'More than 3 months' condition for SMC

[Gunkub]

Hi All,

First of all, I'm grateful for all of the helpful threads that has been made here. It certainly helps clear up a lot of doubts. I just have a few things I would like to make sure of, however.

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First off, from this thread: https://www.enz.org/forum/showthread.php?t=52147&page=2

That part is absolutely standard - it is true for all residence visas.
This is a standard condition for anyone who had not been in their skilled employment for three months or more at the time they made their application. (In other words, INZ don't stop and think, 'Ah, now the processing has been going on for 12 weeks, so actually he has been with the company three months already, and I don't need to put this condition on.')

However, the condition is only that you must stay in the employment for three months. Whenever you have evidence to hand that you have done this - as you say, your salary slips, and your financial and tax records - you can show these to INZ, and the condition will be removed.

And also this part on the INZ website: https://www.immigration.govt.nz/abou...igrant-details

When I am granted residence will conditions be imposed on my resident visa?
Conditions will be imposed if you haven’t yet taken up your offer of skilled employment or you haven’t been in your current skilled employment for three months or more at the time we assess your application. One of those conditions will be that you continue to be paid at or above the level of remuneration for which skilled employment points where awarded to you, during the period for which conditions are imposed. Conditions may be imposed for 3 or 12 months.

This is probably gonna sound stupid, but I would love to confirm what they meant exactly in bold:
a) EOI Submission
b) ITA received
c) Application lodgement

i.e. when counting 3 months work, do they count from the date you start working till EOI submission or when they give ITA or when you actually lodge that application after ITA.

My common sense tell me that it's C, but you can never be too sure. I don't mind waiting for 3 months before submitting my EOI, but if it doesn't hurt, why not do it a bit quicker.

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Now the second question (and this is probably a lot more uncommon). I have been with my employer for 3 months already (since end of Nov, although I was on leave for a month), but I couldn't apply for residence because I haven't got enough points.

Now my employer has offered to transfer me to Christchurch so that I can claim for bonus points and get my residency. My question is would they count my 3 months in Auckland towards this requirement, considering that it's the exact same job for the same employer, just that I will be living and working in Christchurch from then on.

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Lastly, if I'm still living in Auckland, but I know I will be in Christchurch by the end of this month, can I submit my EOI now (if I claim points for out of Auckland) or should I wait until I'm physically in Christchurch?

Thanks a lot!

[JandM]

Your common sense is right - it's c). When the case is looked at by INZ officials, its first appearance in the INZ computer will be when it was officially lodged, so it's three months before that date that counts.

Second question - I don't know. There is a case, and you could try, and/but I think you might have some arguing to do to convince the CO, just depending on his/her take on things. It's not as straightforward as if it was all on the same site.

No, you can't send it yet. When you submit, you are in effect affirming that everything on the form is the truth - and it wouldn't be.

[Hugh.H]

My application was lodged when I hadn’t been in my current skilled employment for three months. However, my total time in skilled employment at that time was more than three months (With the same employer, but I just started the new position at the time I sent my ITA).

Will my resident visa if approved have the section 49 conditions?

If yes, should I change the point I have claimed? Remove the point awarded for skilled employment outside of Auckland, and claim more points for “Skilled work experience” and “Work experience in an area of absolute skills shortage”? ("New" total point will be 160). How can I do that? By emailing the CO?

[Hugh.H]

My application was lodged when I hadn’t been in my current skilled employment for three months. However, my total time in skilled employment at that time was more than three months (With the same employer, but I just started the new position at the time I sent my ITA).

Will my resident visa if approved have the section 49 conditions?

If yes, should I change the point I have claimed? Remove the point awarded for skilled employment outside of Auckland, and claim more points for “Skilled work experience” and “Work experience in an area of absolute skills shortage”? ("New" total point will be 160). How can I do that? By emailing the CO?

Just to clarify my question.


I got transferred from a location to another (The same company, with a new job offer and a new employment agreement, both locations are outside of Auckland, both positions have the same ANZSCO code).

I had been in the new position for less than three months, but had been working for the company for more than one year at the time my application was lodged.


Will my resident visa if approved have the section 49 conditions?

If yes, should I change the point I have claimed? Remove the point awarded for skilled employment outside of Auckland, and claim more points for “Skilled work experience” and “Work experience in an area of absolute skills shortage”? ("New" total point will be 160). How can I do that? By emailing the CO?

[EGoodhue]

Your skilled employment will be assessed on your current skilled employment - so your new role, even though it's the same company. So yes, if you have been in that current skilled employment for less than 3 months at the time your application is assessed and finalised, then you would have s49(1) conditions imposed if you are approved. But keep in mind that it often takes more than 3 months for an application to go through the process, so you may have been in your new employment for more than 3 months by the time your application is finalised anyway.

You could email your CO, but they will likely assess you against points you are eligible for in your application regardless. I wouldn't worry about changing anything, the CO will assess all aspects of your application against instructions anyway.

[Hugh.H]

Thanks for your reply. Did you mean that they will count up to the time the CO makes a decision not when the application was lodged? I've been in my current employment for over six months so far. And still waiting. Will the conditions be imposed?

[JandM]

Hugh.H, nobody here can tell you for certain whether you will or will not get Section 49(1) conditions if approved. We're not INZ. From seeing what happens to other people's cases, I can tell you that some people like you HAVE had the condition, although some HAVEN'T, and from what you say, it is arguable that you shouldn't do.

Edited to say, EGoodhue is speaking from experience as a previous CO, so that brings an extra dimension.

If yes, should I change the point I have claimed? Remove the point awarded for skilled employment outside of Auckland, and claim more points for “Skilled work experience” and “Work experience in an area of absolute skills shortage”?

Unless you have an LIA working for you, nobody can tell you what you ought to do with your application. It would be immigration advice, and against NZ law.

More thoughts here, though. Changing the details of an application when it is already being processed (unless there is a change of job or personal circumstances meantime) is not normally ever done. If INZ allowed you to change things, and I don't know that they would, it would mean a whole lot of extra checking of evidence for the new sets of points you wanted to claim, and therefore, longer processing time. Also, are you hoping to leave your employment soon? - otherwise, the condition isn't very limiting, as it gets removed in due time.

[Hugh.H]

My job is going well. But one year is not a very short time. No conditions will be better anyway

[Gunkub]

Thanks everyone for the reply!

Sorry I was too caught up in things so I wasn’t able to come back to check and ended up forgetting.

I have another question if that is alright.

Say if I move to Christchurch and mainly work there, but my employer might require me to work in Auckland sometimes would that be alright? The ratio will probably be 2 to 1 e.g. Chch 2 months, then AKL for a month and so on. This would mean that I would spend 2/3 of my time working in Christchurch and roughly 1/3 in AKL.

Has anyone been through this (or have at least seen it?) I have look around and found the key word to be “principal place of work” on the operation manual. So this is probably not that uncommon, but there is no strict definition on what that actually means (going by common sense, I assume it would be more than half the time, or the most of out all locations combined).

I hope that someone might be able to confirm

Thanks again!

[Hugh.H]

I've received my RV without the section 49 conditions.
Special thanks to ChrisMwn, JandM, EGoodhue, and this helpful forum.