{"ok":true,"insights":[{"slug":"cta-foreign-entities-after-fincen-final-rule","title":"The Corporate Transparency Act Now Applies Only to Foreign Companies: What a Foreign Entity Registered in a U.S. State Still Has to File","date":"2026-11-06","category":"Cross-Border","practiceArea":"foreign-companies-us-entry","description":"FinCEN's August 2026 final rule ended CTA reporting for U.S.-formed companies. Foreign entities registered in a U.S. state still file BOI reports in 30 days.","takeaways":["A company formed under foreign law and registered to do business in any U.S. state or tribal jurisdiction is still a reporting company under the Corporate Transparency Act and must file a BOI report with FinCEN within 30 calendar days after its registration becomes effective.","FinCEN's final rule of August 11, 2026 (91 FR 52508, effective August 14, 2026) made permanent the March 2025 interim rule's exemption of every U.S.-formed entity and of U.S.-person beneficial owners, and added an exemption for U.S.-person company applicants.","A foreign reporting company reports only its non-U.S. beneficial owners and applicants, but the company-level report is still due even if every owner is a U.S. person.","A foreign LLC authorized in New York files twice: a FinCEN BOI report within 30 days of notice that its registration is effective, and a New York LLC Transparency Act disclosure or exemption attestation within 30 days of filing its application for authority, with annual statements thereafter."],"faqs":[{"q":"Does a foreign company registered to do business in a U.S. state still have to file a BOI report with FinCEN?","a":"Yes. Under 31 CFR 1010.380 as amended by FinCEN's August 2026 final rule, an entity formed under the law of a foreign country and registered with a secretary of state or similar office in any U.S. state or tribal jurisdiction is a reporting company. Unless an exemption applies, it must file an initial BOI report within 30 calendar days of notice that its registration is effective and keep the report updated."},{"q":"Which owners does a foreign reporting company have to report?","a":"Only individuals who are not United States persons. The company reports each non-U.S. individual who exercises substantial control or owns or controls at least 25 percent of its ownership interests and, if first registered on or after January 1, 2024, each non-U.S. company applicant. U.S. citizens, resident aliens, and domestic entities are exempt, but the company's own identifying information is still reported."},{"q":"Does the FinCEN filing satisfy the New York LLC Transparency Act?","a":"No. A foreign-country LLC authorized to do business in New York must separately file a beneficial ownership disclosure, or an attestation of exemption, with the New York Department of State within 30 days of filing its application for authority, pay a $25 fee, and file an annual statement thereafter. LLCs authorized before January 1, 2026 have until December 31, 2026 under Department of State guidance."}],"url":"https://www.newerlaw.com/posts/cta-foreign-entities-after-fincen-final-rule.html","markdownUrl":"https://www.newerlaw.com/posts/cta-foreign-entities-after-fincen-final-rule.md"},{"slug":"new-york-llc-transparency-act-filing-guide","title":"The New York LLC Transparency Act Filing: Who Actually Has to File by December 31, 2026, and What","date":"2026-11-06","category":"Cross-Border","practiceArea":"foreign-companies-us-entry","description":"Which New York LLCs must file a BOI disclosure or exemption attestation by December 31, 2026, what each requires, how to file with the DOS, and the penalties.","takeaways":["Under the Department of State's current guidance, an LLC formed in New York or any other U.S. state or territory files nothing under the LLC Transparency Act, not even an attestation of exemption.","A non-U.S. LLC authorized to do business in New York before January 1, 2026 must file either a beneficial ownership disclosure or a signed attestation of exemption with the Department of State by December 31, 2026, and annually after that.","New York never amended the Act to narrow it; the scope collapsed because the statute borrows FinCEN's definitions, FinCEN narrowed them to foreign-formed companies in 2025, and Governor Hochul vetoed the decoupling bill on December 19, 2025.","Missing the filing means 'past due' status after 30 days, deemed suspension after notice, Attorney General fines of up to $500 per day, and after two years 'delinquent' status with possible dissolution or annulment of authority."],"faqs":[{"q":"Does my New York-formed LLC have to file anything under the LLC Transparency Act by the end of 2026?","a":"Not under current Department of State guidance. Because the Act borrows FinCEN's definition of 'reporting company,' and FinCEN limited that term to foreign-formed entities in 2025, the Department's FAQs treat LLCs formed in New York or any other U.S. state or territory as outside the reporting requirements, with no disclosure and no attestation due. That could change if the Legislature re-passes a decoupling bill, so confirm annually."},{"q":"What is the difference between the beneficial ownership disclosure and the attestation of exemption?","a":"The disclosure identifies each non-U.S. beneficial owner and applicant by legal name, date of birth, address, and an unexpired government ID number. The attestation, filed by a foreign-country LLC that meets one of 23 federal exemptions, names the exemption claimed and states the supporting facts under penalty of perjury. Both are signed by a member, manager, or authorized person, cost $25, and are renewed annually."},{"q":"How do I actually file with the New York Department of State, and is the portal live?","a":"As of November 2026 the Department's online portal is still marked 'coming soon.' Filings are made by emailing the Department's PDF form, together with a credit or debit card authorization for the $25 fee, to the address in its filing instructions. Mail and fax are refused because the forms contain personal information. The Department returns a receipt or rejection notice by email."}],"url":"https://www.newerlaw.com/posts/new-york-llc-transparency-act-filing-guide.html","markdownUrl":"https://www.newerlaw.com/posts/new-york-llc-transparency-act-filing-guide.md"},{"slug":"loper-bright-eb1-final-merits","title":"Mukherji v. Miller: A Federal Court Strikes the EB-1A \"Final Merits Determination\"","date":"2026-06-26","category":"Immigration · Federal Litigation","practiceArea":"business-immigration","description":"A Nebraska district court relied on Loper Bright to set aside USCIS's two-step EB-1A \"final merits determination,\" vacated the denial, and ordered approval. What the decision held, why Loper Bright is what changed, and what it means for pending petitions.","takeaways":["On January 28, 2026, the District of Nebraska in Mukherji v. Miller vacated an EB-1A denial based on the final merits determination and ordered USCIS to approve the petition.","The court held the final merits framework was a substantive rule adopted without notice-and-comment, was arbitrary and capricious, and warranted no deference after Loper Bright.","Mukherji binds neither USCIS nationwide nor any appellate court, so service centers will keep applying the final merits determination and petitions should be prepared accordingly.","An EB-1A denial that credits three or more criteria but fails on a totality assessment is now a substantially stronger candidate for federal court review than before."],"faqs":[{"q":"What is the EB-1A final merits determination and is it still valid?","a":"The final merits determination is USCIS's second step in EB-1A adjudication: after a petitioner satisfies at least three of the ten criteria in 8 C.F.R. 204.5(h)(3), the agency separately judges whether the record as a whole shows extraordinary ability. It appears nowhere in the statute or regulations and was adopted as nationwide policy in December 2020. In Mukherji v. Miller, a Nebraska federal court held it cannot stand, but USCIS continues to apply it."},{"q":"Did Loper Bright end the EB-1A final merits determination?","a":"Not yet in practice. Loper Bright removed the Chevron deference that let USCIS defend the two-step framework and that underpinned the Fifth Circuit's 2022 decision in Amin v. Mayorkas. Courts must now decide the best reading of the statute themselves, and the Nebraska district court in Mukherji found no textual basis for a second evaluative layer. But one trial court order does not bind USCIS nationwide, and Amin remains good law in the Fifth Circuit."},{"q":"My EB-1A was denied on final merits even though I met several criteria. Should I refile or sue?","a":"Federal court review is now a much stronger option. If USCIS credited three or more regulatory criteria and denied only on a totality assessment, Mukherji v. Miller materially improves the litigation posture and strengthens motions to reopen, shifting the traditional calculation that favored refiling. The decision does not justify thinner filings, though: USCIS still applies the framework, so new petitions should cleanly establish four, five, or more criteria with strong documentary support."}],"url":"https://www.newerlaw.com/posts/loper-bright-eb1-final-merits.html","markdownUrl":"https://www.newerlaw.com/posts/loper-bright-eb1-final-merits.md"},{"slug":"new-york-qsbs-decoupling","title":"New York's QSBS Decoupling Proposal: What Founders Need to Know","date":"2026-03-20","category":"Tax · Venture Capital","practiceArea":"venture-capital-startups","description":"New York has proposed retroactively decoupling from the federal Section 1202 Qualified Small Business Stock exclusion. What the proposal would do, who is exposed, and what founders and investors should consider now.","takeaways":["New York's State Senate one-house budget for fiscal 2026-2027 would decouple state income tax from the federal Section 1202 QSBS exclusion, retroactive to January 1, 2025.","A New York City founder with $10 million of QSBS gain would owe roughly $1.48 million in state and city tax under the proposal, versus zero today.","QSBS gain is sourced to the seller's state of residence, so a founder who is not a New York resident at sale owes no New York tax on it.","A fifteen-month retroactive reach sits at the outer boundary of what courts have tolerated under United States v. Carlton, leaving a Due Process challenge an open question."],"faqs":[{"q":"Is New York getting rid of the QSBS tax exclusion?","a":"It is proposed but not enacted. The New York State Senate's one-house budget for fiscal year 2026-2027 includes a provision that would require taxpayers to add back federally excluded Section 1202 QSBS gain when computing New York taxable income, eliminating the state benefit entirely. The Assembly and Governor have not adopted it, and final budget negotiations are expected before the April 1, 2026 deadline. The provision could survive, be modified, or be dropped."},{"q":"How much New York tax would I owe on QSBS gain if the decoupling passes?","a":"Up to 10.9% state tax plus 3.876% New York City tax on gain that stays fully excluded federally. A New York City resident selling QSBS with $10 million of gain, who currently pays zero federal and zero state tax, would owe approximately $1.48 million in combined state and city tax. A $50 million gain would generate roughly $7.4 million in New York liability that does not exist under current law."},{"q":"Can I avoid New York tax on QSBS by moving before I sell?","a":"Yes, if the move is genuine. New York taxes nonresidents only on New York-source income, and QSBS gain is sourced to the seller's state of residence, not where the company is located. New York's Department of Taxation and Finance aggressively audits domicile changes around liquidity events. A valid change requires selling or ending the lease on the New York home, changing driver's license and voter registration, moving personal effects, and primary presence in the new state."}],"url":"https://www.newerlaw.com/posts/new-york-qsbs-decoupling.html","markdownUrl":"https://www.newerlaw.com/posts/new-york-qsbs-decoupling.md"},{"slug":"ai-agents-crypto-wallets-legal-frontier","title":"AI Agents with Crypto Wallets: The Liability Gap Nobody Has Closed","date":"2026-02-26","category":"AI · Regulatory","practiceArea":"ai-and-agents","description":"Autonomous AI agents now hold and transact from crypto wallets. The technology is live, but the legal accountability framework for an agent with no human behind it is not. An analysis of the liability gap and how it might be closed.","takeaways":["Current U.S. law attributes an AI agent's actions to the human or entity that deploys it, but that principle presupposes an identifiable accountability chain that autonomous agents increasingly lack.","No bill moving through Congress directly addresses AI agents as economic actors; the GENIUS Act and CLARITY Act regulate stablecoins and digital assets, not the agents using them.","Neither the GENIUS Act nor the CLARITY Act addresses legal personhood for agents, liability attribution, KYC/AML for non-human wallets, or tax treatment of agent-earned income.","Foreign operators of agents earning U.S.-source income face unresolved questions on effectively connected income, FIRPTA exposure, and treaty beneficial-owner status, and should analyze obligations now."],"faqs":[{"q":"Who is liable when an autonomous AI agent with a crypto wallet causes a loss?","a":"Under current law, the developer, operator, or deployer of the agent is liable, because software is treated as a tool of the person who deploys it. That rule works poorly when the developer has abandoned the project, when agents hire other agents across companies, or when the operator is outside the United States, because liability may exist in principle but be impossible to collect or enforce."},{"q":"Does the GENIUS Act or CLARITY Act regulate AI agents that trade crypto?","a":"No. The GENIUS Act, signed July 2025, creates a federal framework for payment stablecoins and classifies approved stablecoins as neither securities nor deposits. The CLARITY Act, which passed the House 294-134 in July 2025, divides SEC and CFTC jurisdiction over digital assets. Neither says whether an autonomous agent is itself a stablecoin issuer, broker, or dealer; the GENIUS Act's implementing regulations, due by July 2026, are the first chance to address that."},{"q":"What should a founder do before deploying an AI agent that holds crypto?","a":"Structure the deploying entity deliberately, deciding where it is domiciled, how the agent's profits and losses are reported, and what happens to assets the agent accumulates. Put the accountability chain in writing so contracts attribute the agent's actions to a specific legal person. Foreign operators touching U.S. markets or persons should analyze their U.S. tax and regulatory obligations now, and everyone should watch the GENIUS Act rulemaking due by July 2026."}],"url":"https://www.newerlaw.com/posts/ai-agents-crypto-wallets-legal-frontier.html","markdownUrl":"https://www.newerlaw.com/posts/ai-agents-crypto-wallets-legal-frontier.md"},{"slug":"structuring-us-entity","title":"Structuring a U.S. Entity for a Foreign-Owned Business","date":"2026-02-10","category":"Cross-Border","practiceArea":"foreign-companies-us-entry","description":"Most guidance on U.S. entity formation is written for domestic founders. When the owner is a foreign person or company, the analysis changes substantially. How to structure a U.S. entity when the owner is foreign.","takeaways":["Foreign owners have three practical U.S. structures: an LLC taxed as a pass-through, a C-Corporation taxed as a separate entity, or a branch of the foreign company.","A C-Corp generally limits the foreign owner's U.S. tax to dividends received, subject to GILTI, and is required for VC-backed companies raising institutional capital.","FDAP income such as interest, dividends, royalties, and certain rents paid to foreign persons faces 30% U.S. withholding unless an applicable treaty reduces it.","FIRPTA withholding can apply to a sale of the U.S. entity itself, not only the property, when the entity holds U.S. real estate or certain leasehold interests."],"faqs":[{"q":"Should a foreign owner form an LLC or a C-Corp in the United States?","a":"For many foreign-owned businesses with active U.S. operations, a C-Corp offers cleaner separation: it is a separate taxable entity and the foreign owner is generally taxed only on dividends, subject to GILTI and related rules. An LLC is a pass-through by default, which makes the foreign owner directly taxable on effectively connected income and can trigger withholding on distributions. A C-Corp is also mandatory for VC-backed startups and companies raising institutional capital."},{"q":"Can a foreign company just operate in the U.S. as a branch instead of forming an entity?","a":"It can, but a branch is rarely the best structure for ongoing operations. A branch is not a separate legal entity; it is the foreign company doing business directly in the United States. That exposes the foreign company itself to U.S. tax on branch profits and to direct legal liability in the U.S. A branch may be appropriate for limited-duration projects."},{"q":"How can a foreign owner reduce U.S. withholding tax on payments from a U.S. subsidiary?","a":"Through a tax treaty election, if one applies. Payments of interest, dividends, royalties, and certain rents to foreign persons are subject to 30% U.S. withholding, reduced by an applicable treaty. To claim the reduction, the treaty must cover the specific type of income and the ownership structure must satisfy the treaty's limitation on benefits provisions. Interposing an entity in a non-treaty jurisdiction can forfeit treaty benefits entirely, so intercompany payment flows should be designed at formation."}],"url":"https://www.newerlaw.com/posts/structuring-us-entity.html","markdownUrl":"https://www.newerlaw.com/posts/structuring-us-entity.md"},{"slug":"foreign-companies-entity-selection","title":"What Foreign Companies Get Wrong About U.S. Entity Selection","date":"2026-01-28","category":"Cross-Border","practiceArea":"foreign-companies-us-entry","description":"Foreign companies entering the U.S. market frequently choose an entity based on a single factor. The tax and liability implications most foreign counsel underestimate.","takeaways":["A foreign corporate owner of a U.S. LLC can be directly subject to U.S. tax on effectively connected income, with withholding on distributions and possible treaty complications.","Delaware suits companies raising venture or institutional capital; for other foreign-owned businesses operating in New York, it adds duplicate filings and fees with no meaningful benefit.","New York State imposes its own corporate tax and New York City a separate business tax, so a federally sound structure can still carry unexpected state and city exposure.","A foreign-owned LLC complicates a stock-sale exit because LLC interests, not stock, are sold; converting to a corporation before a sale triggers tax events and delays."],"faqs":[{"q":"Should a foreign company use an LLC for its U.S. subsidiary?","a":"Often not, and never just because it sounds simpler. An LLC's default pass-through treatment means a foreign corporate owner may be directly subject to U.S. tax on the LLC's effectively connected income, face withholding on distributions, and run into treaty complications. The LLC can still be right for some foreign-owned businesses, but the decision should start with the owner's tax residence, applicable treaties, and expected fund flows to the foreign parent."},{"q":"Should a foreign-owned business incorporate in Delaware or New York?","a":"Delaware is the correct choice for most companies that intend to raise venture capital or institutional investment. For a foreign-owned business that operates primarily in New York, has no plans to raise institutional capital, and does not need Delaware's specialized corporate law, New York formation is often better. A Delaware entity operating in New York must register as a foreign entity, pay New York taxes, and keep a Delaware registered agent, producing two sets of filings with no benefit."},{"q":"Does my choice of U.S. entity affect how I can sell the business later?","a":"Yes. A foreign-owned LLC that attracts a U.S. acquirer may find that the buyer's preferred structure, typically a stock sale, does not fit because LLC interests rather than stock are sold. Converting the LLC to a corporation before the sale is possible but creates its own tax events and takes time a buyer under a letter of intent may not tolerate. A business expecting acquisition within three to five years may need a different entity than one operating indefinitely."}],"url":"https://www.newerlaw.com/posts/foreign-companies-entity-selection.html","markdownUrl":"https://www.newerlaw.com/posts/foreign-companies-entity-selection.md"},{"slug":"safe-not-simple","title":"SAFEs, Side Letters, and Stealth Governance","date":"2026-01-14","category":"Venture Capital","practiceArea":"venture-capital-startups","description":"The SAFE was designed to give early investors no governance rights. Side letters and related instruments can quietly reintroduce them. What founders should look for before signing.","takeaways":["Section 1(c) of the YC post-money SAFE gives investors no voting, dividend, or consent rights until conversion; side letters are how investors reintroduce governance.","A side letter negative covenant requiring investor consent before a sale or new equity issuance is economically a veto right, even though it never appears on the cap table.","SAFE holders are not stockholders of record, so Delaware Section 220 inspection rights do not reach them; only a contractual side letter right fills that gap.","In Seed River v. AON3D, the court found breach of a SAFE side letter but denied an injunction because the letter lacked an express equitable remedy clause."],"faqs":[{"q":"Do SAFE investors have any governance or voting rights?","a":"Not under the SAFE itself. Section 1(c) of Y Combinator's standard post-money SAFE states the holder cannot vote, receive dividends, be treated as a holder of capital stock, or give or withhold consent to corporate action until the SAFE converts. Governance rights arrive instead through separately negotiated side letters, which commonly grant information rights, inspection rights, and negative covenants that require investor consent before specified company actions."},{"q":"Are SAFE side letters legally enforceable?","a":"Yes. In Seed River, LLC v. AON3D, Inc. (D. Del. 2023), the court found the company breached a side letter by withholding financial statements and blocking inspection, but denied injunctive relief because the letter had no express equitable remedy provision, leaving the investor to pursue damages. In Crashfund v. FaZe Clan (Mass. Super. Ct. 2020), a claim that the founders structured a deal to evade SAFE conversion rights proceeded under the implied covenant of good faith."},{"q":"What happens to SAFE side letters when we raise a Series A?","a":"The lead investor will find the side letter stack in due diligence and will typically require every prior side letter to be harmonized or terminated as a closing condition. SAFE investors who refuse to waive their rights can delay or complicate the closing, and an investor holding a veto on equity issuances has leverage at that moment. Diligence also surfaces inadvertent breaches, such as option grants made without a required consent or MFN clauses triggered by a lower cap."}],"url":"https://www.newerlaw.com/posts/safe-not-simple.html","markdownUrl":"https://www.newerlaw.com/posts/safe-not-simple.md"},{"slug":"eb5-after-reform-act","title":"EB-5 After the Reform Act","date":"2025-12-19","category":"Immigration","practiceArea":"business-immigration","description":"The EB-5 Reform and Integrity Act of 2022 restructured the immigrant investor program: higher investment amounts, set-aside categories, and a rebuilt regional center regime. What investors need to know now.","takeaways":["Under the EB-5 Reform and Integrity Act of 2022, the standard investment is $1,050,000 and the Targeted Employment Area amount is $800,000, both now inflation-adjusted.","Twenty percent of EB-5 visas are reserved for rural projects, and those visas do not retrogress for oversubscribed countries such as China, India, and Vietnam.","Ten percent of visas are set aside for high-unemployment TEAs and two percent for infrastructure projects, but the high-unemployment category still retrogresses for backlogged countries.","The Reform Act authorizes concurrent filing of the I-526E petition and adjustment of status when a visa number is immediately available, shortening the path to work authorization."],"faqs":[{"q":"How much do I need to invest for an EB-5 visa after the 2022 Reform Act?","a":"The minimum EB-5 investment is $1,050,000, or $800,000 for a project in a Targeted Employment Area, meaning a rural area or an area with high unemployment. These figures replaced the prior $900,000 and $450,000 thresholds and are now subject to inflation adjustment. The large jump in the TEA amount was intended to curb urban projects that had qualified as TEAs through geographic manipulation."},{"q":"Is the rural EB-5 set-aside faster for investors born in China or India?","a":"Yes. Twenty percent of EB-5 visas each fiscal year are reserved for rural projects, located outside metropolitan statistical areas and outside any city or town of 20,000 or more people. Those visas do not retrogress for oversubscribed countries, and unused rural visas roll into the general pool. For investors born in China, India, or Vietnam, the rural set-aside is a materially faster route to permanent residence than the general category."},{"q":"Can I file my EB-5 petition and green card application at the same time?","a":"Yes, if a visa number is immediately available. The Reform Act explicitly authorizes concurrent filing of the I-526E petition and an adjustment of status application. Investors already in the United States in valid nonimmigrant status can use this to cut the time between investment and work authorization. Investors born in countries without retrogression, including most European, Latin American, and African countries, benefit immediately; those born in China, India, or Vietnam must weigh the set-aside categories."}],"url":"https://www.newerlaw.com/posts/eb5-after-reform-act.html","markdownUrl":"https://www.newerlaw.com/posts/eb5-after-reform-act.md"}]}