Effective immediately, New Zealand citizens are now eligible to apply for E-1/E-2 Treaty Trader/Investor visas. Individual investors who make a substantial investment usually in the amount of about $150,000 into a U.S. business may apply for an E-2 visa to direct and develop the U.S. operations. Additionally, New Zealand citizens may be granted E-2 visas to work as executives, managers, or essential employees of U.S. businesses that have received a substantial investment from New Zealand.
New Zealand citizens who meet these criteria can now be issued five-year, renewable, multiple entry E-1/E-2 visas to conduct business in the U.S. Spouses and children under age 21 years may be issued derivative visas for the same duration and spouses can obtain an unrestricted work permit.
Five Requirements for an E-1 Treaty Trader Visa
- Activities constitute substantial international trade. “Substantial” means trade must be a continuous flow that should involve numerous transactions over time. The focus is primarily on the volume of trade conducted but the monetary value of the transactions is also relevant. Greater weight is given to cases involving more numerous transactions of larger value.
- Applicant must be coming to the United States solely to engage in substantial trade. This does not prohibit an ancillary or coincidental purpose of travel:
- Trade is principally between the United States and the treaty country. This rule requires that over 50 percent of the total volume of the international trade conducted by the treaty trader regardless of location must be between the United States and the treaty country of the alien’s nationality. The remainder of the trade in which the alien is engaged may be international trade with other countries or domestic trade;
- Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States; and
- Applicant intends to depart the United States when the E-1 status terminates.
Seven Requirements for an E-2 Treaty Investor
- Applicant has invested, and the investment is irrevocably committed;
- Enterprise is a real and operating commercial enterprise and is producing some service or commodity. It cannot be a speculative investment held for potential; appreciation in value, such as undeveloped land or stocks held;
- Applicant’s investment is substantial. There are no bright line percentages that exist in order for an investment to be considered substantial. Thus, investments constituting 100 percent of the total cost would normally qualify for a business requiring a startup cost of $100,000. At the other extreme, an investment of $10 million in a $100 million business may be considered substantial, based on the sheer magnitude of the investment itself.
- Investment must be more than a marginal one solely for earning a living. A marginal enterprise is an enterprise that does not have the present or future capacity to generate enough income to provide more than a minimal living for the treaty investor and his or her family. If at the end of five years the company is not making considerable profits, an extension may be difficult. .
- Applicant is in a position to “develop and direct” the enterprise. The type of enterprise being sought will determine how this requirement is applied. For example, an equal share of the investment in a joint venture or an equal partnership of two parties, generally gives controlling interest, if the joint venture and partner each retain full management rights and responsibilities. In instances in which a sole proprietor or an individual who is a majority owner wishes to enter the United States as an “investor,” or send an employee to the United States as his and/or her personal employee, or as an employee of the U.S. enterprise, the owner must demonstrate that he or she personally develops and directs the enterprise.
- Applicant, if an employee, is destined to an executive/supervisory position or possesses skills essential to the firm’s operations in the United States. Here the U.S. wants to see the applicant has the skills to perform the job successfully; and
- Applicant intends to depart the United States when the E-2 status terminates.
For more information about the benefits New Zealand citizens and companies can enjoy with an E-1 or E-2 visa, please see our previous blog. If you would like to discuss whether this is a viable immigration option, please contact an attorney at Wolfsdorf Rosenthal LLP.