5 Tips for successful Critical Worker Border Exemption Requests to Immigration New Zealand

Below are my “top 5” tips for NZ employers who are lodging requests with Immigration New Zealand (INZ) for their workers to enter the country under the Critical Worker Exemption process.

Specifically, I’ll be discussing here Critical Worker Exemption requests (“Requests”) lodged on the basis that the overseas worker either:

(i)               has unique experience and technical or specialist skills that are not readily obtainable in New Zealand

OR

(ii)              is undertaking a time-critical role for work which brings significant wider benefit to the national or regional economy.

INZ requires employers to select either of the above criteria, although frequently both will be applicable to a particular Request.

1.      It’s a business proposal, not an application

The first point to note is that a Request isn’t the same as a visa application – there’s no appeal right and INZ doesn’t have to provide reasons for refusing to grant the Request. It’s effectively a business proposal, a pitch, and therefore like any successful pitch employers need to ensure they address each of the relevant requirements, present their case in a clear and logical manner, and support their arguments with the appropriate type of evidence. It’s no coincidence that the immigration officers who assess the Requests refer to themselves as “business advisors”.

For the same reason, try to keep it succinct. On a number of the larger scale Requests I’ve been asked to review for NZ employers, the sheer amount of documentation being proposed (all of which purport to describe similar things in different ways) has confused the key messages.

In my view, the key arguments should be clearly and succinctly stated in a cover letter with an executive summary, with supporting documentation providing the evidence needed to support the Request in case the immigration officer needs to see it.

2.      “Not readily available” is a high threshold

It seems clear that the bar in respect of whether a worker in New Zealand is “available” is set higher for Critical Purpose Visitor Visas than for the Essential Skills Work Visa category, despite the similar wording used in the Immigration New Zealand Instruction. It really needs to be the case that there’s either no one available (which was the wording used in the initial Instructions before INZ amended them) or very few people available, owing to the “unique” nature of the experience or technical or specialist skills. A clue is in the examples provided in the INZ Instructions (“some highly specialist veterinarians, vendor-appointed engineers required to install major equipment, or an actor in a key film role”).

3.      Start with your requirement, not the worker

In the last few months, I’ve been approached by a number of large NZ companies who lodged unsuccessful Requests on the basis of the first criterion (i.e. unique experience and technical or specialist skills not readily available in New Zealand). Invariably the key problem I’ve identified with the Requests is that they failed to properly articulate the business problem the employer was trying to solve, and what they required from the overseas worker (in terms of the specific experience and technical or specialist skills) to solve it. Instead, the Requests launched immediately into listing all of the experience and skills their relevant worker possessed, resulting in a proposal that was confusing and lacking in a logical structure and flow. This approach might also have suggested to an INZ officer that the employer hadn’t properly considered any potentially viable alternatives, which is another key requirement.

In my view, an excellent Request should start by clearly defining the business problem and what is needed to solve it. If you do this, then the remainder of the Request should pretty much write itself, and it should be fairly obvious to the reader that the solution (i.e. the particular experience and technical or specialist skills required) is unlikely to be readily available in New Zealand. If it isn’t obvious, you should really be reconsidering whether to bother lodging the Request at all.

4.      Show, don’t just tell

A compelling Request won’t just include a well reasoned explanation as to how the worker meets one or more of the Critical Worker Exemption criteria but will also provide evidence (ideally independent) to support the case. For example, in relation to the “Significant wider benefit to the national or regional economy” criterion, you might provide evidence in the form of a letter from an accountant in respect of the company’s financials or from industry bodies or other private or public sector organisations attesting to the benefits that will be delivered to New Zealand.

5.      Consider alternative working arrangements

As mentioned above, one of the key requirements in the INZ instructions which is often missed by employers in their Requests is the question as to whether alternative working arrangements (e.g. remote working) could resolve the problem without the need for the overseas worker to travel to New Zealand. Employers need to demonstrate to INZ that they’ve considered and exhausted all reasonable alternative options before deciding to bring an overseas worker into the country. Questions that an INZ officer will want to see if you’ve considered include: could the worker deliver the work remotely? Which specific tasks are unable to be conducted by any New Zealand-based worker and why? Why couldn’t some of the duties be delegated to other workers, while continuing to perform other tasks remotely? Are there any other possible options such as remotely training another worker over a period of time to take up the duties while border restrictions are in place?

As with any proposal, it’s always worth getting an objective opinion from a fresh pair of eyes, so feel free to contact me if you’re looking to lodge a Critical Worker Exemption request with INZ and would benefit from some assistance.