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THE LONG TERM BUSINESS VISA LETTER
We write to confirm the points which we discussed with you during our recent meeting with respect to your application for a Long Term Business Visa the said Category hereinafter referred to as the "LTBV").
We discussed carefully the specific requirements of the New Zealand Immigration Service's ("NZIS") LTBV policy, after having firstly eliminated all other possibly "easier" ways of obtaining permanent residence for you. In other words, before discussing with you the LTBV criteria we made sure that there was no way for you to obtain permanent residence under any of the other currently available residence categories.
We also explained to you that under current immigration policy an applicant who obtains an LTBV may become eligible at some future time, to apply for permanent residence in New Zealand under what is known as the Entrepreneur Category ("EC"). We also explained carefully to you the requirements of the EC policy so that you are fully aware and informed, as early as possible in your immigration voyage, not only of the LTBV requirements but the EC requirements, in anticipation of the fact that you will be desirous of obtaining permanent residence in New Zealand (as soon as possible) under the EC, the "natural successor" to an LTBV application.
At our initial meeting we discussed our schedule of fees with you in connection with an LTBV application in a situation such as yours, where the applicant has specifically indicated to us (as you have) that your long range intention is to obtain residence in New Zealand, and if possible under the EC.
We either enclose with this letter or will shortly send separately to you the following:
Original "Terms of Engagement" document together with a simple photocopy thereof. We would be grateful if you could please sign the original document and return it to us to confirm that you have read and understood our general Terms of Engagement. Please retain the photocopy for yourself.
One of our LTBV/EC schedule of fees, a copy of which we already handed to you at our first meeting.
Our initial bill of costs and disbursements to cover the first stage of our legal fees and disbursements in connection with your LTBV application.
The next stage in your application procedure will be for us to have a "documents/timetabling" meeting, during which we will provide you with a comprehensive Checklist of Documents for a LTBV application and go through that checklist with you very carefully. At that meeting we will also then work out a timetable setting out the anticipated dates by which various steps/documents in connection with your application will be taken/available.
We would now like to reiterate the specific points, which we have already discussed with you:
We explained to you that until such time as you actually receive from the NZIS your Long Term Business Visa (and your dependants included in your application receive their "matching" visas/permits) you should not take any irreversible steps, or put in place any plans or actions which may result in financial or other loss to you in the event your LTBV application is not approved. Similarly, we have advised you that insofar as your business plans for New Zealand are concerned, you should not take any active steps to actually begin a business or purchase a business or lease premises or do anything else which is either irreversible or could cause you financial or other loss in the event your LTBV application is declined.
We have explained to you that New Zealand's tax system is one which taxes its tax residents on their world wide income so that if, following your taking up of residence in New Zealand, you will continue to have income from sources outside of New Zealand you should, as a first step before filing your LTBV or residence application, consult a good international tax accountant for advice on the exact effect on your tax situation of you becoming a New Zealand resident and for advice on steps which you may be able to take, before becoming a New Zealand tax resident, to minimise your tax liability in New Zealand and in any overseas country.
We explained to you that the Business Plan which Kundig Associates and the chartered accountants will be preparing for you will be prepared for immigration purposes and for meeting the specific requirements of the LTBV policy. We have explained to you that even strict compliance by you with the content and nature of the business plan does not necessarily ensure that your actual business will be successful.
We have explained to you that no one, including ourselves or the chartered accountants, can actually provide you with a 100% guarantee that a future residence application which you may make under the EC will be approved simply because you have successfully achieved the milestones and goals set out in the business plan submitted with your LTBV application (although that would be a reasonable expectation, one that we ourselves hold).
We have explained to you that one way to increase your chances of successfully applying for residence in the future under the EC is for you to agree to have regular 6 monthly accounting/immigration reviews of the business which may actually result from the Business Plan originally submitted to the NZIS with your LTBV application, to ensure that you are and remain "on track" to complying with the EC residence requirements. We have given you our strong recommendation that you agree to this review process for the foregoing reason. We have also explained to you that we believe this is also of course an excellent idea anyway, from the business perspective.
We have explained to you that your failure to agree to undertake the regular 6 monthly accounting/immigration reviews which we recommend for our LTBV clients (who are interested in obtaining residence in the future, under the EC) may directly diminish your chances of qualifying for residence in the future under the EC if in the intervening period between you obtaining the LTBV and you being eligible to apply for residence under the EC you have failed to comply, or to continue to comply with the specific requirements of the EC, for the requisite amount of time.
We have explained to you that obtaining the LTBV is only the first stage in what we see as a three-stage process of obtaining permanent residence under the "linked" LTBV-EC categories. The second and equally important stage in this process starts from the date when you actually begin doing business as described in your LTBV Business Plan (whenever that date may occur during the three year duration of your LTBV) and lasts for at least two years from that date. We believe that the second two-year stage is of paramount importance as it is the basis upon which your eligibility for obtaining residence in New Zealand under the EC will be determined, at a future date. In other words this two year stage 2 period is the "qualifying period" during which the performance of your business, and more specifically the economic gains you derive from it, are critical and will be carefully considered by the NZIS when assessing your EC application at the conclusion of the two year "qualifying" period.
We have explained to you that provided therefore that you have obtained an LTBV (stage 1) and your business' stage 2 periodic reviews have indicated that your management of the business and the economic gain you are deriving therefrom are "on track" we are confident that your EC application (stage 3) should be able to meet standard EC approval criteria. Those specific criteria are:
a. The business that you establish after receiving your LTBV is consistent with the business plan that you submitted to the NZIS in order to obtain your LTBV (i.e. you have not established a different business than the one you told NZIS you would be establishing).
b. you maintain the minimum required percentage share in your business (if you bought a share in a New Zealand business as part of your business plan).
c. you ensure that during the two-year qualifying period you remain lawfully and actively involved in New Zealand in the management and operation of your business and if you as the principal applicant spend more than four weeks per year outside of New Zealand you are able to demonstrate to the NZIS that the "extra" time outside of New Zealand has been spent on business matters for your New Zealand business.
d. You ensure that your business "promotes New Zealand's economic growth" by (for example):
- introducing new, or enhancing existing, technology, management or technical skills, or
- introducing new, or enhancing existing, products or services; or
- creating new, or expanding existing, export markets; or
- creating employment (other than for the principal applicant*); or
- revitalising an existing New Zealand business; and
- the business is "trading profitably" on the date the application is lodged or a business immigration specialist is satisfied that it clearly has the potential to become profitable within the following 12 months.
e. ensure that all eventual EC applicants in your family maintain good health.
f. ensure that all eventual EC applicants in your family maintain good character.
g. ensure that no eventual EC applicant children of yours will be 20 of age or older by the time you are ready to file your EC residence application.
h. You ensure that neither you nor any of your dependants apply for "welfare assistance" (i.e., Government financial help" at any time during your LTBV period.
i. you as the principal applicant are able to comply with the English language standard (IELTS average score of 5.0) and you are prepared to pay the cost of purchasing pre-paid ESOL tuition for each member of your family who is included in your residence application and who is required to meet the English language standard and who is not able to do so.
Provided that you are able to comply with the requirements which we have set out above, and the New Zealand Government does not change the EC rules, then we can give you an assurance that we can not foresee at this stage any reason why you and your dependants would not qualify for residence under the EC.
Yours faithfully
KUNDIG ASSOCIATES
P.W. Kundig
Barrister & Solicitor
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