Increasingly, US NGOs seek to operate on a global basis. When a US nonprofit expands its activities across borders, whether by making grants or operating programs, the compliance obligations of multiple countries can quickly become overwhelming.
The feasibility of expanding operations into a foreign country also depends on the laws of the target country. Some countries laws governing foreign NGOs are relatively flexible and easy to navigate while others, especially in the developing world, are highly bureaucratic and restrictive.
In the US, our constitution affords NGOs sweeping rights to free expression and to associate with whomever we choose that do not exist in many countries around the world. US NGOs often take these rights for granted and are surprised when they discover foreign laws that restrict their activities in ways they could not imagine at home.
Accordingly, one of the first items of business when considering global expansion is to identify lawyers in the target country who understand the laws that govern the activities of foreign NGOs. Once a team has been assembled, nonprofits dipping their toes into international activity have options that range from relatively low compliance burdens to very high compliance burdens depending on the model they choose.
One of the least difficult ways to make an impact in a foreign country is to make grants to foreign grantees already doing the work your organization wants to support. In the US, 501(c)(3) organizations are required to operate for exclusively tax-exempt purposes, or they risk their tax exemption. Further, if the funds have been earmarked by donors for the foreign organization, the US charity could endanger its tax status, and the US donors could lose their charitable tax deduction.
The US grant-maker should establish policies and procedures to ensure that its cross-border grants are used for their intended purpose and are made under its discretion and control. Some of these requirements are driven by US tax law. Others are inspired by the US Government’s concern that foreign grants could be diverted to fund terrorism. Developing written policies and procedures, including grant agreements designed to ensure funds are used for their intended charitable purposes, will help to ensure compliance with the law.
Note that US charities classified as private foundations must navigate an additional layer of tax rules. Those rules are too complex to be covered in this post, but generally require the foundation to exercise expenditure responsibility, obtain an equivalency determination, or make the grant through a US intermediary.
Collaborating with Another NGO
One way to avoid some of the start-up expenses and quickly operate in a new country is to collaborate with another NGO that is already working in the country, has a similar mission and goals, and is willing to serve as a fiscal sponsor for your program. Doing so will provide valuable experience and reduce the learning curve to operating in a new country. Like fiscal sponsorships in the US, there is typically a cost associated with working with a fiscal sponsor. It is important to conduct due diligence on potential fiscal sponsors to ensure they have the capacity and financial strength to serve as good stewards of sponsored projects and funds.
NGOs that wish to establish an ongoing presence or hire workers in a foreign country will first need to consult with a local attorney regarding legal requirements. Regulation of foreign NGOs, especially in the developing world, can be extremely restrictive compared to the US. Many African and Middle Eastern countries require registration before holding any meetings. Not all countries permit foreign organizations to establish offices. Others allow it but with significant burdens. Typically, the most restrictive countries are in the developing world where nonprofits are most interested in operating. Once an office is established in a foreign jurisdiction, it is subject to all of the laws of that nation concerning hiring, firing, contracts, intellectual property, etc.
Separate Legal Entities
It may be preferable to establish a separate entity in a foreign country. Creating a foreign entity governed by local citizens may be necessary to operate in some countries. Establishing a local entity in the target country can also help to empower the local residents to be more invested in the work of the organization and could help tap domestic sources of funding.
The separate legal entity can be affiliated with the US NGO by contract. Typically such affiliation agreements cover licensing of the name and marks, operating rules, reporting requirements, policies and procedures, dispute resolution and termination provisions. In some countries, the US NGO can have additional protection such as a membership interest with reserved powers or approval rights.
Highly distributed organizations may further create a global umbrella group, typically in a politically neutral jurisdiction such as Switzerland, and permit each global affiliate or each region to appoint a representative to the organization’s board. In this manner, the various global branches can coordinate their mission and strategy.
Depending on the requirements of each jurisdiction, it may make sense to collaborate with another NGO in some countries, open offices in others, and form separate entities for still others. While its ideal to have an operating model that is standard across all jurisdictions, that may not be possible or desirable in all cases.
Ellis Carter is a nonprofit lawyer with Caritas Law Group, PC. To contact Ellis, call 602-456-0071 or email us at firstname.lastname@example.org.