“Sweet As!” New Zealand Investors and Traders Have a New Path to Doing Business in the United States

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On August 1, 2018, the KIWI (Knowledgeable Innovators and Worthy Investors) Act became public law in the United States. This law makes New Zealand nationals eligible to enter the United States as non-immigrant traders and investors as provided under the Immigration and Nationality Act. Effective June 10, 2019, New Zealand citizens are now eligible to apply for E-1 (Treaty Trader) and E-2 (Treaty Investor) non-immigrant visas to the United States.

Requirements for E-1 Visa (Treaty Traders)

  • The trading company or firm for which the applicant is seeking admission into the United States must have the nationality of the treaty company;

This means that the company through which the applicant is applying for the E-1 visa must have at least 50% ownership by a New Zealand citizen. It does not necessarily mean that the entity must be incorporated in New Zealand.

  • The international trade must be “substantial”;

This requirement refers to trade flow between the United States and New Zealand through the applicant’s company. The trade cannot be theoretical in nature and must already exist at the time of filing the E-1 visa. Whether the trade is “substantial” will vary case-by-case and can be determined by an immigration attorney experienced in handling E visas.

  • The trade of the enterprise must be “principally” between the United States and New Zealand;

This means that at least 50% of the company’s total trade is with the United States. It does not mean that the company cannot trade with other countries.

  • The applicant must be employed in a supervisory or executive capacity, or must possess highly specialized skills essential to the efficient operation of the firm;

If the applicant is in a supervisory or executive capacity, this means that the applicant is running the company (or certain aspects within the company), and doing the things essential to the operation of the business. If the applicant is a person “possessing highly specialized skills,” it must be shown that the person is essential to the success of the business.

  • The applicant must intend to depart the United States when their E-1 status ends.

This is a temporary non-immigrant visa, meaning that the applicant must not intend to immigrate permanently to the United States to become a U.S. citizen or permanent resident at the time of filing. If the business relationship or trade relationship no longer exists, the applicant must be willing and intend to depart the United States upon the cessation of said relationship.

Requirements for E-2 Visa (Treaty Investors)

  • The investor—either a person, partnership, or corporate entity—must have the citizenship of the treaty country;

As with the E-1 visa, the investor applying for the E-2 visa must be a citizen of New Zealand. Further, the primary investor must be a national of New Zealand and own at least 50% of the operating interest in the entity making the investment.

  • The investment must be “substantial” and the funds have to be “irrevocably” committed;

“Irrevocably committed” means that the funds in question must be at risk at the time of the filing. There must not be anything else the funds will be used for, but it also does not necessarily mean the investment has already been paid out (e.g., putting funds into an escrow upon satisfaction of some term). Whether the investment is “substantial” enough will vary case-by-case, and can be determined by an immigration attorney in the U.S. with experience handling E-2 visas.

  • The investment must be in a “real operating enterprise”;

The investment cannot be merely theoretical. The applicant must be able to show that the investment will involve real people and employees, real property, and/or real products.

  • The investment must be more than “marginal”;

The applicant must show that the investment, regardless of how substantial, will be used for more than simply taking care of the applicant and his or her family. This can be reflected in a business plan showing that the investment will go toward employing multiple American workers in a specified period of time. It is important, however, not to over-promise on this requirement.

  • The investor must have control of the funds, and the investment must be at risk in a commercial sense;

The applicant must have full control over the money that is being invested. For example, if the funds are received via a bank loan, the funds should be listed in the applicant’s name.

  • The investor must be coming to the United States to develop and direct the enterprise;

If the investor is not the person who will be developing and directing the enterprise in the United States, he or she may be found ineligible for the E-2 visa.

  • The applicant must intend to depart the United States when their E-2 status ends.

As with the E-1 visa, this is a temporary non-immigrant visa, meaning that the applicant must not intend to immigrate permanently to the United States to become a U.S. citizen or permanent resident at the time of filing. If the business relationship or trade relationship no longer exists, the applicant must be willing and intend to depart the United States upon the cessation of said relationship.

Application Process for E-1 or E-2 Visa

To apply for a “Treaty Visa,” from the United States, we recommend first consulting with experienced immigration attorneys in the United States to help you compile the best information and evidence possible to help you satisfy scrutiny from the Department of State. After the requisite evidence is gathered and prepared, an application will be made with the New Zealand consulate, which requires an application fee. With the application fee, the applicant will be able to request an appointment. Within three business days of completing the application form, paying the filing fee, and requesting the consular appointment, the applicant must send the package of pre-prepared information to the embassy/consulate for a determination of eligibility. After the embassy/consulate has evaluated the application, they will contact the applicant to schedule an interview. When arriving to the consulate in Auckland, the applicant and dependents over the age of 14 should appear with their passports. The interview will consist of questions confirming intent in filing the application and clarifying the business plan. If approved, the visa will be issued for a period of 5 years. The visa will thereafter need to be renewed every 5 years. Upon renewal, the consulate will once again examine the visa for continuing eligibility. As this visa has only recently become available to New Zealanders, we do not yet know how long processing will take.

If you are a New Zealand citizen interested in pursuing this option for immigration into the United States, please contact us at Kuck | Baxter Immigration LLC for an initial consultation. If you are a citizen of another country wondering if you can enjoy the benefits of an E-visa, citizens of approximately 80 other countries are potentially eligible to pursue a Treaty Visa. Visit the Department of State website to determine if your country is eligible, then contact Kuck | Baxter Immigration LLC for more information.

 

 

About the Author

Phil Kuck

Associate Attorney

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