Foreign Owned US Subsidiaries Not Automatically Excluded From Paycheck Protection Program (PPP)

Quick Legal Insights

• The historical SBA affiliation rules do not necessarily apply to PPP and other CARES Act loan eligibility.
• A U.S. subsidiary of a foreign-owned company may qualify for CARES Act loan programs.
• Recently published SBA FAQs provide additional clarity that foreign-owned companies may want to consider, even if their loan application was already rejected.

Many U.S. subsidiaries of foreign parents have been asking whether they qualify for the PPP or other CARES Act loan programs. Like many other U.S. companies, they are experiencing the impacts of the COVID-19 pandemic.

There are two main questions:

1. Is a company that is wholly or majority-owned by a foreign entity automatically ineligible for the PPP?  No.

2. If the answer to the above question is “no,” do the historical SBA affiliation rules requiring the number of employees of the entire global group to be used when determining eligibility apply?

Historically, applications for SBA funding would preclude a foreign-owned entity.  Old rules do not necessarily apply.  es and entrepreneurs. The SBA issued an Interim Final Rule (IFR) communication to address some of the confusion around eligibility. That communication starts by saying:

This statement has led many to a conclusion consistent with past SBA practice that a foreign-owned company is not eligible. However, the IFR communication goes on to say:

The key word there is “or,” meaning a company does not have to qualify as a small business under historical SBA rules to be eligible for the PPP.

Additional FAQs released April 6 add clarity.

Because lenders, borrowers, and advisors continued to struggle to interpret this and other language governing the PPP, the SBA and Department of the Treasury issued a list of frequently asked questions (FAQs) on April 6, 2020. Question 3 of the FAQs asked if a business seeking a PPP loan has to qualify as a small business concern under the Small Business Act, to which the answer was:

This subsequent communications clarifies the answers to the above questions. Foreign-owned companies are not automatically excluded from being eligible for the PPP, and the employee-based size test under the affiliation rules applies only to employees whose principal place of residence is the United States.  It is still unclear how the term “principal place of residence is in the United States” will be applied to foreign citizens currently living and working in the U.S. and to U.S. citizens currently living and working outside the U.S.

It is possible your lender may have interpreted the IFR language differently or that your application may have been rejected before the April 6 FAQ guidance was issued. We encourage you to check with your lender when applying or re-engage with your lender if your application was improperly rejected. The FAQs do state that the borrower is responsible for determining the proper employee head count and that lenders do not need to make an independent determination. The U.S. government will not challenge lender PPP actions that conform to the guidance provided in the IFRs and FAQs.

The information coming from the SBA and Department of the Treasury continues to be fluid, and the interpretations by lenders, borrowers, and advisors can be inconsistent. However, the newly released clarifications align with the stated purpose and intent of the PPP, which is to preserve American jobs by providing relief to America’s small businesses.

Call us to help you through the business impact that COVID-19 brings.

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