NEW US TRADER AND INVESTOR VISAS
Rob Muldoon once criticized those who bemoaned the “brain drain” of New Zealanders crossing the Tasman. Instead, he believed that the outflow of Kiwis would improve the average IQ of both countries! Not so with the US. On 2nd August 2018 the US President signed the Kiwi Act into law which opens up to Kiwi nationals two additional and very useful visa categories - the Treaty Trader E1 Visa and the Treaty Investor E2 Visa. New Zealand gets to retain its entrepreneurs. Quid pro quo the US allows them extended periods in that country to run their businesses and investments.
Australia has had the benefit of these visas since 2005. Traders and investors from across the Tasman have certainly taken advantage of them by expanding their businesses in the US. Although New Zealand has no similar free trade agreement or immigration treaty with the US, the Kiwi Act effectively circumvents that by treating Kiwis the same as Australians for E1/E2 visa purposes, except that the Aussies still have a unique E3 visa category all to themselves based on demonstrated “special skills” (not to be confused with “special needs”).
The Kiwi Act passed with overwhelming bipartisan support in both the House and Senate and against the current outgoing tide of migration to the US. That bodes well for future US/NZ relations. Congratulations to the officials who got this over the line.
Further work is still required, given that the visa application process will not be available under the Act until New Zealand “provides similar non-immigration status to nationals of the US”. According to government sources New Zealand already does that, but this is subject to review and verification by the US Department of State. This may result in a short delay and for that reason the commencement date for lodging E-visa applications is unknown.
To all our existing and potential clients we would say that there is comfort in knowing that you won’t be swept up in a dawn raid and put on the first flight back. The right visa doesn’t come in a Weetbix packet, but it’s not that hard to get the right process under way that will serve your business needs.
Pinecone relishes the challenge involved in finding the correct visa category to use in your US business and helping you get over the line.
What type of Visa category are they? Both categories are non-immigrant visas which means they are not a pathway to obtaining residency or citizenship.
What do they allow? The E1 visa allows Kiwis to enter the United States and remain there solely to engage in NZ/US trade on their own behalf. The E2 visa allows Kiwis to enter the United States and remain there when investing a substantial amount of capital in a US business.
Who can apply? New Zealand nationals.
What is the eligibility criteria for an E1 visa? The E1 Treaty Trader must be a New Zealand national and carry on trade with the US that is both its principal trade (viz. >50% by volume) and substantial (meaning the continuous flow of sizable international trade items, involving numerous transactions over time).
What is the eligibility criteria for an E2 visa? The E2 Treaty Investor must be a New Zealand national and have invested (viz. placed capital, including funds and/or other assets, at risk in the commercial sense with the objective of generating a profit), or be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States and be seeking to enter the United States solely to develop and direct the investment enterprise.
How long can you stay on an E visa? The visa is granted for an initial two year period and is perpetually renewable for successive two year periods, provided the eligibility criteria is satisfied during the intervening period and at the time of each renewal.
Does it extend to employees? Yes, but they must be a New Zealand national, meet the definition of “employee” under the relevant law and either be engaging in duties of an executive or supervisory character, or if employed in a lesser capacity, have special qualifications.
Does it cover spouses and children? Yes, with the added benefit that spouses are permitted to work in the US for the duration of the underlying E visa.
Can an existing holder of a non-immigrant visa switch to an E1/E2 visa? Yes. A Kiwi national who is already in the US under another non-immigrant visa category may apply for a change of status to an E-visa. That application is at the discretion of the US Customs and Immigration Service.
What are the advantages of the E visa over other visa categories? Most other visas available to Kiwis are for a fixed period and have limited renewal rights. As indicated above, the E visa is perpetually renewable for periods of two years each, provided the criteria still applies at the time of renewal. The eligibility criteria may be easier to establish under this type of visa when compared to an H visa (which requires active US employer sponsorship), L visa (an inter-company transfer that requires an established US-based subsidiary and proof of necessary management or special operational skills) or O visa (that requires proof of exceptional talent in the arts, sciences etc).
Where can I obtain more information or guidance? If you need to know what type of goods are covered under the E1 Visa, how much capital is required under the E2 Visa or the application process and likely cost please contact Stu.