Residence Application from JSV: Request for Comment

[rktcabuay]

Hi All,

Yesterday, we received an email from our VO, implicating a possible decline of our residence application. She stated:

Sustainability
We have concerns regarding the sustainability of your employment. For a job to meet the Skilled Migrant Category (SMC) requirements for skilled employment it must be ongoing and sustainable as per SM7.15 b.

Your employer has explained that you are on a fixed term contract to cover maternity leave and once this comes to an end consideration will be given to extending your employment provided there is a business need. As such there is no certainty that your employment is ongoing and sustainable as per SMC requirements and it therefore may not qualify for points for skilled employment.

Deferral Period Requirements
It appears from the above concern that we are not satisfied you meet the skilled migrant policy requirements of SM7.15 to be awarded points for skilled employment.

Since we have concerns regarding your eligibility to meet the skilled employment criteria, INZ could not be satisfied that you had obtained skilled employment during your deferral period.

You are subject to SM21.15b in that, on the expiry of the nine month deferral period, a principal applicant has not provided evidence that satisfies a visa or immigration officer that they have become established in ongoing skilled employment in New Zealand, the principal applicant will be assessed as not having demonstrated that they can realise their potential to successfully settle in and contribute to New Zealand and the application for residence under the Skilled Migrant Category will be declined. Your deferral period ends on the 10 October 2012.

Please refer to policy, quoted in part below:

SM2.15 Grant of residence following deferral (effective 29/11/10)
b. If, on the expiry of the deferral period (see SM21.10(c)), a principal applicant has not provided evidence that satisfies an immigration officer that they have obtained an offer of skilled employment in New Zealand, the principal applicant will be assessed as not having demonstrated that they can realise their potential to successfully settle in and contribute to New Zealand and the application for a resident visa under the Skilled Migrant Category will be declined.
We have not made a decision on your application at this stage. We invite you to make comments or provide further information in response to our concerns.


My wife is the principal applicant. She had two offers. One for a permanent role in Tauranga and another for a maternity fixed term contract in Auckland. We chose the latter being it a multinational company, with a better offer and role, and a preferred location. In the contract, it explicitly mentioned that the contract will go for 13 months regardless if the employee on maternity will be back soon or not. It also stated the possibility of a permanent role offer depending on business need.

She also quoted:

Employment must be ongoing and sustainable. Ongoing and sustainable employment is:
an offer of employment or current employment with a single employer and permanent, or indefinite, or for a stated term of at least twelve months with an option for the employee of further terms, and of which the employer is in a position to meet the terms specified; or
employment on a contract basis where the applicant:
has a consistent history of contract work, and
has a current contract for services, and
INZ is satisfied that such contract work is likely to be sustained.
Note: When assessing whether employment is sustainable, officers may consider, but are not limited to, such factors as the residence status of the employer, the period for which the employing organisation has been established as a going concern, and the financial sustainability of the employing organisation.

We were given until 6 September to provide a comment to her assessment. We would want to ask for suggestions on how to go about this, or is it already a battle lost? What can we ask from my wife's employer that could help us with our plea?

I would start a different thread later on as how to go about if our residency is declined. Leaving, I'm afraid, is not really an option. Just like most of us.

Thank you!

JandM, I'd really want to hear your take on this.

[sks]

Sympathies. Seems your wife ought to get a more explicit option of an extension, if her employer is happy to do so, which should satisfy your CO's stated concern. Otherwise, she'd better sort a new offer very soon.

Because, without a valid visa, it's all well to say:

... Leaving, I'm afraid, is not really an option...

,

but it might become true in a sense you don't want (as in, "no longer optional.")

[Adams Girl]

Is the job in Tauranga still open? Sorry, I'm not sure of the timing here. If it is, I would be sorely tempted to drop everything and run to that one. When not in a PR situation, it's a very risky thing to do, to take a fixed term job. I suppose the Auckland company could try writing a letter in your support, but if there is no guarantee of a job at the end, then there's really nothing NZIS can do about that, and you might not end up with a work permit or PR. Sorry.

[rktcabuay]

@SKS: We'll try to get her employer to write something to support our application. But I'm not too sure of how far they can rally behind us. We just thought that my wife getting a managerial post in a top company would mean anything. The mere fact that she was offered a permanent role from that in Tauranga, means that there is great potential for us to settle here and contribute. 13mos as a manager would actually be enough, in my opinion. It's just frustrating. When I said, leaving is not an option, I meant, leaving NZ and not the job. Our visas are to expire on 10 Oct. I'm just wondering what we can bring to our case officer for a strong appeal. Anyone?

@Adams Girl: Unfortunately, I don't think it still is. My wife already turned it down when she signed to her current job. I know it was such a big risk. I hate the "I told you so" playing at the back of my mind. It's just that, the offer was way bigger, managerial post not just a senior role, and it's in Auckland (but I'll have to give Tauranga the point for this).

So it has no bearing even if it states in the contract that her employment will be for 13mos, it will continue even if the employee in maternity will be back earlier, and based on performance and business needs, a possible permanent role will be given?

Anyone?

Thanks for the replies.

[wellingtonian]

Hey, well first I think your easy option would be to request a Work Visa whenever the current one is about to expire and so you can stay longer in NZ. But unfortunately this would mean having the VISA probably until those 13months have passed to see if your wife gets a new contract/offer. The only real problem with that is the uncertainty of not knowing if you'll ever get the residency because she might end up getting another fixed term contract.

Now, what I would do is read thoroughly all the clauses and pick on small things like what you were saying: "....a stated term of at least twelve months with an option ..." and quote each one of those and give back feedback in how your condition complies with whatever the rule says.
On my application, I didn't have problems, but when I submitted it I was really careful to read each thing on detail, and then justify why my application was complying with it. Things like how my work matches the category of the Australian organization that they mention, I was even very careful to ask my HR coordinator (who wrote the letter for the proof of my current employment) to quote that same category, and to explicitly say that my employment was on the shortlist and the future growth list as well. All of these because for a case officer it can be hard to understand small differences that one can take for granted. Think that each job/profession is different, each one have different terminology and it is probably too hard for one person to understand all of them.
Anyways, I'm way out of the subject now. So yeah, that's what I would do. Also, if possible try to ask for a face to face meeting with your case officer and take all of this info with you, I'm pretty sure they will understand or at least they will give you a better idea of your options.

[JandM]

I don't have anything specific to add to what has gone before. I agree with wellingtonian, that the hope here is through arguing every tiny point.

Another thought occurs to me. Do you yourself have a job in NZ now? Is it by any chance something that could get you a work visa? As, if it could, your wife could be eligible for a partner-sponsored work visa on the back of it, which might buy some time while you sort out a better option.

[anonimoose]

[anonimoose]

Hi rktcabuay,

I'm very sorry to hear this bad news!

At this point, it's useless to suggest what you and your wife should/could've done to prevent this from happening so I'm just going to share my 2 cents on what I think about the facts you provided here:

The case officer stated that at this point, it "appears" to them that your wife did not meet the skilled migrant policy requirements in operational manual SM7.15, now if we try to refer to details of that policy and check against the information you told us:

a. Skilled employment only qualifies for points if the employment is:

i. fulltime (employment is full-time if it amounts to, on average, at least 30 hours per week); and

Does the contract shows that your wife's work is at least 30 hours a week? If yes, then we can assume it is fulltime.

ii. genuine; and
I assume yes?

iii. for a position that is paid by salary or wages or in terms of a contract for service (payment by commission and/or retainer are not acceptable), and
If she's not paid by commission, looks good

iv. accompanied by evidence of full or provisional registration, or evidence of eligibility for registration by the New Zealand Medical or Dental Council subject only to an interview with the relevant registration authority on arrival, if full or provisional registration is required by law to undertake the employment (see SM19.20); and
If registration not required, not applicable

v. the employment was not offered as a result of payment made by the applicant (or their agent) to the employer (or their agent) in exchange for securing that offer of employment. Such practices are contrary to the principles of the Wages Protection Act 1983, as well as to immigration instructions.
If legitimate, not applicable

b. Employment must be ongoing and sustainable. Ongoing and sustainable employment is:

[I]i. an offer of employment or current employment with a single employer and permanent, or indefinite, or for a stated term of at least twelve months with an option for the employee of further terms, and of which the employer is in a position to meet the terms specified; or[/I]
This is the specific policy cited by the officer concerning the sustainability of the employment. But according to you, the contract explicitly states the contract for 13 months ("at least twelve months" - check), with possibility of permanent role offer ("with an option for the employee of further terms" - check). My guess here why it becomes a concern, is the fact that it is NOT guaranteed that your wife will get the permanent role after the specified contract duration, but the policy also mentions that "and of which the employer is in a position to meet the terms specified". I may be wrong but how I interpret this is if your wife's employer can actually back her up, perhaps through letter or a new contract that states a more permanent role, show willingness to support her or other proof of sustainable employment, contract extension due to huge amount of work in the pipeline, etc.

It may help to mention the other offer in Tauranga just to emphasize that she can find skilled employment but decided to take the other (current) job because of the considerations you told us. This is your last chance to tell them your side, try to tell them all rather than hold back and regret later when it's too late. If it's really just a matter of wrong choice rather than inability to find skilled employment, try to stress that and make sure that comes across to them clearly.

ii. employment on a contract basis where the applicant:
* has a consistent history of contract work, and
* has a current contract for services, and
* INZ is satisfied that such contract work is likely to be sustained.
It might help if your wife has contract work history, but in the end it's a matter of proving if current work can be sustained for a long time

c. In the case of independent midwife practitioners a letter of authority to claim under the Maternity Notice pursuant to Section 88 of the New Zealand Public Health and Disability Act 2000 as well as evidence of admission to the New Zealand Register of Midwives will satisfy the requirements of SM7.5(b), SM7.15(a)(i),(ii) and (iii), SM7.15(b), and can be used to satisfy the requirements of SM4.30.10(a)(i).
Unless your wife is Midwife, then not applicable

I can't give info on other routes you can take, like going for work visa essential skills route due to my limited knowledge of that visa type and your wife's line of work.

I hope it didn't come out as giving an immigration advice because it's not, I just matched the facts you provided against the policy your CO cited, MODS -- do let me know otherwise.

Best of luck! Hope this helps.

[rktcabuay]

Thanks all. We're getting ready with our case hoping that my wife's employer would really give us something to support our application. Believe it or not, we tried our best to make our application decline-proof. We even asked my wife's employer to tweak a bit of the contract and provide more documents to support the job description. We included there that Grace was offered a permanent role. I'm not too sure what else was lacking. I guess we just have to request a face to face meeting so that we can explain better our case. Do they usually do face to face meetings?

I'd like to thank you for all your suggestions and I will update you with the results as it may also help other people who would go through the same ordeal. As to your suggestion JandM, I'm actually looking after our baby full time. I was thinking of looking for a job after being granted residency. But it will just be nightshift for me. I don't think it is an option. With your expertise though, if our residency gets declined. What would be our options? I'm just a bit confused what to do if so. We are a JSV holder. It would expire on 10 Oct. To stay legally, we have to have a valid visa. Currently, I also have a work permit same with that of my wife's. My daughter has a visitor's visa. So is it a renewal of the JSV? Or would it be applying for a work permit?

[JandM]

Thoughts. 1) We have very rarely heard of people being able to meet INZ officials in person. I don't think it's explanation that is missing from your application. It's not down to the status of a company, or what impression is made. COs work by being able to tick certain boxes - it's as simple and cut-and-dried as that. Your one has told you the boxes s/he didn't feel able to tick at the moment, with your wife's existing job, on the information provided. On that score, anonimoose's post is the best kind of argument (I think) to put against that, UNLESS you can get your wife's employer to beef up their description of what they can offer her as ongoing work. If they won't do this, and if INZ can't accept this position as meeting the description of skilled employment, your only chance of fulfilling the criteria and getting your wife's deferred Residence is to get a different job, offered on a permanent basis, before the JSV runs out.

2) Working night shifts could still add up to a full-time job, if the person works at least 30 hours per week. The crucial thing on that possibility would be if your work would be skilled.

3) You can't renew a JSV - it's a one-time possibility to get a skilled job offer, or leave. If this JSV runs out and your wife hasn't found a way to get this job accepted by INZ, or get a different offer that they will be happy with, your only way to stay will be to get a different visa - that is, start an entirely separate application. And time is pressing, so work visa or WTR would probably be the way to go. http://www.immigration.govt.nz/migra.../requirements/ http://www.immigration.govt.nz/migra.../caniworkinnz/

Another thought - is your wife by any chance within the age range for a WHV? http://www.immigration.govt.nz/migra...orkingholiday/ This might give her the chance to stay on in NZ sorting out a job offer, even if you and your daughter had to leave for the time being, to come back legally after the situation was stabilised.