A residence visa holder cannot be issued a permanent residence visa until the Section 49A condition on their visa has been uplifted. A section 49A condition is imposed on your residence visa if you have applied under the previous Entrepreneur Plus Category and the Current Entrepreneur (Fast Track) Category. When applying to uplift the section 49A condition, the following should be considered:
1) When does the two year period start and when can I apply to uplift the condition?
Usually the Business Migration Branch initial approval letter will state the qualification date for when you can request for the condition to be uplifted. If it is not outlined in the letter, then the qualification date will be two years from the date in which the applicant has utilised the nominated investment funds of $500,000.00 and created the three jobs. We note that the two year period includes any time where a Long Term Business Visa or Entrepreneur Work Visa has been held by the applicant.
2) What supporting documents do you need to provide?
In general, you will need the following:
a) Financial Statements for two years;
b) GST returns for two years;
c) Employer Monthly schedules for two years;
d) Bank Statements for two years;
e) Lease Agreement (if applicable);
f) Supply and any commercial agreement(s) (if applicable);
g) Marketing documents including websites, brochures etc;
i) Product information (if applicable);
j) Employment Agreement(s) and passports of your employee(s).
3) Have you been “self-employed” as per the immigration instruction?
The definition of “self-employment” requires active involvement in the business even though the residence visa has been granted. This means that the applicant has to spend sufficient time in New Zealand. The Immigration Instructions are silent on the exact period of stay required during the two year period. The Immigration Protection Tribunal has defined the requirement as having the centre of the applicant’s domestic and business life in New Zealand for at least two years.
Time spent overseas will not necessary disqualify the applicant (for example, when the time spent is connected to the New Zealand Business), nor will a short duration overseas for non-New Zealand business purposes disqualify an applicant automatically.
We note that there is an element of profitability that must be met as part of this definition. Profitability needs to be explored before applying to uplift the condition.
4) Have you maintained three jobs for two years?
Over a two year period, it is understandable if there is a change in staff. There may be periods of when there are less than three employees (such as when the applicant is in the process of hiring replacement staff). This period will not be an issue provided that it is not for a significant period of time and/or there is a reasonable explanation. It is important to maintain and keep records of all previous employees including their passports and employment agreements to ensure compliance with the condition.
We have taken care to ensure that the information given is accurate, however it is intended for general guidance only and should not be relied upon in individual cases. Professional advice should be sought before any decision or action is taken as Immigration New Zealand’s Instructions change on a regular basis.