The Immigration Act 2009

New Obligations for Employers and Sponsors of Parents

Employers

VisaView

The Immigration Act 2009 came into force on 29 November 2010. With it, employers will be under strict obligations to ensure foreign nationals are legally employed. The penalties for non-compliance are significant. The Act and the Department of Labour have created a new tool to assist employers avoid breaching the law.

For the first time the Act creates the provision for corporate entities (employers) to sponsor visa applications. Sponsorship will also carry the potential for significant obligations. Employers should ensure they are fully informed of their responsibilities.

Illegal Work

The Act creates three types of offences relating to illegal work:

• Where an employer employs a foreign national knowing that person has no authority to work under the Immigration Act 2009.
• Permitting a foreign national to work having been made aware that he or she has no lawful entitlement to work.
• Appointing a person to work in a role not authorised under that person’s work permit.

An employer can no longer claim a lack of knowledge as a defence unless the employer has taken reasonable precautions and exercised due diligence to ascertain the employee’s entitlement to work. The Act also maintains offences for an aiding and abetting entry in contravention of the Act. An example of that would be an employer who encourages a prospective foreign national employee to enter on a visitor permit so that they can then apply for a work permit on-shore.

The Act also creates offences in respect of exploitation of workers.

Penalties for non compliance are significant. Breaches of the provisions relating to illegal work carry maximum fines of $10,000 or $50,000. Breaches of the provisions relating to exploitation of workers carries a maximum fine of $100,000 or imprisonment to a maximum of seven years or both.

Assistance to Employers

The Act does assist employers. Employers can now make an official request to the Chief Executive of the Department of Labour for relevant information to determine if a person is entitled to work.

That request can now be made through the VisaView portal on the Immigration website http://www. immigration.govt.nz/employ/visaview/.

By registering on the VisaView website employers will be able to request information to establish whether or not a foreign national, applying for a position of employment, has an authority to work in New Zealand.

Sponsorship

For the first time employers can now sponsor work visa applications.

The grant of a work visa can be conditional upon sponsorship undertakings relating to employment, accommodation and maintenance, including costs of publicly funded services.

Corporate sponsors must nominate an individual in the business as an authorised contact.

Failure of a sponsor to comply with an undertaking will result in a debt becoming due to the Crown if the Crown incurs costs as a result of that failure. Third parties can also pursue the sponsor if a failure to comply with an undertaking causes cost. Such debts are now recoverable through the Courts.

A failure of a sponsor to honour an undertaking will also result in the visa holder being deemed to have breached the conditions of their visa. That would be a basis for the visa being cancelled.

Our advice – keep it simple. Get your HR systems in place to manage the change and get educated about your new responsibilities.

Family Sponsorship Changes

The new Act and policy also requires children sponsoring parents to meet “mandatory undertakings” in respect of accommodation, maintenance (living costs), return travel and deportation for a period of 5 years from the date of residence being granted or date of arrival if granted residence offshore. The residence entitlement of the sponsored applicants is conditional upon these undertakings being met. A breach of the sponsorship undertakings can have serious repercussions for a visa holder and the sponsor.

Conclusions

These changes emphasise the need for employers and sponsors to be fully advised of their obligations before undertaking sponsorship of a visa application. The changes emphasise the need for professional advice in regard immigration matters generally.