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Starting June 10, E-1 treaty trader and E-2 treaty investor visa status will be available to qualifying New Zealand employers and nationals.

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Starting June 10, 2019, eligible New Zealand companies and nationals will be able to apply for E-1 treaty trader and E-2 treaty investor temporary visa status.  The Embassy in New Zealand announced the upcoming availability of the E visa categories this week, following the enactment of the Knowledgeable Innovators and Worthy Investors (KIWI) Act, which was signed by President Trump on August 1, 2018.  

E-1/E-2 visa eligibility generally requires:

• A treaty between the U.S. and a foreign country;
• That majority ownership or control of the trading/investing company is held by treaty country nationals; and
• That each employee or principal of the company seeking E status is a treaty country national.

The E visa option can be used by many different types and sizes of companies, as well as by private individuals.  E-1 treaty trader status would permit New Zealand companies who conduct substantial trade with the U.S. to transfer managerial and essential skill employees here. E-2 treaty investor status would permit New Zealand nationals or employers to make a substantial, active investment in a U.S. business and to transfer employees in an supervisory or essential capacity related to the investment.

The E visa category has some flexibilities not available in other visa statuses. There is no maximum limit on time spent in E-1/E-2 status, but holders of the visa must intend to depart at the end of their authorized stay. Unlike some other visa options, dependent E visa spouses are permitted to apply for work authorization. t is anticipated that USCIS will soon announce its upcoming acceptance of petitions for New Zealand nationals seeking to change to E-1 or E-2 status. In April, the United States began implementing a U.S.-Israel treaty that made E-2 investor visas available to Israeli nationals, and created a reciprocal status for U.S. citizens in Israel.

What it means for New Zealand nationals and employers

New visa options for New Zealand employers and individuals are welcome at a time of generally restrictive U.S. visa policy. Eligibility for treaty trader or investor status can be complex and initial applications can be document- and time-intensive. New Zealand employers and individuals seeking to engage in trade or investment in the U.S. should contact our office to assess eligibility.

Thursday, May 2, 2019

Pursuant to a recent announcement by the U.S. Embassy in Israel, E-2 Investor visas will be available to Israeli citizens starting May 1, 2019.  While the bill granting Israeli citizens eligibility for the United States E-2 Treaty Investor visa was signed into law in 2012, the availability of visas was delayed by lengthy negotiations over the final terms of the reciprocal agreement between Israel and the United States.  Fortunately, the terms of the reciprocal agreement between the two countries have now been finalized, allowing for the issuance of E-2 investor visas to Israel citizens starting in May.

The E-2 investor visa is available to citizens of qualifying countries who are actively engaged in the development and direction of a United States enterprise. In order to qualify for the E-2 visa, the foreign investor must have already invested, or be in the process of investing, a substantial amount of capital into the United States company. Although the list of qualifying nations for the E-2 visa includes over 70 countries, that list did not include Israel – until now.

THE E-2 TREATY INVESTOR VISA

The E-2 visa allows a foreign investor, as well as foreign managerial, executive and essential employees of the company, to temporarily live and work in the United States in close proximity to the investment. The initial period of stay for E-2 visa holders depends largely on the reciprocal agreement between the United States and the foreign country, but may be issued for up to 5 years, and may be extended thereafter. Additionally, spouses and unmarried children under 21 years of age may join E-2 visa holders in the United States in derivative status, regardless of their nationality. Spouses of E visa holders are also eligible to apply for employment authorization in the United States and children are permitted to attend school.

There are several important criteria that must be met before the E-2 visa will be issued to a foreign investor and his or her employees. First, the qualifying investment must be “substantial.” This means that the investment must be sufficient to create an active business in the United States. The applicant for the visa must establish that the United States company is or will be financially capable of surviving in the industry in which it operates, and that it will create U.S. jobs for U.S. employees. Second, the investment cannot be “marginal.” This means that the investment cannot be a minimal investment made merely to support only the investor’s immediate family. Finally, the investment cannot be speculative or idle, but must be made into a new enterprise or the purchase of an existing enterprise. A significant percentage of the investment must be irrevocably committed to the development of the enterprise by the time that the E-2 visa application is submitted.

Nationality is also a critical element of E-2 visa eligibility. The investment must be made, and controlled by Israeli citizens. A partial investment in an ongoing enterprise in the United States may not qualify if majority owners of the company are not citizens of Israel. In setting these criteria, the U.S. government aims to ensure that the investments associated with each new Israeli E-2 visa are likely to become direct, significant contributions to the development of a wide range of United States markets.

THE MUTUAL BENEFITS TO ISRAEL AND THE UNITED STATES

The addition of Israel to the list of qualifying E-2 countries serves to greatly enhance the flow of Israeli innovation and investment into the United States, while providing Israeli-owned businesses and investors access to U.S. industries and markets. The United States also hopes to spawn further creative thinking and collaboration between the two nations, in an effort to stimulate both economies and foster critical information sharing.

For many years, Israel has been recognized throughout the world for its excellent service sector, as well as a world center for diamond cutting, polishing, and trade. In recent years however, Israel has also emerged as a world leader in software development, “high-technology electronic and biomedical equipment, metal products, processed foods, chemicals, and transport equipment.”^[1]The U.S. State Department reports the following with respect to Israel’s expanding high-tech industry:

Israeli companies, particularly in the high-tech area, have in the past enjoyed considerable success raising money on Wall Street and other world financial markets; Israel has approximately the same number of companies listed on NASDAQ as the next three countries (Canada, Japan, and Ireland) combined. . . . Almost 45% of Israel’s exports are high tech. Most leading players, including Intel, Motorola, IBM, and Cisco have a presence in Israel.

CONCLUSION

It is critical that the temporary E-2 visa not be confused with the immigrant visa program. The E-2 visa is a temporary U.S. work visa, and is not meant to be permanent. An application for an “immigrant visa” is an application for a permanent resident status, and has been the subject of significant attention in the past several years.

Effective May 1, 2019, E-2 visa applications may be filed for citizens of Israel who are principal investors, company executives and managers, and other essential company personnel, but require specific documentation and a keen eye for detail. For these reasons, Israeli nationals who plan to invest in, and establish businesses in the United States are encouraged to seek counsel from qualified and experienced U.S. immigration attorneys who are prepared to assist with the preparation and filing of E-2 visa applications.

Certain Israeli nationals who are lawfully present in the United States will soon be able to request a change of status to the E-2 treaty investor classification. Beginning May 1, eligible Israeli nationals already in the United States in a lawful nonimmigrant status can file Form I-129, Petition for a Nonimmigrant Worker, to request a change of status to E-2 classification, or a qualifying employer can file the petition on their behalf. Spouses and unmarried children under 21 years of age of treaty investors and employees who are already in the United States may also seek to change status to E-2 classification as dependents by filing Form I-539, Application to Extend/Change Nonimmigrant Status.

The E-2 nonimmigrant classification allows citizens of countries with which the United States has a treaty of commerce and navigation to be admitted to the United States when they are investing substantial capital in a U.S. business. E-2 status is also available to certain employees of such investors or qualifying organizations.

For more on the E-2 classification, see our E-2 Treaty Investors e-book.

Treaty Investor Visa (E-2)

The U.S. Embassy has the pleasure to announce that a treaty investor agreement (E2 Visa) has been signed between the United States and Israel and will become effective as of May 1, 2019. Pursuant to the treaty, Israeli citizens will be able to apply for an E2 visa at the U.S. Embassy Branch Office Tel Aviv.