Green light for green list? Details released on Skilled Residence Pathways

On 11 May 2022 the New Zealand Government announced a new “Green List” that included over 85 hard-to-fill roles.  The intention is to attract and retain highly-skilled migrant workers to fill skill shortages in New Zealand. A streamlined and prioritised pathway to residency was promised to follow, to create an incentive for highly-skilled migrant workers on the Green List to relocate to New Zealand.

Immigration New Zealand (INZ) has now released details on how highly-skilled migrant workers, including those with occupations on the Green List, can apply for residence. There are three new residence pathways, as below:

CategoryEmployment Requirements
(when resident visa application made)
When to Apply
Tier 1 - Green List

(Fast Track: Straight to Residence)
• Current or offer of a job with an accredited employer;
• Job must be on the Tier 1 Green List, and the applicant must meet all the requirements specified on the Green List for the occupation; and
• Employment must be genuine, full-time (at least 30 hours per week), permanent or for a fixed term of at least 12 months. Independent contractor arrangements are also eligible under certain circumstances
On or after 5 September 2022
Tier 2 Green List

(24-Month Work to Residence)
• Current job with an accredited employer;
• Role must be on the Tier 2 Green List (or was when current AEWV issued) and the applicant must meet all the requirements specified on the Green List for the occupation; and
• Employment must be genuine, full-time (at least 30 hours per week), permanent or for a fixed term of at least 12 months
• Must have worked for 24 months in New Zealand in a role (and meet the specified requirements) in Tier 2 of the Green List from or after 29 September 2021; and
• The 24 months of work must be gained during the 30-month period immediately before the date the resident visa application is made
Highly Paid

(24-Month Work to Residence)
• Current job with an accredited employer;
• Remuneration must be at least twice the median wage rate (currently $55.52 per hour or $115,481.60 per annum, based on a 40-hour work week) at beginning of 24-month period and when resident visa application is made; and
• Employment must be genuine, full-time (at least 30 hours per week), permanent or for a fixed term of at least 12 months.
• Must have completed 24 months of work in New Zealand in a highly paid role on or after 29 September 2021; and
• The 24 months of work must be gained during the 30-month period immediately before the date the residence application is made

In each category above, the applicant must also meet the following criteria:

  • Age: must be under 56 years of age when filing the resident visa application;
  • English language ability: equivalent to IELTS overall score of 6.5; and
  • Health and Character: standard health and character requirements for residency must be met.

Main focus areas

The information set out in the table is a very basic summary of the main qualification aspects. In some instances, quite detailed and complex eligibility rules apply. These three resident visa categories are “sub-categories” of the (currently suspended) Skilled Migrant Category and for those familiar with that policy, eligibility can be very tricky in some instances.

Limited application of new policies

Outside these three new policies, there is no pathway to residence for other migrant workers yet as the (main) Skilled Migrant Category remains suspended. We understand INZ may look at reopening this category later this year, but it is uncertain when it will reopen and what the requirements for this category would be. Our view is that it most likely will be reopened, but the ability to qualify will be limited to “mop up” any outliers. The focus for residency eligibility will lie with these new categories moving forward (hence why they were released first).

The Tier 2 and Highly Paid residence pathways replace the previous Talent (Accredited Employer) Residence from Work Category (Talent Visa). While there was no significant English language requirement under the previous Talent Visa, the main applicant must now meet the minimum standard of English (i.e. IELTS overall score of 6.5 -equating to a very high standard of English language ability) to be eligible for residence.

In addition to the above issues which will reduce the number of potentially eligible migrants, the fact that the Tier 2 occupations also have narrowly defined additional requirements, will mean that many prospective migrants will not be able to access these pathways. The Green Lists require that the applicant is in a Green List role and possesses the required skills or qualifications as specified. Typically, this will amount to possessing either New Zealand occupational registration, a qualification from a recognized university or a particular area in their degree course. These requirements are very narrowly defined and so in many cases, there will be skilled and qualified migrants who do not possess the exact qualifications or expertise stipulated in the Green List. In some instances, a comparative assessment from the New Zealand Qualifications Authority may be required to prove eligibility, but sometimes even that won’t work. Applicants who find themselves in that position may still secure a temporary work visa, but won’t be able to access the residence pathways, thus making the idea of emigrating much less attractive. We consider that a significant number of sought-after migrants may fall through the cracks due to this issue.

Change in health approach renders good applicants ineligible

A major departure is the fact that these new pathways are not formally connected to the new AEWV. Previously, when an applicant applied for a work to residence temporary visa, the health and character requirements that applied to the assessment of resident class visa applications were applied.  This included the ability for applicants to secure a medical waiver where there were health complications, so when it came to the later residence application that discretionary element had been removed (i.e. you would not want to work for two years believing you could secure residency to then be declined on a health ground).

That was a “no surprises” policy; you were either in or out at the initial temporary work to resident visa stage. There is now no such medical waiver available at AEWV stage. All applicants wanting to secure an AEWV to be able to apply for a resident visa following 24 months of employment will need to meet the acceptable standard of health at the first temporary gate without being able to request a medical waiver assessment. If you get past that (as it is an easier hurdle), then it is possible for a resident visa application to be declined on health grounds later for someone who has been issued an AEWV. This change is a big one.

In our view, this is very poorly thought through and will have serious consequences for a number of migrants and employers. Excellent applicants that you could secure a waiver for due to their contribution over and above any potential “burden” on the health system won’t be issued visas. Others who are issued visas based on the lower temporary visa health bar will be subject to discretionary decision-making and with that, potentially declined at the resident visa stage two years later.

Note this also applies to the character policy. The bar for entry for previous convictions is fairly low in a temporary visa AEWV context, but much higher in residency context. For example, in a temporary visa context a conviction within the last five years of driving with excess breath/blood alcohol that did not involve imprisonment is fine, but does not meet the character requirements for a resident visa and so a discretionary character waiver is required. The conviction in this example won’t prevent you from starting your potential residency pathway under the AEWV, but 24 months later your resident visa could be declined based on the same conviction, unless a character waiver can be secured at that stage.

Complexity of ANZSCO assessments

Enter ANZSCO assessments (again). For the 90% of roles that do not require professional registration under the Tier 1 and Tier 2 Green List, an immigration officer may undertake a ‘substantial match assessment’ to make sure the job role is consistent with the applicable ANZSCO description on the Green List. Many in the industry will recall the rationale provided by INZ to move away from these assessments due to the complexity, inconsistency and appeals that resulted. It looks like we are not saying goodbye to ANZSCO assessments.

Parental leave and eligibility flexibility

On the positive side, any parental leave taken during the employment can be counted towards the applicable 24-month work requirement. This was always the case, but it is nice to see it formally recognised in the policy as it will provide some assurance to those migrant workers who are planning to have children while they are working towards qualifying for residency under the AEWV work-to-residence pathways.

In addition, the 24-month period of work required for the work-to-residence pathways must be gained in the 30 months immediately preceding the date of filing the residence application. However, this doesn’t need to be gained in consecutive months and can be comprised of different types of AEWV residence pathways. For example, a Registered Nurse can complete 12 months as a Tier 2 AEWV holder, take three months off, then complete the residual 12 months as a Nurse Educator being paid twice the median wage.

Our top tips

For migrants looking to secure residency under any of these pathways or employers looking to provide offers of employment with an expectation of residency for any employee:

  1. Get an eligibility assessment as soon as possible in the process, preferably before a Job Check application is made and before an AEWV application is made. That will allow certainty of eligibility and/or guidance on what is required to secure a residency at the end.
  1. Anyone who has a health condition or a traffic/criminal conviction (excluding minor traffic speeding/parking tickets) who is looking to secure an AEWV with a view to residency, seek a professional opinion from an immigration lawyer experienced in complex health/character related visa matters as early as possible in the migration process, preferably before looking for an offer of employment.
  1. The position title and description are very important and must be consistent with the applicable Green List ANZSCO description when drafted. This will help to avoid lengthy and expensive legal arguments (and appeals) when an ANZSCO assessment does not go well at the resident visa application stage. If an ANZSCO issue is raised by INZ, seek a professional opinion from an immigration lawyer who is experienced in managing ANZSCO-related submissions and appeals as soon as the ANZSCO question is raised by INZ (don’t try and respond without expert guidance – you could end up at an appeal and that’s far more expensive).

Final thoughts

It is great to finally have an open border and see these new polices revealed. As anticipated, there are some fishhooks for the inexperienced, but what we didn’t bargain for was some poorly thought through policy that lacks practical understanding of how migration works.

We find it hard to understand the rationale of not linking the AEWV to the work-to-residence pathways in a health and character sense. Most AEWV applicants are looking for a certain pathway to residence before they bother selling up and moving a family from one side of the world to the other. You would think that lesson was learnt during the Pandemic where we had a range of highly skilled professionals leave the country as they could not see a pathway to residency. No guaranteed residency pathway in New Zealand = another country.

While some may settle on a counter-factual position here (i.e. it may be a better outcome for New Zealand not to visa people with health/character issues), that is too simplistic and fails to appreciate the large volume of applicants that do have family with health issues. Remember it only takes one person in an entire family to create a problem for all.   We think this will lead to harsh outcomes and the country losing a positive “net” contribution from some highly skilled people.

Certainty of a residency outcome is key for most migrants, and what we have here is far from a simple and clear process. What is worse, people will enter the 24-month work-to-residence process not knowing that ultimately they are going to fail at the final hurdle. Some may not even  start the process to avoid that outcome, thus exacerbating skill shortages further.

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