The U.S. Small Business Administration ("SBA") has issued new guidance on the new Paycheck Protection Program ("PPP"), which currently makes loans available to applicants that employ fewer than 500 people (or higher amount for businesses in certain industries), that indicates that a business generally is eligible for a PPP loan if it, combined with its foreign and domestic affiliates, has "500 or fewer employees whose principal place of residence is in the United States." Such guidance suggests that the foreign employees of an applicant and its affiliates do not need to be included in the employee count.

It is to be noted that such guidance, which appears in both the Interim Final Rule (found here) and a SBA FAQ dated April 8, 2020 (found here), conflicts with the way employees are counted under the affiliation rules in 13 CFR Section 121.301, subject to certain statutory waivers. It is unclear whether the SBA will issue further clarification or guidance on this issue.