September 27, 2022

Volume XII, Number 270


September 26, 2022

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E-1/E-2 Treaty Visas Option for New Zealanders

The U.S. Ambassador to New Zealand, Scott P. Brown, has announced that eligible New Zealand nationals may apply for E-1/E-2 Treaty Investor Visas:

“We’ve listened. And as of June 10, New Zealand business owners and New Zealand citizens essential to those companies are going to be able to reside and work in the United States like never before.”

The E-1 visa is for Treaty Traders and allows a national of a treaty country (or countries that have otherwise been approved for this status) to be admitted to the U.S. to engage in international trade. An E-2 visa, for Treaty Investors, allows a national of a designated country to be admitted to the U.S. when investing a substantial amount of capital in a U.S. business. Certain employees of such a person or qualifying organization also may be eligible for this classification if they are nationals of the same country.

E-1/E-2 status for New Zealanders has been in the works for some time. On August 3, 2018, President Donald Trump signed the KIWI (“Knowledgeable Innovators and Worthy Investors”) Act that would add New Zealand to the list of 80-plus countries that may apply for E-1/E-2 status, assuming New Zealand provided reciprocal treatment for United States nationals. The idea is that this will make it easier for New Zealanders to do business in the United States, easier for United States nationals to do business in New Zealand, and will be economically advantageous for both countries.

At a time when H-1B visas can be hard to come by, joining the group of countries that have another option is particularly beneficial. E-1/E-2 nonimmigrant visas are generally open to nationals of countries that have a treaty of commerce and navigation or similar agreement with the U.S. In the case of New Zealand, however, with the KIWI Act, Congress has opened the door to New Zealand nationals.

The benefits of E-1/E-2 include:

  • E visas may be applied for directly at a U.S. embassy or consulate abroad – no USCIS petition is required.
  • If an individual is already in the U.S. in another status and does not wish to travel abroad, a change of status may be filed with USCIS. Applying at a consulate or embassy abroad, however, is usually preferred as it results in the issuance of a visa stamp, generally with a validity of five years, as contrasted to the two-year duration of USCIS approval.
  • Although the original registration for E-1 or E-2 status may require extensive documentation, a company registered at the consulate as eligible may transfer executives, managers, or specialized-knowledge professionals easily.
  • Once in the U.S., spouses of E-1/E-2 professionals can apply for work authorization.
  • E visas are nonimmigrant visas, but may be extended indefinitely (although children will age-out at 21).

While an individual may remain in the U.S. in E-1/E-2 status for as long as the person remains eligible for that status, the visa is not a “dual intent” visa. There is no direct path to a green card. Applying for permanent residence from E-1/E-2 status is possible, but it may present complicated intent or tax issues.

Jackson Lewis P.C. © 2022National Law Review, Volume IX, Number 170

About this Author

William J. Manning, Jackson Lewis, Employment Immigration Lawyer, Visa Strategies Attorney

William J. Manning is a Principal in the White Plains, New York, office of Jackson Lewis P.C. He has been advising both U.S. and foreign employers with regard to immigration matters since 1986. Mr. Manning established the Jackson Lewis Immigration practice in 1998.

Mr. Manning’s practice covers all aspects of employment-based immigration into the United States. He works closely with employers to structure their immigration programs and develop long-term visa strategies for key employees. He has extensive experience in...