Common Pitfalls in the Skilled Migrant Category Residence Visa Application and How to Avoid Them

The Skilled Migrant Category (SMC) has long been one of the pillars of New Zealand’s immigration system, providing a New Zealand residence option for applicants (and their families) who can show they possess the skills and expertise that New Zealand requires.

In October 2023, Immigration New Zealand (INZ) overhauled the SMC with the aim of simplifying its requirements and streamlining the application process. Despite these “improvements”, however, the SMC continues to present a host of challenges and potential fishhooks for potential visa applicants. 

To qualify under the SMC, applicants must meet mandatory criteria such as having current skilled employment or an offer of skilled employment with a New Zealand employer that holds an accreditation with Immigration New Zealand, be aged 55 or under, be healthy, be of good character, and meet minimum English language requirements.  Applicants must also successfully claim at least 6 points, with points allocated for income, qualification, New Zealand licensing, certification or registration, and work experience gained in New Zealand. 

Applicants may claim between 3 – 6 points for:

1. their income (based on the New Zealand median wage published from time to time) from skilled employment or an offer of skilled employment with an INZ accredited employer; or

2. their qualification; or

3. their licensing, certification or registration in New Zealand; and

4. they may claim between 1 - 3 points for skilled work experience gained in New Zealand.

Note that 1 – 3 above (income, qualification and licensing, certification or registration) are mutually exclusive in that you can only claim one, and 4 (skilled work experience gained in NZ) provides an opportunity for claiming any additional points needed to reach the 6  total required. Each of these points criteria contains their own set of requirements that applicants must meet.

Overview of the application process

The SMC involves a two stage process, with the first stage being the preparation and lodgement of an online “Expression of Interest” (EOI) and, if invited to apply, the second stage being the lodgement of an online SMC residence visa application. While the EOI stage is now free of charge (INZ used to charge a fee for EOIs), the INZ application fee for the application has increased significantly. The EOI requires the completion of an online form only (no documents are provided at this stage), with applicants required to upload all of their supporting evidence at the second application stage when lodging their application online.

Common pitfalls and their solutions

There are numerous potential fishhooks under the SMC when assessing potential eligibility and calculating points, which I’ve grouped into the following two broad subject headings: (i) meeting the Skilled Employment and ANZSCO requirements; and (ii) meeting the income requirements (although, as you’ll see, the two areas intersect).

1. Meeting the Skilled Employment and ANZSCO requirements

   Immigration New Zealand uses the Australia New Zealand Standard Classification of Occupations (ANZSCO) to determine the skill level of an applicant’s employment and, more specifically, to determine whether an applicant (i) meets the SMC’s “skilled employment” requirements and (ii) meets the requirements for claiming points for “skilled work experience in New Zealand”, which I address separately below.

   • Whether an applicant meets the SMC’s “skilled employment” requirements

     If a person’s employment is assessed by INZ as an ANZSCO skill level 1-3 occupation, then they must be paid at least the median wage. But if their occupation is instead assessed as an ANZSCO skill level 4 or 5 occupation (i.e. a lower skilled role), they must be paid at 1.5 times the median wage to meet the skilled employment requirements. How this works in practice is that if an immigration officer isn’t satisfied that a person’s employment matches an ANZSCO skill level 1-3, INZ will identify the next closest ANZSCO, which could be a lower ANZSCO skill level at 4 or 5, and if so, and the person is not earning 1.5 times the median wage, the application would normally be declined.

   • Whether an applicant meets the requirements for claiming points for “skilled work experience in New Zealand”

     If a person’s employment is assessed as an ANZSCO skill level 1-3 occupation, they must be paid at least the median wage to claim points for skilled work experience in New Zealand. But if their occupation is assessed as an ANZSCO skill level 4 or 5 occupation, they must be paid at least 1.5 times the median wage to claim points for skilled work experience in New Zealand. The exception to this is where the person is also claiming points for income, in which case they must have been paid at that same level of income (e.g. 1.5 or 2 x the median wage as applicable) during their skilled work experience in New Zealand to qualify for points. As mentioned below, this exception could be problematic for potential applicants.

   The ANZSCO assessment that an INZ officer may conduct involves them assessing whether an applicant’s employment is a “substantial match” with the relevant ANZSCO occupation, and also whether the applicant is “suitably qualified” in terms of having either a relevant qualification at the level stipulated for that ANZSCO occupation or the relevant work experience which may substitute for the qualification.

   In practice, these ANZSCO assessments can become highly forensic, with the immigration officer ‘interrogating’ the job description and other employment documents and even contacting the employer to discuss the applicant’s role. Ask any immigration lawyer, and they’ll tell you stories of receiving 10 page- long letters from INZ in which an immigration officer has “dissected” the applicant’s employment by reference to each ANZSCO task and concluded the employment is not a “substantial match” with the relevant ANZSCO occupation. Needless to say, it’s best to get the right immigration advice early on so as to potentially avoid the stress, time and expense of trying to respond to such letters.

   Interestingly, if one is claiming points for a qualification or skilled work experience in New Zealand, there is no requirement for that qualification or experience to be relevant to the person’s current skilled employment. So, for example, it’s theoretically possible for a person to claim 5 points for a Masters qualification in Science and 1 point for a year’s skilled work experience in New Zealand working as an Accountant (bringing their total points claim to 6), and hold current skilled employment in a different occupation. However, as explained above, they would still need to show they were “suitably qualified” (by reference to the relevant ANZSCO occupation) to undertake both their current skilled employment and their skilled work experience in NZ. Also, in practice, this type of scenario would likely be rare due to the time limits in respect of claiming skilled work experience in New Zealand (e.g. the one year’s skilled work experience in NZ for claiming 1 point must have been gained within the most recent 2 years).

2. Meeting income requirements

   The way INZ calculates remuneration for the SMC is also complicated and contains a number of potential fishhooks. For example,

   • If a person is paid a salary, they need to check that their ‘effective’ hourly rate meets the relevant requirements. Specifically, they need to be careful that any overtime work required of them doesn’t have the effect of ‘diluting’ their hourly rate below the median wage or the level of income for which they’re claiming points;

   • If a person’s income is at the median wage initially but the median wage then increases (i.e. above their income), they can normally continue to claim points for their skilled work experience in New Zealand unless they change jobs, at which stage their new job would need to offer at least the new/current median wage for them to potentially continue to claim those points;

   • As mentioned above, if a person is claiming points for both income and skilled work experience in New Zealand, the income they earned during the period for which they’re claiming points for skilled work experience must be at the same level to that which they’re claiming points for income. So, for example, if a person claims 3 points for income of 1.5 times the median wage and 3 points for three years of NZ skilled work experience (i.e. 6 points in total), they must have been earning at least 1.5 times the median wage during those 3 years to claim points for skilled work experience in NZ.

Conclusion

These are just some of the complexities and potential pitfalls involved in the SMC, and there are many others which could affect you, depending on your circumstances. Therefore, before rushing to get your application lodged with INZ, I’d always recommend arranging a paid consultation with an immigration lawyer or adviser, who can sit down with you and your documents, properly assess your potential eligibility, and work through any potential issues with you, so as to hopefully avoid any nasty surprises down the line.