shocked when 10 days ago a very senior immigration manager advised us that skilled migrant resident visa allocation times would now be seven months. That is up from three months at the beginning of this year. The senior manager suggested that was because increased demand was causing a backlog.
Into the numbers we once again dived to see what was really going on and to see if we could explain it.
Typically, the numbers tell a different story to what the media has reported and what INZ is saying. There is no doubt that the number of skilled migrant resident visa applications that have been filed but not yet processed has increased significantly in recent months but that has nothing to do with demand nor the government significantly cutting the number of places available to those Visa applicants - it is a simple reflection of the inability of INZ to get its act together to the point where they can continue making decisions at the rate they traditionally have.
How did this happen?
Apart from not being able to organise a good knees up in a brewery, I think the real reason explaining the increase in applications sitting idle in the system is because INZ "Managers" decided to condense a three year program of restructuring including bringing skilled migrant resident visa processing onshore and under one roof at the same time as they were moving towards an electronic visa processing system, into 18 months. It has caused chaos. INZ is a shambles at the best of times but I have never seen it more shambolic than it is today.
At the same time the normal churn in immigration officers continues and it is horrifying to think that every year around one third of all immigration officers resign and need to be replaced. As I recently pointed out in a call to a number of senior INZ managers, they are operating in the same labour market that the rest of us are, where anybody with half a brain, the right attitude and good English is actually already working and therefore INZ is having to scrape the bottom of the labour market barrel to replace the scores that leave every year. This is a complicated game where it takes the best of minds several years to be knowledgeable enough to know what you are doing - these officers are let loose after a few short weeks.
Lack of experienced staff and ineffectual leadership it seems to me is the real reason why applications are piling up.
I therefore urge those of you that spend your lives taking advice from those with an opinion, but little real understanding of what is going on in the visa world (my world), who believe all that is written on those online chat groups and migrant forums along with dear old Facebook to treat with great caution whatever you might be reading about New Zealand closing its doors. It is not closing its doors, this Government knows we still need every skilled migrant we can attract as we continue to create thousands of jobs every month and we don't have people to fill them.
They have however got an Immigration Department that is in a state of chaos and that, and that alone, is leading to blow outs in processing times and may well mean a reduction in ‘approvals’. That has nothing to do with an official ‘cut'.
So, rest easy. The door is still well open
Until next week...
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