To qualify as a foreign private adviser, an investment adviser or fund manager may not have a place of business in the US. The Final Rule defines “place of business” to mean any office where the investment adviser regularly provides advisory services, solicits, meets with, or otherwise communicates with clients, and any location held out to the public as a place where the adviser conducts any such activities. A non US adviser will not be presumed to have a place of business in the US solely because the adviser has a US affiliate. However, if the non-US adviser’s personnel regularly conduct advisory activities at the affiliate’s US place of business, the non-US adviser will be deemed to have a place of business in the US.

In the Final Release, the SEC acknowledges that each adviser must determine whether it has a place of business in the United States based on its own relevant facts and circumstances. However, the SEC does provide some specific examples:

A place of business includes any office from which an adviser regularly communicates with clients, whether they are US or non-US clients.
A place of business includes any office or other location where an adviser regularly conducts research, including research used to produce non-public information relevant to investment decisions and recommendations. While the issue was not addressed in Proposed Rule, the Final Release specifically states that the SEC considers research intrinsic to the provision of investment advisory services.
A place of business does not include an office where an adviser solely performs administrative and back-office activities not intrinsic to the provision of investment advisory services which do not involve communication with clients.