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Thread: Section 49 conditions

  1. #1
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    Question Section 49 conditions

    So I'm here and I'm working full time. I have a Residency visa for 24 months with SMC (Skilled Migrrant Category). My section 49 conditions are:
    "Holder must take up employment within 3 months of first entry to NZ and remain in that employment for a period of at least 12 months" (the wording may be important)

    Obviously I want to get PR Permanent Residency, and the conditions for that are (if I understand correctly):
    1. basically be of good character - so no problems with the law etc
    2. Have been in employment for at least 6 months, 2 years running (so 12 months+ in total)
    - and PR would be applied for coming up to the end of the 24 month Residency Visa (and from what I hear you have to factor in that INZ might hold onto your passport for months while they do this - so have to be a bit careful with travel plans)

    My understanding is that the SMC visa is independent of the employer, so you can change employer if necessary. Now some promises which were made are looking like they might not appear, so.. If I do 6 months with the current employer, and hand in my notice, then go back home for a bit, find a new employer and then do 6 months+ with that new employer - do you think that would be acceptable?

    My worry is the part of the section 49 conditions which says ..." remain in that employment for a period of at least 12 months".
    Does this mean "with that employer", or does it just mean "be employed in the industry that you gained a visa for"?
    It doesn't say "employer" and it doesn't say "continuous" - so my interpretation is that I can change employer, I'd be best off doing 6 months so I get half way to the PR conditions.

    I suspect I might need to discuss with INZ, and maybe ask for their opinion in writing??

    (I would welcome your collective thoughts - thanks in advance)

  2. #2
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    There are several things here that you haven't understood correctly.

    First thing - a Residence visa lasts forever, while you are in NZ. The travel conditions which come with it last for two years, giving you permission to re-enter NZ in that time as many times as you wish. If you are outside NZ after the travel conditions run out, so you can't get back to benefit from your right to live and work in NZ, that is when a Residence visa can lapse. That is the reason why you need to move on from the first Residence visa, usually to PR.

    The actual conditions for getting PR are here https://www.immigration.govt.nz/new-...anent-resident, then linking through to here. https://www.immigration.govt.nz/new-...ZL&applying=no
    At the first link, you will see this. If you were the principal applicant of the original residence application, you can obtain a Permanent Resident Visa if you:

    have held your resident visa for at least two years, and
    have met any conditions of your Resident Visa, and
    have shown a commitment to New Zealand in one of the five ways that meet our requirements.
    I have bolded the part that has the first impact on your idea. You have to have fulfilled your Section 49(1) condition. In your case, it says that you must work for that employer for a year.

    A Residence visa itself gives the holder the right to live in NZ, and do pretty much anything that is legal - e.g. work at anything, not work, run a business, or study - but any condition on the visa is binding. You have to fulfil the condition. Your application included the offer of a skilled job, and it was granted, as long as the first thing you do is work in that job for 12 months. We have seen on the threads cases where a job or employer has not turned out to be everything it seemed, or the company has gone out of business, before someone has had the chance to meet their conditions, and in such cases, INZ has given the residence-holder the chance to find another job, equally skilled in the skill s/he proved in her/his ITA, and permission to meet the condition by completing the required time with the second employer, but that would have to be for strong reasons, and with INZ's prior agreement.

    Whenever you have fulfilled the condition, you show INZ evidence, such as financial (bank statement, pay slips) and tax records covering the year, and proof that you are still employed with the company, then they will put a different Residence visa label in your passport, with NO conditions on it. Once you have that condition-free residence visa, THEN you are free to give in your notice within the terms of your contract.

    So, looking at this...
    If I do 6 months with the current employer, and hand in my notice, then go back home for a bit, find a new employer and then do 6 months+ with that new employer - do you think that would be acceptable?
    ...no, absolutely not.

    This is wrong.
    Have been in employment for at least 6 months, 2 years running (so 12 months+ in total)
    Look at the second link above. There is no employment requirement for PR. However, one option for proving commitment to NZ is to have been in the country for at least 184 days in each of the two 12-month periods immediately before application.

    So is this.
    - and PR would be applied for coming up to the end of the 24 month Residency Visa
    As mentioned above, the two years' travel conditions run out, not the visa. And you cannot apply in advance of the two-year qualifying period.

    And so is this.
    (and from what I hear you have to factor in that INZ might hold onto your passport for months while they do this - so have to be a bit careful with travel plans)
    Provided you have fulfilled the conditions for PR, it is a very straightforward application, and most people get their passport back with the PR visa label in it in less than two weeks. If you are using the 'time in NZ' criterion, you don't even have to supply evidence of that, because the INZ computer will have recorded all the times you came and went.

  3. #3
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    Thank you JandM - I agree with everything above, except "remain in that employment for a period of at least 12 months" - i don't think this is very specific.
    If it said "remain with that employer" or "remain in continuous employment" then yes, I would agree, but I still think that if I change employer after 6 months (as long as still in the same industry and working more than 30hrs per week), then there isn't a problem.

    I will contact INZ on monday and update with the results

  4. #4
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    It's not what you think about the choice of words of whoever drafted the NZ government's regulations for migrants, but how they choose to interpret or apply them. Be prepared.

  5. #5
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    The more I read, the more I suspect you are right and I will have a problem.
    Have you heard of anyone successfully changing their section 49 conditions?

  6. #6
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    No, you can't CHANGE them - they are absolute. But as I said above, people have sometimes asked nicely, and got INZ to allow them to transfer the balance of the time they are supposed to work over to skilled employment in the same skill but with a different employer. This depends on making a good case, and not giving notice until you have everything sorted out with both INZ, and a new job. Otherwise, no job means no valid visa.

  7. #7
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    I have had similar visa in the past and can confirm everything that JandM wrote in this thread already.

    1. "Remain in that employment" means 1 job. You can't change jobs easily, I dont personally know anyone who was able to.
    2. Pretty much as above, you can't change conditions imposed by INZ. Its non negotiable

    I might be wrong but it sounds like you have some issues with your first work. IF thats the case there are other options, perhaps employment.govt.nz can help you?

  8. #8
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    Quote Originally Posted by gnetizenz View Post
    I have had similar visa in the past and can confirm everything that JandM wrote in this thread already.

    1. "Remain in that employment" means 1 job. You can't change jobs easily, I dont personally know anyone who was able to.
    2. Pretty much as above, you can't change conditions imposed by INZ. Its non negotiable

    I might be wrong but it sounds like you have some issues with your first work. IF thats the case there are other options, perhaps employment.govt.nz can help you?
    not quite correct>

    INZ instructions copied here:


    SM4.30.10 Offer of skilled employment or skilled employment for less than 3 months

    Where a resident visa is granted under the Skilled Migrant Category on the basis that the principal applicant qualifies for points for an offer of skilled employment in New Zealand or current skilled employment in New Zealand for less than three months (see SM7), the visa holder is subject to the following conditions:

    In the case of a principal applicant who has an offer of skilled employment for which bonus points for employment outside the Auckland region (SM9) have not been awarded, that they:
    take up that offer of skilled employment within three months of their first entry to New Zealand as a resident (if the visa was granted offshore), or the grant of their resident visa (if the visa was granted in New Zealand) ; and
    remain in that employment (or another position of employment that meets the requirements for offers of skilled employment including requirements for bonus points if the offer of employment qualified for bonus points under SM8), for a period of at least three months.
    In the case of a principal applicant who has current skilled employment for less than three months for which bonus points for employment outside the Auckland region (SM9) have not been awarded, that they:
    remain in that employment (or another position of employment that meets the requirements for current skilled employment including requirements for bonus points if the employment qualified for bonus points under SM8), for a period of at least three months.
    In the case of a principal applicant who has been awarded bonus points for an offer of skilled employment outside Auckland (SM9), that they:
    take up that offer of skilled employment within three months of their first entry to New Zealand as a resident (if the visa was granted offshore), or the grant of their resident visa (if the visa was granted in New Zealand) ; and
    remain in that employment (or another position of employment that meets the requirements for offers of skilled employment including requirements for bonus points if the offer of employment qualified for bonus points under SM8 or SM9) for a period of at least 12 months.
    In the case of a principal applicant who has been awarded bonus points for current skilled employment outside Auckland (SM9) for less than three months, that they:
    remain in that employment (or another position of employment that meets the requirements for current skilled employment including requirements for bonus points if the employment qualified for bonus points under SM8 or SM9) for a period of at least 12 months.
    The visa holder must:
    inform the nearest office of INZ of their residential address and any changes of residential address while they are subject to those requirements; and
    submit evidence to an immigration officer that the conditions set out in the relevant provision of SM4.30.10(a)-(d) above have been met within five years of:
    their first entry to New Zealand as a resident (if the visa was granted offshore), or
    the grant of their resident visa (if the visa was granted in New Zealand).
    In the case of any accompanying partner and dependent child - that the principal applicant comply with the conditions to which they are subject.

  9. #9
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    Hiya, could you please help me in my situation. I applied for resident visa outside Auckland when I was working for only 1 month and half , now it has been 9 months since I joined and 8 months since I applied for the resident visa.
    What conditions will I get? Will I have to work another one year with the employer or same skilled job ??

  10. #10
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    I can confirm that I can transfer to another employer elsewhere. The detail mentioned by ChrisMwn are correct re:

    SM4.30.10
    remain in that employment (or another position of employment that meets the requirements for offers of skilled employment including requirements for bonus points if the offer of employment qualified for bonus points under SM8 or SM9) for a period of at least 12 months.
    It does have to be with advance discussions with INZ (to check new employment still meets conditions).

    Kp - I suspect you will have a 12 month condition too if outside Auckland?

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