It’s Time To Fix The Broken Skilled Migrant Category

November 30, 2018
Iain MacLeod

I have on a number of occasions down the years tried to impress upon the senior policy managers inside INZ and the politicians (when they will talk with us) how disconnected the (three) visa process is for skilled migrants from labour market reality and what New Zealand employers want. And how that hinders in achieving the aims of the skilled migrant residence programme.

I am of course referring in part to the much written about ‘chicken and egg’ reality whereby most employers want migrants to have work visas or resident visas before they will be offered a job but the migrant can’t get either without the job offer first.

I explain at very packed seminar that according to INZ’s own statistics over 90% of all skilled migrants are issued work visas while they are in New Zealand reflecting the reality employers demand job candidates are in the country.

The need to be in NZ means they need visitor visas either before they travel and/or at the border.

It looks a bit like this in terms of process – a visitor visa to travel to the country to find work (as a tourist), a work visa once they have secured skilled employment (which is subject usually to a local labour market test) and then a resident visa some months later (which is not subject to any labour market test).

The reality is these three different Visa classes do not “speak” to one another. By that I mean they all exist for completely different reasons in isolation from another and are unrelated in individual objective to one another. They all exist for their own end and there is no visa ‘end game’ programmed into the process when applicants apply for visitor or work visas but the ultimate goal is a resident visa.

The visitor Visa is in effect a tourist Visa. If clients advise that the purpose of the visit is to find work because they wish to be part of the skilled migrant program they are usually (and correctly) declined. If they lie and say that coming on holiday then they risk being accused by the Immigration Department later in the process (at work Visa and residency Visa stage) of misleading an immigration officer. Classic case of you are dammed if you do and you are dammed if you don’t.

Today we were advised by one senior manager at INZ that if they come and do not find work within the validity of the visitor visa they are given at the border and find work they cannot ‘expect’ any further visitor visa and by yet another manager that this policy is ‘under review by senior managers’. That I can tell you is being denied at the highest levels. At the time of going to ‘print’ I am waiting on that (very) senior manager to urgently clarify if he is simply stating what we already know and that is that no one is entitled to any visa ‘extension’ at any time or he is saying that there is now an evolving yet unofficial policy that if you come, cannot find work on your initial visa you won’t be allowed to stay longer and look.

On the assumption the “tourist” is allowed to cross the border and enter new Zealand, it is quite lawful for them to look for work so long as they have not “misled” the department as to the purpose of their visit.

If they find work, most of the time the work visa is then labour market tested i.e. if you are taking away a job from a Kiwi you’re not going to get the work visa. Bizarrely, that labour market test does not apply to the later resident visa application. So…if we think you’re taking a job away from us we won’t grant you a work visa but we will reward you with permanent residence if the employer will keep the job offer open for a few months and the Department has the time to process your residence. Something no applicant should rely on.

It is almost as if the policy makers have intentionally designed a process so disconnected from reality that it is designed to make people fail but I know that is not the case. There is simply a whole raft of unintended consequences and no one has been willing to do anything about it. I find it frustrating because the solution is pretty simple and I have been thinking about those solutions for a number of years.

If I was running the show I would apply exactly the same tests as we do to skilled migrants today but I would change the order of those tests and the visas – and eliminate the need for visitor visas for skilled migrants.

How? I would welcome any person who believed they were able to claim and prove enough points to meet the current pass mark of 160 but for the fact they don’t have a skilled relevant job offer.

I would allow those people to file an expression of interest, be selected, carry out a credibility check on the claim (it is meant to be done today but largely isn’t) and if it all looked credible I would invite them to apply for a resident visa. They would then file a fully and correctly documented application including police clearances and medicals for the family.

I would then carry out thorough verification checks and subject to all boxes being ticked in terms of satisfying instructions (the rules) I would then grant that person at Job Search Work Visa which would be valid for six months. That would mean they must get to New Zealand within that time and start the job search (or now that they have full work rights) find a job before coming to New Zealand and quickly finalise the residency. Just as we do today there would be very strict conditions including the person must take up the job, provide evidence three months after they started that they have been doing that job and being paid the money their employment contract said they would..

If they travel to New Zealand within six months I would give them 15 weeks to find a relevant and skilled job, sort work and submit all the relevant evidence to INZ (like today) and then they and their family would be granted their residence. Right now I believe one of the objections to this is the fear that people may enter New Zealand, not get a job and never leave.

The reality is the way we do things now the same possibility exists. Under my proposed scheme that is far less likely to happen because a person would already have gone through the same intense verification and vetting process that currently happens only when they are in New Zealand. Under my policy this would happen before the applicant entered NZ so if there is a problem you simply don’t let them in. This proposal actually lessens the risk to the integrity of the border.

There is no downside to this and a whole of upside.

It would mean employers would get applicants for roles who already had work rights and have demonstrated that they are committed to moving to New Zealand and went to the time, trouble and expense of filing a fully documented residency application.

Furthermore, if the migrant wants to travel to New Zealand and could not find work within 15 weeks I would argue they played the game and lost and they were clearly either not committed or they were not employable in the local labour market. They would not be allowed to do ‘any’ job while on that for visa, just as now, they’d have to find skilled employment that is ‘relevant’ to their qualifications or work history for which they were granted ‘points’.

Again, no different from today.

Right now we are forcing applicants to not be completely truthful about the purpose of their visit because if they tell the truth they are not ‘bone fide’ tourists. Although INZ has come to accept the ‘Look, See, Decide’ purpose, this is a convenience and not policy. Like all conveniences what might be acceptable today might not be tomorrow and it dos put immigration officers in a difficult position.

What of the many hundreds of skilled job seekers that come over every year to find work who resign jobs and then don’t get jobs-who benefits from that? NZ doesn’t. I hasten to add our clients almost always get work but that is because we are good a picking those ‘winners’ that employers want and you can count on one hand the numbers of our clients that don’t find work and go on to secure residence. Our clients however are I suspect the exception and not the rule.

This proposed policy adjustment then is not to the advantage of my clients, all of whom have a greater understanding of how the labour market works before they leave home (because we make sure they do) and therefore are able to successfully negotiate it.

I do have real sympathy for those who don’t understand how local employers think and are seduced by skill shortages lists, media articles, Immigration Department websites and their marketing (propaganda) and it must be said unscrupulous immigration agents and lawyers.

Right now New Zealand is in something of a crisis in regards to skill shortages and ignoring the problem is affecting the ability of many companies to grow and compete in local and international markets.

The current system is crazy and puts a lot of pressure on Immigration Department and creates an additional layer of complexity that doesn’t need to exist with regards visitor visas and extensions of them. It is crazy that for work visa applicants one officer is applying a labour market test to a work visa application when another officer at the desk beside them is not applying any labour market test on the same job because they are concurrently processing a resident visa application.

The department is not famous for applying common sense nor pragmatism, but then the rules often don’t allow them to. Luckily for us we have relationships with most senior managers who will from time to time exercise discretion and common sense. It can still be a battle getting anything ‘out of the box’ even from them however, but pity the poor applicant that does not have this access.

To be fair on immigration officers, the rules are written in such a way as the officer processing the visitor visa, for example, cannot consider the endgame (residence) and the officer processing the work visa is similarly constrained. They have their mandate to assess against the limited set of criteria which creates this myopic and dysfunctional system.

I’m not talking about increasing skilled migrant numbers. I am talking about meeting the government’s current target of 27,000 including their partners and children which really means migrants only filling around 10,000 jobs a year. Given New Zealand has been creating numbers of jobs in that order each month for some time we are in affect trying to fill one in 12 (8.5%) of the jobs being created through migration so no one can suggest we are being ‘flooded’. The government would still have absolute control over temporary and resident visa numbers.

Given right now government does not penalise resident visa seekers for filling jobs that in theory might be able to be filled by New Zealand residents it’s hard to argue any political downside either.

None of this would stop a person who had a job offer sitting overseas applying for a work visa and coming to New Zealand and filing residence once here. Status quo.

Unfortunately the skilled migrant category was reviewed last year as it is every three years and the current government shows little or no appetite for improvements to what is in my view a system not quite falling apart, but is certainly not firing on all fronts to serve an economy with 3.9% unemployment.

We could have the best of all worlds – protecting the borders, managing the border risks, providing harried employers who have no interest in not employing locally gain access to highly skilled and committed skilled migrants with work rights and who have all but completed the residence process. It would not only give greater certainty and assurance to employers and the skilled migrants that we so desperately need, but it reduces the workload on the Department and even more importantly allows them to better control the risks around those entering the labour market than they can today.

It’s such a good idea it’ll never happen.

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