What Happens If an Employee Breaches Their Visa Conditions?
The reality is that visa breaches happen. Sometimes they are intentional, but often they happen because an employee or employer did not understand what was required, or a change was made without realising Immigration New Zealand approval was needed first.
Both employers and migrant workers need to understand the conditions attached to a visa and ensure any changes to employment are handled correctly.
Understanding visa conditions
Every work visa issued by Immigration New Zealand has conditions attached. These conditions set out what the visa holder can and cannot do while they are in New Zealand.
Depending on the type of visa, conditions may include:
The employer they are approved to work for.
The role or occupation they can work in.
The location where they can work.
The type of work they are permitted to undertake.
The length of time they can remain in New Zealand.
If an employee works outside these conditions, they may be in breach of their visa.
Common examples of visa breaches
There are several situations where visa breaches can occur. Some common examples include:
An employee leaving one employer and starting with a new employer before their Job Change application has been approved.
An employee moving into a different position that is not covered by their current visa.
An employee working at a different location from what is approved on their visa.
An employee continuing to work after their visa has expired.
Many of these situations happen because people do not realise that immigration approval is required before making changes.
What are the consequences of a visa breach?
For the employee, a visa breach can have serious consequences. It may impact their ability to remain in New Zealand, apply for future visas, or work towards residence.
A person who breaches their visa conditions may become liable for deportation and could receive a Deportation Liability Notice under section 157(5)(a) of the Immigration Act 2009.
Receiving a Deportation Liability Notice does not automatically mean a person will be deported, but it is a serious immigration matter that needs to be addressed. Immigration New Zealand will consider the circumstances of the breach, including what happened, the seriousness of the breach, and any steps taken to remedy the situation.
Immigration New Zealand also considers visa compliance when assessing future applications. A history of not complying with visa conditions can make future applications more complex and may require additional explanations and evidence.
Employers also have responsibilities when employing migrant workers. Allowing someone to work outside their visa conditions can create compliance concerns.
For accredited employers, maintaining good immigration processes is particularly important. Issues with migrant worker compliance can impact an employer's accreditation and ability to continue hiring migrant workers in the future.
Can a visa breach be fixed?
Not every situation is the same, and the outcome will depend on factors such as what happened, how long the breach occurred for, why it happened, and what steps have been taken to address it.
The most important thing is not to ignore the issue.
Recently, I assisted an employee who had breached their visa conditions, as well as an employer who had not met their immigration responsibilities. The situation required a careful review of what had occurred, preparation of the relevant information, and a clear remedial plan for Immigration New Zealand.
By addressing the issues, demonstrating what had happened, and putting the right steps in place moving forward, we were able to achieve a great outcome.
This was a good reminder that while visa breaches are serious, taking action early and getting the right advice can make a significant difference.
What should you do if you discover a potential breach?
If you think an employee may have breached their visa conditions, this is a good time to get immigration advice.
One phone call could put your worries to rest, or it could be the first step in understanding what has happened and working through how the situation can be remedied.
The worst thing you can do is ignore the issue and hope it resolves itself. Immigration matters are often easier to address when they are identified early, and the right steps are taken.
Getting advice before making changes
Many visa issues can be avoided by getting advice before making changes to a migrant employee's employment.
Before changing an employee's role, employer, location, or employment conditions, it is important to check whether Immigration New Zealand approval is required.
A quick conversation before making a change can save a lot of stress, delays and potential costs later.
At Navigate Immigration Services, I work with both employers and migrant workers to help them understand their immigration obligations and navigate situations where things have not gone as planned.
Need help?
If you are an employer unsure about your obligations, or a migrant worker concerned that something may have gone wrong with your visa conditions, don't wait until the issue becomes bigger.
Getting advice early can help you understand your options, put the right steps in place, and give you confidence that the situation is being handled correctly.
Feel free to reach out to Navigate Immigration Services, I'm happy to talk through your situation and help you understand the best way forward.
📧 jo@navigateimmigration.co.nz 📞+64 27 477 2088
👩💻 ww.navigateimmigration.co.nz
