Investment and Business Visas

We are regarded as the leading investment and business based visa service provider in New Zealand.  This is based on ability and the full value we bring to these transactions.  We don’t just advise on the visa requirements, we package the full value of our firm’s ability to advise on all associated legal aspects of investing and doing business here in a combined service offering that leads the market.

Investor visas

Our firm has developed a reputation both in the private and public sector as the leading counsel on investment/business based visa products. We have worked with both sectors in offshore markets to identify and provide our high value service product to high net worth investors and successful business operators from a range of international jurisdictions.

In addition to providing a full encompassing service that includes immigration, commercial, general property and overseas investment advice, we have a long and successful track record negotiating bespoke visa solutions with the New Zealand Government where standard requirements do not fit the need of the particular investor, and/or do not recognise the full value of the proposed investment transaction. We understand where the line is drawn between standard policies and where a tailored solution can be negotiated successfully to meet the objectives of both our client and the New Zealand Government.

We set out below a basic summary of the two current New Zealand investment based visa products for initial review.

Significant and detailed policy applies to each of these investor categories, although we list a few of the key aspects of the particular policies which should be understood as part of the first phase of due diligence.

Acceptable investment

The investments made under these categories are restricted by the New Zealand Government.  However, New Zealand holds one of the most flexible investment based visa policies in the world when comparing to New Zealand’s main investment based visa competitors (that include Australia).

New Zealand operates a policy that passively encourages more active (growth-orientated) investments, rather than proscribing them.  Therefore, the policy caters for investors who wish to receive relatively high yields from “safe” New Zealand Government Bonds, to those who wish to invest into residential/commercial property, other private equity and venture capital investments that hold more risk.

Many applicants who are new to New Zealand start with fairly conservative mixed bond/equity portfolios, before moving their investments into more growth-orientated areas once they have a better understanding of the New Zealand investment and business environment.

The definition applied by the New Zealand Government in relation to the term “acceptable investment” is an investment that:

• is capable of a commercial return under normal circumstances; and
• is not for the personal use of the applicant(s); and
• is invested in New Zealand in New Zealand currency; and
• is invested in lawful enterprises or managed funds that comply with all relevant laws in force in New Zealand; and
• has the potential to contribute to New Zealand’s economy;

and is invested in either one or more of the following:

• bonds issued by the New Zealand government or local authorities; or
• bonds issued by New Zealand firms traded on the New Zealand Debt Securities Market (NZDX); or
• bonds issued by New Zealand firms with at least a BBB- or equivalent rating from internationally recognised credit rating agencies (for example, Standard and Poor’s); or
• equity in New Zealand firms (public or private including managed funds and venture capital funds); or
• bonds issued by New Zealand registered banks; or
• equities in New Zealand registered banks; or
• residential property development(s) or
• commercial property; or
• bonds in finance companies; or
• eligible New Zealand venture capital funds; or
• philanthropic investment; or
• ‘angel funds or networks’ investments.

Note these further investment conditions in relation to investing in to residential property development:

• the residential property must be in the form of new developments on either new or existing sites; and
• the residential property(ies) cannot include renovation or extension to existing developments; and
• the new developments must have been approved and gained any required consents by any relevant regulatory authorities (including local authorities); and
• the purpose of the residential property investments must be to make a commercial return on the open market; and
• neither the family, relatives, nor anyone associated with the principal investor, may reside in the development.

Note these further investment conditions in relation to investing into commercial property:

• the property(ies) is not residential or for domestic use; and
• the property(ies) is used for business purposes, in that it is:
• capable of a commercial return; and
• not used for land banking ; and
• the purpose of the commercial property investments must be to make a commercial return on the open market; and
• neither the family, relatives, nor anyone associated with the main applicant may reside in the development; and
• if a new development, the property(ies) must have been approved and gained any required consents by any relevant regulatory authorities (including local authorities).

Finer investment criteria also apply regarding investment in finance companies, managed funds, venture capital funds and philanthropic investment.  We can advise accordingly if these are of interest.

As the reader will note there is a great degree of flexibility in acceptable investments; particularly so as investments can be liquidated and re-invested into alternative acceptable investments during the investment term at any time, provided the reinvestment transaction is completed within 30 days.

While the flexibility and range of acceptable investments is a stand out feature of New Zealand’s investment based visa policy, care is required for more active commercial/corporate based investments as they need to be structured in a way to maintain immigration compliance but at the same time work well in a customary commercial/corporate entity or trust structure.  Entity layering and corporate investment structures while common practice in New Zealand, do have some unique restrictions where a shareholder or trustee is also looking to claim that investment “personally” for the purposes of the visa application.  That is because the New Zealand immigration policy places emphasis on personal ownership of the investment funds, not control.  If you are looking to advance equity to a New Zealand firm, or wish to invest from a closely held family trust, seek advice on appropriate structuring well before the advance/investment.

Growth-orientated investments

As set out above the New Zealand Government encourages the establishment of growth-orientated investments under these policies.  Applicants who chose to do so will receive flexibility around meeting the physical presence requirements under both categories, and under the Investor 2 Category can also reduce the minimum investment as set out in the above table.  Here is a useful summary:

As to the definition, a growth-orientated investment is any acceptable investment under the policy other than:

• bonds (including convertible notes); and
• philanthropic investments.

It is therefore very standard for applicants to hold mixed bond/equity portfolios at the 25% ratio if the NZ$0.5 investment reduction is not required, or 50% if that is going to be the difference between qualifying for a visa, or not.

As a final comment, especially with portfolios that are mixed, is the basic investment concept that equity investments need to be held for 5-7 years to smooth out falls in the market over a short term.  Investors contemplating bond/equity mixes at these ratios for investment terms tied in with the immigration process (only) will need to understand that risk prior to investment if the intention is not to hold the equity investments post the term of the investment required under the visa policy concerned.

Physical presence requirement – tax connection

While the physical presence requirement does not appear onerous, and in relation to both categories will not automatically trigger tax residence status in New Zealand, it will be important for any individual who holds significant business assets and anticipates receiving overseas income (especially overseas income post the initial four year residency period) to receive very good taxation advice both in their current country of residence and New Zealand before submitting an application. Having an ability to legally manage tax liability including the New Zealand Inland Revenue “permanent place of abode” test will be important to a number of investors, particularly under the Investor Plus Category.

There are also limited opportunities to incorporate, change and/or establish pre-migration trusts before the migration move. Not receiving sound advice and assistance in this area before taking steps to travel to and live in New Zealand under these policies can lead to a significant tax burden, which in most instances could have been managed with sound Trust planning undertaken at an early stage in the immigration due diligence process.

Cap

There is no cap on the Investor Plus Category, although it should be noted that under the Investor 2 Category there is a cap of only 400 applications per annum. The Investor 2 Category operates on a points scoring system, so in instances where the Category is oversubscribed the minimum investment amount noted of NZ$3.0 million will need to be increased to score higher to increase the chance of being selected to allow formal application.  We can guide on where the point selection mark is sitting upon initial contact, as it varies from time to time.

Entrepreneur Work Visa and Entrepreneur Residence Category

The Entrepreneur Work Visa

We have assisted numerous migrants to secure an Entrepreneur Work Visa (EWV), and more importantly, transition those clients into a position to qualify for New Zealand residency under the Entrepreneur Residence Category.

Many migrants (and/or their initial immigration advisers) have made the mistake at the first stage of the process of concentrating on securing the initial EMV only. The focus point should be the requirements of the residency application at a later stage, and the contents of the EWV then backfilled to ensure eventual residence eligibility by the preparation of well thought through and conservative business plan at EWV stage; that should be prepared by a New Zealand based Chartered Accountant.

The EWV category allows an individual to either purchase or establish a new business in New Zealand, and operate their business successfully for a certain period of time before being able to qualify for New Zealand residence. In order to obtain a EWV, a number of requirements need to be proven by an applicant, including the following:

• They intend to invest a minimum amount of NZ$100,000 as capital investment, excluding working capital.
• They have been awarded a minimum of 120 points based on defined eligibility criteria (refer below).
• They hold an appropriate business plan specific to their proposed business/venture.
• They have obtained professional or occupational registration within New Zealand if that is required for lawful operation of their business.
• They meet the “fit and proper” person test.
• They have not been involved with bankruptcy or business failure within the five years proceeding the date that the application is made.
• They have not been involved in business fraud or financial impropriety at any stage.
• In addition to investment capital they are able to demonstrate they have sufficient funds to finance their business and provide for their maintenance and accommodation of all applicants included in the application, for the duration of the EWV (3 years).
• They have sufficient business experience relevant to their business proposal.
  They have a genuine intent to establish the business described in their business plan.
• They meet the English language requirement (e.g. an average (General) overall band score of 4.0 in an IELTS examination).
• The proposed business will not constitute an unacceptable risk to New Zealand laws or policies.

In relation to meeting the minimum point requirement of 120, the following table of points has been introduced by Immigration New Zealand, which in combination with the requirements set out above represent the full eligibility criteria. It is very important to note however that in addition to the basic narration below in terms of the points provided for each particular area, there are quite strict rules and regulations governing the eligibility of an applicant to claim the particular points specified. For example, in relation to ‘senior management experience related to business proposal’ that means senior in line management experience at a very high level in a company that employed at least 5 full time employees or had an annual turnover of at least NZ$1,000,000 per year. There are therefore fine requirements and detail that applies to each of the above and following requirements for eligibility, therefore this truly is a category where professional advice and assistance is highly recommended.

This is a strict policy that has significant caveats to the above eligibility criteria. In addition, which is also very important, is the stated objective of the policy, which simply put is to facilitate high growth businesses, and/or innovative businesses, and/or businesses with export potential. If a business transaction will meet the qualify points criteria, it can still be declined if it cannot meet one of the stated objectives of the policy, which as you will note is very subjective.

If you are contemplating submitting an application for an EWV seek professional advice from a New Zealand lawyer who is extensively experienced in these types of applications. A lot of our work in this area is trying to fix matters that have not been appropriately prepared or thought through at an early stage of the EWV process.

Entrepreneur Residence Category

There are two ways to qualify for residence under this Category. First, an applicant can demonstrate that they have established their business in line with their original business plan (including the claims made for benefit to New Zealand as stated in their plan), have operated the business for a minimum of two years, and the business is profitable as at the date the application is submitted or is capable of generating a profit within 12 months of submission of the application. In relation to profitability, this has been defined as a business demonstrating that the turnover of the business matches the turnover specified in the prior business plan, and the business is at least generating a minimum wage income to the main applicant specified in the prior application.

The second way to secure New Zealand residence under the ER Category is to demonstrate that an individual has established their plan in line with the original plan submitted in their prior application, they have operated the business in New Zealand for a period of 6 months, have invested at least NZ$500,000 into the business (business capital), and have created at least 3 on going and sustainable full time employment positions for New Zealand citizens or residents.

While the ER Category criteria seems relatively simple, the important point to make here is that if there is any inconsistency with the business that has eventuated as compared to the business plan specified to Immigration New Zealand to secure the prior EWV, then this can create quite significant eligibility issues to convert to New Zealand residence under the ER Category. It is important therefore for individuals to receive very good advice and assistance right from commencement of this process. That is because under the current residence category policy, applicants will be expected to demonstrate they have met the criteria set out in their initial business plan. Applicants or their advisers who have overstated the importance of their proposed business (to secure an EWV) could run the risk of the applicant not being able to demonstrate they have met their proposed business plan, and therefore not qualify for residency under the ER Category. It is very important therefore that business plans under EWV applications are not embellished to meet the policy criteria to secure the EWV, because such inflation of the benefits to New Zealand (for example) justifying the grant of the EWV may lead to a situation where the applicant is not able to actually convert to New Zealand residence later for failure to meet their promise, which is of course the main aim in this two stage process.