United States: Doing Business In The USA: Regulation Of Foreign Investment

The United States has a long history of welcoming investment from abroad—both direct investments (that is, investment in which the foreign investors control or participate significantly in the operations of the U.S. enterprise), and portfolio investments (loans or portfolio equity that do not give the foreign investor significant participation in the operations of the U.S. enterprise). This attitude is reflected in the relative absence of restrictions compared to those imposed by other countries.

A non-U.S. person can usually establish a U.S. subsidiary or branch without substantial control or review by any federal, state or local governmental authority in the U.S. There are only a few exceptions, discussed in Section 2 below, where limits are imposed on foreign investment in certain sensitive areas and highly regulated businesses.

Foreign investors in the U.S. also enjoy the same flexibility in financial arrangements as is accorded to U.S. nationals:

• There is no need to obtain formal approval from financial authorities to set up a company in the U.S.

• Foreign exchange controls are generally absent.

• The non-U.S. investor is generally free to make any desired arrangements for financing the U.S. enterprise. There are no requirements to register the investment of foreign equity capital or loans.

• Interest and royalty rates charged to the U.S. company may be freely established, although they will be scrutinized by U.S. tax authorities. There are no registration requirements as to transfer of technology agreements.

• The foreign-owned U.S. enterprise may freely remit U.S. profits abroad, and its owners may freely repatriate their equity or debt capital investment. Dividends, interest, royalties and service fees may also be freely repatriated, although such payments may be subject to U.S. withholding tax of 30% or a lower treaty rate, if applicable. (See "Tax Consequences of Doing Business in the U.S., page 137.)

There is no general system of licensing foreign investments in the U.S. (However, a few foreign countries, described below, are subject to specific licensing requirements.)

Foreign investment may qualify for various federal, state and local investment incentive programs. At the federal level, most of these aim to promote exports of U.S.-manufactured goods, such as the programs of the U.S. Export-Import Bank, Overseas Private Investment Corporation and Agency for International Development, and the Trade and Development Program. There are no special federal tax incentives specifically designed to attract foreign investors, but some of the federal tax laws are favorable to non-U.S. based persons, particularly where a tax treaty is involved. (See "Tax Consequences of Doing Business in the U.S., page 137.)

Some state and local governments, on the other hand, seek to encourage foreign investment to improve the local economic environment through increased jobs, a larger tax base, and reduced social welfare costs. These incentives can take the form of tax relief as well as grants, direct loans, and guarantees of loans to private lending institutions for projects in economically lagging areas.

Although the balance of this chapter highlights various restrictions and regulation of foreign investment in the U.S. by the federal and state governments, these should be viewed as exceptions to the general overriding rule that foreign investment has traditionally been welcome in the U.S.

Federal laws expressly restrict the percentage of foreign ownership in certain sectors considered particularly sensitive. These include, for example, radio and television broadcasting, domestic air and marine transportation and fishing.

In addition, certain highly regulated industries, such as banking, insurance, electric and gas, and communications, are subject to discretionary governmental action, particularly on the state level, and foreign investment therein is often subject to a higher level of scrutiny.

Although some restrictions may be avoided by incorporating a U.S. subsidiary, usually the laws will also look to the nationality of the owners or the nationality of management, or both, in order to determine whether even a U.S. subsidiary may be utilized for the investment.

Domestic air transport of passengers and freight in the U.S. is limited to U.S.-registered aircraft. These aircraft may only be registered by U.S. citizens or permanent residents, partnerships in which all partners are U.S. citizens, or companies organized in the U.S. in which the president and 2/3 of the directors and managing officers are U.S. citizens and 75% of the capital stock is held or controlled by U.S. citizens. Foreign corporations lawfully organized and doing business under the laws of the U.S. or any state thereof may register aircraft if such aircraft is based and primarily used in the U.S. In addition, a certificate of public convenience and necessity is required for operation as a domestic carrier, and such certificates are limited by statute to U.S. citizens. Moreover, the approval of the U.S. Department of Transportation is required for all mergers with, or acquisitions of control over, U.S. air carriers. This, in effect, permits such Department to limit acquisitions to entities that meet the above-mentioned U.S. citizenship requirements.

Both the federal government and the states highly regulate banking, and their impact on foreign banks is particularly complex. In general, several legal forms are available to foreign banks, and a government charter or license is required. A banking charter may be obtained from either the U.S. Comptroller of the Currency for a national bank, or from the pertinent state banking supervisor for a state bank. Before obtaining such a charter, a foreign bank must receive U.S. Federal Reserve Board approval to become a bank holding company. All directors of a national bank must ordinarily be U.S. citizens, although the Comptroller has the authority to waive this requirement as to a minority of the directors when the bank is affiliated with a foreign bank. A similar requirement often applies on the state level.

An alternative to a chartered bank is to establish a so-called "Edge" banking corporation. Such a corporation is separately chartered (either by the Federal Reserve Board or by a state in combination with an agreement with the Federal Reserve Board) to engage in specified banking activities of an international nature only.

Yet another alternative is to operate through a branch or agency. Each is an unincorporated entity licensed to perform specifically limited banking services. In general, a branch of a foreign bank is authorized to accept deposits from any source, while an agency is limited to accepting certain types of non-deposit credit balances from non-U.S. nationals.

Regardless of its form, a foreign-affiliated banking operation will be subject to extensive regulation and supervision. The initial application for a charter or license requires extensive disclosure of financial information, and frequent audits and reports will subsequently be required on an ongoing basis.

All radio and TV broadcasting in the U.S. requires a license from the Federal Communications Commission (FCC). The Federal Communications Act of 1934 prohibits the granting or transfer of such licenses to any foreign government or its agent, a foreign individual or entity, or to any U.S. corporation whose capital stock may be voted or is controlled more than 20% by foreign persons. However, under the Telecommunications Act of 1996, corporations or partnerships will not be denied licenses just because they have alien officers or directors. The FCC has authority to review mergers between telecommunications common carriers under a public interest standard in which foreign ownership or control may be a factor. State public service commissions also regulate telecommunications mergers, acquisitions, and financing transactions in intrastate communications services; such regulatory authority may impact foreign investors through certification procedures for market entry and reporting requirements for changes of control of telecommunications companies licensed therein.

The Defense Industrial Security Program is designed to promote national security by preventing companies under excessive foreign control from engaging in classified work. See Section 4 below.

Insurance companies in the U.S. are regulated heavily on the state level. This includes extensive financial disclosure in establishing or acquiring an insurance business in a state as well as approval from the state insurance commissioner. Some states have U.S. citizenship and residency requirements for directors of insurance companies. Despite this regulation, there are many foreign insurers operating throughout the U.S.

Coastal and freshwater shipping in the U.S. is restricted (with limited exceptions) to vessels built and registered in the U.S. and owned by U.S. persons. For this purpose a corporation qualifies as a U.S. person only if it is organized under U.S. law; its chief executive officer, chairman of the board and a majority of its U.S. directors are U.S. citizens; and at least 75% of its shares are owned or controlled by U.S. citizens. Similar restrictions apply with respect to vessels engaged in towing or salvaging operations in the U.S., and to fishing vessels operating in U.S. territorial waters. Generally, only U.S. vessels are permitted to fish in U.S. waters or bring fish caught in non-U.S. waters into U.S. ports, except where applicable treaties provide otherwise.

Energy resources generally are regulated by both state and federal laws. The federal Mineral Lands Leasing Act allows mineral lands owned by the federal government to be leased only to U.S. citizens and to corporations organized in the U.S. The latter may be foreign-owned, but in general a greater than 10% foreign ownership is allowed only to the extent the foreign owner’s country grants similar rights to U.S. citizens—that is, reciprocity is required. The Secretary of the Interior determines what countries do not provide reciprocal treatment. Similarly, the Mineral Leasing Act of 1920, which governs rights to mine coal, oil, oil shale and natural gas on land sold by the federal government subject to reserved mineral mining rights, restricts such mining to U.S. citizens, corporations and other U.S. entities. Also, for an alien to obtain an interest in a mineral lease held by a U.S. citizen under the Mineral Leasing Act of 1920, the Secretary of the Interior must approve any subleases or assignments of such leases.

The Atomic Energy Act prohibits foreign ownership or control of nuclear power facilities. In addition, only U.S. persons may obtain geothermal steam and similar leases of federal land or licenses to own or operate hydroelectric power facilities. In these latter cases, the U.S. person may be a U.S.-registered corporation, and there is no limit on foreign ownership or control; however, applications where foreign ownership or control is involved are often more highly scrutinized.

Although recent changes in the law are leading to greater competition in the generation of electricity and related services, interstate transmission of natural gas and electricity is still subject to federal regulation. In most cases such regulation is not concerned with citizenship; however, a company or utility under the jurisdiction of the Federal Energy Regulatory Commission (FERC) must file information annually concerning citizenship, ownership and control.

Over 30 states, particularly those with extensive farming areas, have laws restricting foreign interests in real estate, some applicable to ownership by foreign persons and some applicable only to inheritance by foreign persons. Certain of these laws are specifically directed to investments in agricultural land. In most instances it is possible to structure the investment to avoid the applicability of the state laws concerned.

The federal "Exon-Florio" law permits the President to suspend or block a foreign acquisition by a U.S. person if he finds the acquisition would threaten U.S. national security, and no other laws would adequately protect such security. The interagency Committee on Foreign Investment in the U.S. (CFIUS), chaired by the Treasury Department, has authority to investigate such acquisitions and make recommendations for action.

The Exon-Florio law does not define "national security." However, it does list the following factors to be considered:

• Domestic production needed for projected national defense requirements;

• The capability and capacity of domestic industries to meet national defense requirements, including the availability of human resources, products, technology, materials, and other supplies and services;

• The control of domestic industries and commercial activity by foreign citizens as it affects the capability and capacity of the U.S. to meet the requirements of national security;

• The potential effects of the transaction on the sales of military goods, equipment or technology to a country that supports terrorism or proliferates missile technology or chemical and biological weapons; and

• The potential effects of the transaction on U.S. technological leadership areas affecting U.S. national security.

A party to a foreign acquisition of a U.S. entity may give written notice to CFIUS of the proposed acquisition, whereupon CFIUS must determine within 30 days after receipt of the notice whether to investigate the transaction. It is important to note that an unreported transaction is forever subject to review and possible prohibition. Also, when the acquiring entity is controlled by or acting on behalf of a foreign government, and the acquisition concerned could affect U.S. national security, a CFIUS investigation is required rather than optional.

Regulations issued under Exon-Florio contain extensive details on the general rules, definitions, categories of transactions covered and excluded, the notice system, review and investigation procedures, and Presidential action under the statute.

In the past, transactions notified to CFIUS were rarely investigated. However, since the September 11, 2001 terrorist attacks, a noticeable expansion has occurred as to what constitutes a "national security" concern under Exon-Florio. Transactions deemed appropriate for CFIUS review now go well beyond the defense industry, particularly into such fields as telecommunications and technology. In these areas, CFIUS has started to insist on certain changes in some of the notified acquisitions prior to giving its approval, in order to promote national security and protect against terrorism. In 2003, President Bush appointed as a member of CFIUS the Secretary of the Department of Homeland Security, the recently-created government department devoted to protecting against terrorism—thereby further evidencing the likelihood of expanded review under CFIUS.

In October 2001 the U.S. adopted the USA PATRIOT Act, an acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism." The Act expands the powers of certain law enforcement officials to counter terrorism both in the U.S. and abroad, and strengthens criminal laws against terrorism. Moreover, it requires financial institutions to establish expanded anti-money laundering programs; to strengthen "know your customer" procedures; and to conduct enhanced due diligence on all accounts belonging to non-U.S. persons.

As a result, when seeking to engage in various financial transactions in the U.S., foreign investors in the U.S., including their families and associate must now expect to be more forthcoming with information regarding such matters as ownership status and non-affiliation with certain individuals and organizations deemed to be adverse to the national security of the U.S.

In November 2002, the U.S. government established the Department of Homeland Security (DHS). The new department’s first priority is to prevent and respond to terrorist threats and attacks within the U.S. Component agencies analyze threats and intelligence, guard U.S. borders and airports, protect critical infrastructure and coordinate the U.S. response for future emergencies.

In addition, the DHS now manages the U.S. immigration system through its Bureau of Citizenship and Immigration Services. (See "U.S. Immigration Law," page 21.) DHS also supports the development of technology to deter attacks on the information and financial systems, the Internet and other critical infrastructure of the U.S.

It can be anticipated that DHS activities will further support the more rigorous implementation of the Exon-Florio law and the USA PATRIOT Act, discussed above.

The U.S. Department of Defense and other federal government agencies have industrial security regulations designed to guard against access to classified information by foreigners. The regulations limit access by contractors and their employees to classified sites and information utilized in connection with the government contract concerned. To perform such a contract, a contractor must obtain a "facility security clearance" and individual security clearances for personnel that will have access to classified information.

In general, a facility or contractor found to be under foreign ownership, control or interest (FOCI) is not eligible for a facility security clearance. FOCI is determined on a case-by-case basis, and factors such as percentage of foreign beneficial ownership (5% or more), nationality of directors and officers, and percentage of income from foreign sources (10% or more) are considered. Even loan arrangements between the foreign and U.S. enterprises are among the factors that determine whether the foreign enterprise is likely to exercise undue influence over the U.S. enterprise for purposes of the FOCI test.

Exceptions to the FOCI restrictions can sometimes be obtained by utilizing voting trust agreements or proxy agreements, administered by the federal Defense Investigative Service, whereby the foreign stockholders are effectively divested of management control in the contracting company. Less severe "corporate governance" arrangements may be made where a foreign interest controls a relatively small percentage of the voting stock. In addition, contractors owned by entities from certain countries that are allies of the U.S. may obtain clearances under reciprocal clearance agreements.

Some federal and state laws impose reciprocity requirements—that is, they will permit a particular investment only if the investor’s country of origin admits U.S. enterprises on the same or similar terms.

Although reciprocity requirements are not common in the U.S., they are sometimes found in such fields as the establishment of bank branches, communications, international air transport, and participation in certain mineral interests on federal lands.

Under federal Foreign Assets Control Regulations (pursuant to the Trading With the Enemy Act), certain U.S. investments and other transactions with persons of listed countries require licenses from the U.S. Treasury Department. Countries presently on the list include Cuba, Iran, Iraq, Libya, North Korea and the Sudan. This list changes from time to time. In some cases, the restrictions under this law apply to particular organizations and types of interests regardless of locale, such as certain entities associated with terrorism.

A variety of reporting requirements apply to certain larger foreign investments in the U.S. and other types of international transactions.

7.1.1 Direct Investment. In the case of "direct" investment—that is, the establishment of a new U.S. enterprise or acquisition of an existing one, where there is direct or indirect 10% or more foreign ownership—the following federal government survey reports are required pursuant to the International Investment and Trade in Services Survey Act (subject to the exemptions noted):

• An initial direct investment survey report (usually on Form BE-13) must be filed with the Bureau of Economic Analysis (BEA) of the U.S. Commerce Department within 45 days after the direct investment transaction occurs. An exemption may be claimed if the new U.S. affiliate has no more than $3 million in total assets and owns less than 200 acres of U.S. land immediately after being established. The types of information to be reported on a Form BE-13 include the type of transaction and date of completion; identity and ownership structure of the new U.S. affiliate; identity of the U.S. business enterprise, or business segment or operating unit of a U.S. business enterprise, if any, that has been acquired by and merged into an existing U.S. affiliate; selected financial and operating data; industry classification broken down by sales; investment incentives and services provided by state or local governments or quasi-governmental entities; identification of the foreign parent and ultimate beneficial owner; and the portion of the funding that is foreign. Generally, the U.S. enterprise whose interests are acquired is responsible for filing this kind of information on a Form BE-13A, while the foreign investor is usually responsible for Form BE-13B, although the latter may also be filed by the U.S. enterprise on the foreign investor’s behalf if it is able to secure the necessary information. At the same time that these reports are filed, the business entity whose interest was acquired or which was established must file an Industry Classification Questionnaire, Form BE-607.

• Annual reports are required on Form BE-15 (replaced by a more extensive BE-12 benchmark survey every fifth year). An exemption to the BE-15 (or BE-12) requirement applies if all of the following are under $30 million each: total assets; actual or expected annual sales or gross operating revenues excluding sales taxes; and actual or expected annual net income after provision for U.S. income tax.

• Quarterly reports by the U.S. enterprise on Form BE-605 are required as to transactions with the foreign parent. An exemption to the BE-605 requirement applies if all the elements noted above in the annual reporting exemption are under $30 million.

• Other exemptions from reporting exist for certain types of investments. For example, real estate held exclusively for personal use and not as a business for profit is exempt from reporting to the BEA. Also exempt are airline, shipping and similar activities providing services only to their own operations. Further, limited partners are usually not considered to have a direct investment in their partnership because they lack general voting rights; however, they are considered to have a portfolio investment subject to different reporting as noted below.

7.1.2 Survey reports. Survey reports to the BEA with respect to direct investment as mentioned above, or to the Treasury Department with respect to portfolio investment as mentioned below, are required to be held in confidence and may be used by the government only for analytical and statistical purposes. Nonetheless, under the International Investment and Trade Services Act, the filing of such forms is mandatory. Penalties for failing to file the BEA forms mentioned in this Section 7 range from $2,500 to $25,000 and may include imprisonment and fines for willful failures by individuals or corporate officers.

7.1.3 Portfolio Investment. Through the use of reporting Form S, the Treasury Department seeks to monitor long-term investments and thereby chart capital movements into and out of the U.S. In general, portfolio investments in the U.S. by a foreign person (those involving under 10% direct or indirect foreign ownership) must be reported by the U.S. entity on Form S to the U.S. Treasury Department (or in some instances to district Federal Reserve Banks acting as fiscal agents for the Treasury) if they involve long-term (over one year) marketable public or private issues of debt or equity and aggregate over $2 million in a calendar month.

7.1.4 Agricultural Land Investment. Reports to the Agricultural Stabilization and Conservation Service of the U.S. Agriculture Department are required under the Agricultural Foreign Investment Disclosure Act of 1978 as to almost any acquisition or transfer of interest in U.S. agricultural land by a foreign person.

Federal and state taxation authorities may require information about foreign ownership or control as part of the tax return process. Most importantly, any U.S. corporation that is owned directly or indirectly at least 25% in voting power or value by a foreign person (or any foreign corporation engaged in a U.S. trade or business through, for example, an unincorporated U.S. branch, that is so owned) must file Form 5472 annually with the federal Internal Revenue Service if they have had any sales or purchases of property, rents or royalties, commissions, interest or insurance premiums paid or received, or loans or borrowings. This form requires (a) identification of any persons related to the reporting corporation or owned or controlled by the same interests, and with which it has had any transactions during its taxable year, including the manner in which it is related to each such person, and (b) a description of its reportable transactions with such foreign person.

These filings on Form 5472 are given the same confidential treatment as that accorded to other U.S. federal tax returns. Nevertheless, the U.S. has a number of tax treaties and agreements thereunder with other countries that promote the sharing of tax information between them, and such sharing pursuant to a treaty could reduce the value of confidentiality accorded within the U.S. itself.

In an effort to assist in criminal, tax and regulatory investigations and proceedings, the Bank Secrecy Act requires the reporting of various international monetary transactions. Examples include:

7.3.1 Individuals travelling into and from the U.S. are required to disclose to U.S. Customs Service agents when they are carrying more than $10,000 in currency or other monetary instruments. Anyone who sends or causes to be sent currency in excess of $10,000 outside of the U.S. must report such fact to the Treasury by filing a Form 4790.

7.3.2 The U.S. Treasury requires the reporting of transactions and holdings in foreign currencies by U.S. bank and non-bank enterprises and their affiliates. Some of the pertinent forms are the Treasury Foreign Currency Forms FC-1, FC-2 and FC-3, which must be filed with the Federal Reserve Bank of New York.

The following reports must be filed as to the transactions specified unless the amounts of activity fall below the exemption levels specified on each form.

7.4.1 Treasury International Capital nonbanking Forms CM, CQ-1 and CQ-2: these cover the reporting by U.S. persons of significant liabilities of U.S. persons to unaffiliated foreigners, or significant claims by U.S. persons on unaffiliated foreigners. (Banking and securities institutions are exempt from these particular reports, but are subject to other reporting requirements.)

7.4.2 Reports on agreements involving intangible assets or other proprietary rights: BEA Form BE-93 is required from U.S. persons who enter into agreements with unaffiliated foreign persons to buy, sell or use intangible assets or other proprietary rights. It includes most license fees and royalties (other than oil and other natural resource royalties). No report is required if combined foreign receipts or payments covered by the form are less than $500,000 for the reporting year.

7.4.3 Survey reporting of certain services sold to or purchased from unaffiliated foreign persons: BEA Forms BE-20 (every five years) and BE-22 (annual) are required from U.S. persons who have purchase or sale transactions involving covered service activities with unaffiliated foreigners exceeding $1 million in a fiscal year. Over 30 different categories of services are covered, ranging from advertising to telecommunications. Similar reports are required from U.S. persons with respect to U.S. engineering, construction, architectural or mining services to unaffiliated persons involving foreign projects or countries (BE-47).

Under this Act, subject to significant exceptions mentioned below, only articles, materials and supplies produced in the U.S. may be acquired by the federal government for public use. Also, in construction contracts with the federal government, contractors and suppliers may ordinarily only use U.S.-produced goods.

The Buy America Act also prohibits procurement from countries not in good standing as signatories of the International Agreement on Government Procurement, and from any country found to harm U.S. business by persistent and significant patterns of procurement discrimination. Moreover, other restrictions on procurement of foreign supplies and services are contained in Defense Department authorization and appropriation acts.

Many exceptions exist, however, which reduce the impact of the Act. These include exceptions for (a) items not manufactured, produced or mined in the U.S. in "sufficient and reasonably available commercial quantities and of a satisfactory quality;" (b) situations where the prices of the domestic products concerned are determined to be unreasonably high; (c) materials used by the federal government outside the U.S.; and (d) exceptions for contractors based in countries with reciprocal treaties with the U.S. on cooperation in government procurement.

The states, in awarding public contracts, also have laws giving certain preferences to their residents, or to items produced within the state concerned, or in the U.S., often with various exceptions.

Several states have laws that, in effect, limit foreign acquisition of U.S. investments by inheritance or that may discourage U.S. investment by any nonresident alien individual who may wish to transfer holdings upon death to other foreign persons.

These laws are mainly of two types:

1. Those that prohibit inheritance in case of judicial determination in the U.S. that the heir’s country (the foreign country) will deprive them of their inheritance (such laws are found, for example, in states such as Connecticut, New Jersey and New York).
2. Those that prohibit inheritance in case of a determination that the heir’s country (the foreign country) would not reciprocally permit a U.S. person to inherit from one of its own domiciliaries (such laws are found, for example, in states such as North Carolina and Oklahoma).

A purchaser of U.S. real estate must withhold and forward to the Internal Revenue Service a portion of the purchase price unless it can be established that the seller is not a foreign person whose gain on the sale is subject to the Foreign Investment in Real Property Tax Act (FIRPTA).

A foreign national (but not a resident alien) is prohibited from making, directly or indirectly, campaign contributions to a candidate for U.S. political office (Federal Elections Campaign Act of 1971).

Controlling foreign investors are not eligible for certain U.S. government benefits. For example, investment insurance and guaranties provided by the U.S. Overseas Private Investment Corporation (OPIC) are available only to companies with majority U.S. ownership. As another example, non-U.S. controlled persons are not eligible for federal subsidies in the shipping and fishing industries.

Some federal laws limit foreign participation in management of even U.S.-owned corporations. For example, the directors of a national bank owned by a foreign bank must be U.S. citizens. A U.S. corporation wishing to register a vessel under U.S. law must have substantially U.S. management.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.