Help: Can you work while waiting for the reconsideration outcome

[wepower]

Hi guys

My employee recently got her work visa declined, her interim visa will expire in 3 days, 27th June. She already requested reconsideration of the declined decision.

I guess after her interim visa expired she is not allowed to work as she doesnt have any valid visa.

Thanks

Hugh

[larrykiwi]

Whether your employee can work or not during interim visa depends on what visa she was on and what visa she is applying. If both are employer specific, same job and same location, then she may be able to continue to work. However, once the visa is declined, she can no longer work, though she can remain lawful in NZ for 21 days from the decision date. The interim visa expires 21 days after the decision is made.

[wepower]

Thanks Larrykiwi. Yes that makes sense. She's now not allow to work since her work visa declined.

From the employer perspective. She's currently waiting reconsideration of declined work visa application. Can I put her on leave without pay until we know the outcome or I have to terminate her employment contract now.

[cakes88]

She basically won't be able to work after her interim visa is expired as she won't have any visa and she should leave NZ ASAP or else she will be unlawful. Having applied for reconsideration doesn't mean she gets lawful status to stay in NZ.

Having said that, she doesn't have to resigned from your company as there is no statement from INZ saying this. In my view you can put her to unpaid leave until she get her visa decision.

[allune]

@cakes88 Actually... legislation changed in August 2018... you don’t become unlawful right away after receiving a declined decision while on interim visa. Can’t find the INZ news link so sharing this from Cavell Leitch and Lane Neave (both firms have immigration lawyers.

https://cavell.co.nz/articles/2018/c...isa-conditions
https://www.laneneave.co.nz/interim-visa-policy-change/

[cakes88]

@cakes88 Actually... legislation changed in August 2018... you don’t become unlawful right away after receiving a declined decision while on interim visa. Can’t find the INZ news link so sharing this from Cavell Leitch and Lane Neave (both firms have immigration lawyers.

https://cavell.co.nz/articles/2018/c...isa-conditions
https://www.laneneave.co.nz/interim-visa-policy-change/

Hi allune,

You are correct regarding with interim visa, it won't expired straight away after receiving declined decision but in this case her interim visa will be expired in 2 days (so she had gone through 19 days after receiving declined decision) and therefore she won't have any visa to maintain her legal status to stay in NZ even though she has applied for a reconsideration.

you can find this statement on INZ website saying : "Requesting reconsideration does not prevent your current visa from expiring. After your visa expires you will be in New Zealand unlawfully and will be liable for deportation."

source: https://www.immigration.govt.nz/new-...-declined-visa

[larrykiwi]

Thanks Larrykiwi. Yes that makes sense. She's now not allow to work since her work visa declined.

From the employer perspective. She's currently waiting reconsideration of declined work visa application. Can I put her on leave without pay until we know the outcome or I have to terminate her employment contract now.

So long as she is not working you don't have to terminate her contract until she get decision from the reconsideration.

[wepower]

Ah yep. Thanks everyone.

I'll mark her on leave without pay for now. I think I cant really terminate the contract as she's applying for Essential Skill which require offer of employment in place.

[JandM]

You are a very kind and supportive employer.

[allune]

I’ve read there’s something called a Section 61 application which would need a person to seek help of a good LIA to make the case on their behalf. https://communitylaw.org.nz/communit...tion-61-visas/