Other critical workers: Is there a ray of light in the tunnel?

Recent media coverage has referred to exceptions for the critical production staff for the movie Avatar, the sewerage tunnel in Wellington and a few other mission-critical projects of obvious economic benefit to New Zealand. The original process required support from the Minister of Health and even cabinet plus a Lead Agency. We were told that only 5% of such requests were successful. Recently the process has been devolved to the Minister of Economic Development. On 22 June detailed instructions were finally issued rather than a few bullet points in the media and more involvement by the Minister of immigration given the recent Amendment Act however support will still be required in the foreseeable future from a lead government agency. Those arriving under this criteria pay for their own quarantine. There is an in-depth explanation from senior Immigration New Zealand Manager Jock Gilray on 24 June 2020 here.

On 22 June more detailed instructions were issued for short and long-term essential workers who could be granted exceptions but the devil is in the detail.

It’s a very high hurdle:

Short term

A worker coming to New Zealand for a short-term role (less than six months in total) is considered an ‘other critical worker’ if they have unique experience and technical or specialist skills that are not available in New Zealand, or they are undertaking a time-critical role which:

  • is essential for the delivery of an approved major infrastructure project, or
  • is essential for the delivery of an government approved event, or
  • is essential for the delivery of a major government-approved programme, or is in support of an approved government-to-government agreement, or
  • has significant wider benefit to the national or regional economy.

“Unique experience” is interpreted very strictly to include training and experience which is only available overseas and is completely unavailable in New Zealand not just unavailable to the particular employer. “Significant wider benefit”  will probably require support from the Ministry of Business  Innovation and Employment,  regional development agencies and other high-level government and industry bodies.  Some clients have approached MPs for support.  This is not a widespread solution for employers even of very skilled workers.

 Long term

For long term roles (more than 6 months) as at 22 June 2020 following criteria applied

  • they earn at least twice the median salary (currently NZD $106,080 a year), or
  • they have a role that is essential for the completion or continuation of a science programme under a government funded or partially government-funded contract, including research and development exchanges and partnerships, and has the support of the Science, Innovation and International Branch at MBIE to travel to New Zealand to carry out their work, or
  • they are undertaking a role that is essential for the delivery or execution of:
    • a government-approved event, or
    • major government-approved programme, or
    • approved major infrastructure project.

Some events, projects and programmes have been pre-approved and are contained in relevant lists.

In practice we have found that only roles and projects with an overwhelming business case and very strong support from local and government agencies have any chance of success. MBIE continue to be a significant part of the process despite the decision-making apparently devolving to the Minister of Immigration. This area is something of a political football and it is unclear how it will evolve over the coming months. We understand that at the commencement of the new process on 22 June 2020 MBIE/INZ had something like 100 cases in its queue.

INZ has reminded applicants that even when an approval in principle is issued for a border exception it is still subject to normal health and character requirements.

Long-term common sense suggests that the number of these applications will increase over time as there are still critical skill gaps in New Zealand that returning Kiwis cannot fill. At present these criteria are really only available to a small range of high level projects. It is hoped over time that sensible criteria will be developed for other employers with obvious skill gaps.

Pacific Legal has been involved in a range of these requests. We have very good contacts with INZ and MBIE and we hope to have further news to share in the near future.

Other categories of workers offshore: no movement at the station

Offshore branches remain closed with most managers evacuated back to New Zealand. Reopening is being looked at in COVID free countries in the Pacific and it is hoped to get Beijing and other branches up and running when it is safe to do so.  The reality is that the virus is still raging worldwide.

As at June 2020 no offshore applications are being processed outside the exception process. There is some discussion of extending “enter by” travel conditions for some offshore applicants who have already been issued visas.  The impression at the industry webinar on 25 June is that temporary visa holders are well down the list behind residents and their dependents caught offshore.

The government appears wary of letting non-residents and citizens in when the economic impact of COVID-19 has not yet peaked and when no solution has yet been found for many thousands of applicants whose visas were extended until 25 September due to the pandemic notice.  The higher skilled pandemic visa and others within New Zealand s are probably ahead in the queue of offshore work visa holders and applicants.  This causes considerable hardship to employers.   There is talk from time to time in the media of compassionate consideration for families of work visa holders within New Zealand but the low numbers coming through the border do not suggest any major easing for this group.

The touchstones for immigration New Zealand’s thinking offshore will include whether a visa will be viable given the likely length of border closures for many months and whether a visa will also be viable in a reduced labour market.

Note: this information was up-to-date as of 24 June 2020 but may change at short notice. Further updates can checked at www.immigration.govt.nz.
The above is general information only. Every case is different. For advice in your case we encourage you to contact us

Contact us for an appraisal

Clients need to be realistic about expectations and timeframes at this time but with the right information, we can confidently assess your case and give a realistic appraisal contact us for an assessment of your case.  Please note that initial appraisals will be online and we may need further details from you.