International Practice

# India-USA Cross-Border
Legal Advisory

United States of America

## USA Legal Services

The United States is the single most important international market for Indian businesses, with bilateral trade exceeding $190 billion annually and spanning virtually every sector of the modern economy. Indian IT services companies, pharmaceutical manufacturers, automotive suppliers, and financial institutions have established a commanding presence across the United States, while American technology, defence, energy, and consumer brands continue to deepen their engagements in India. The two nations share the distinction of being the world's oldest and largest democracies, and their economic relationship is underpinned by robust legal frameworks, deep capital market linkages, and a large Indian diaspora of over four million professionals who form a vital bridge between the two economies.

At ESB Global Law Advisory, we provide comprehensive cross-border legal counsel from our Mumbai office for Indian companies, entrepreneurs, and professionals engaging with the US market. Our practice combines a thorough understanding of the Indian legal and regulatory landscape with detailed knowledge of US federal and state law, enabling us to deliver commercially practical advice that addresses the complexities of operating across both jurisdictions. Whether you are incorporating a US subsidiary, securing work visas for key personnel, protecting intellectual property, navigating federal regulatory requirements, or resolving a transatlantic commercial dispute, our team provides strategic guidance through every stage of the process.

### Corporate & Commercial Law

Establishing a corporate presence in the United States requires careful selection of entity type, state of incorporation, and governance framework. We advise Indian companies on forming Limited Liability Companies (LLCs) in states such as Delaware, Wyoming, and Nevada, incorporating C-Corporations for businesses seeking venture capital or planning public offerings, and registering branch offices or representative offices for initial market exploration. Delaware remains the preferred jurisdiction for incorporation due to its sophisticated Court of Chancery, extensive body of corporate case law, and favourable treatment of management-friendly governance provisions. Our corporate practice covers drafting and negotiating articles of incorporation, operating agreements, bylaws, shareholders' agreements, subscription agreements, and SAFE (Simple Agreement for Future Equity) instruments commonly used in US startup financing.

Beyond entity formation, we advise on the full spectrum of US commercial transactions including mergers and acquisitions, joint ventures, strategic alliances, asset purchases, and cross-border restructurings. Indian companies acquiring US businesses must navigate federal and state securities regulations, Hart-Scott-Rodino (HSR) antitrust filings with the Federal Trade Commission, and sector-specific approvals. We also draft and negotiate a wide range of commercial contracts governed by US law, including master service agreements, software licensing agreements, distribution and agency arrangements, supply chain contracts, and service-level agreements, ensuring that provisions on liability, indemnification, governing law, and dispute resolution are properly calibrated for cross-border enforcement.

### Immigration & Business Mobility

Deploying Indian talent to the United States requires navigating one of the most complex immigration systems in the world. The H-1B specialty occupation visa remains the primary route for Indian technology professionals, engineers, and skilled workers, though it is subject to an annual cap of 85,000 visas (including 20,000 reserved for US master's degree holders) and a lottery selection process that has become increasingly competitive. We advise Indian companies on building strong H-1B petitions, including prevailing wage determinations, Labour Condition Application (LCA) filings with the Department of Labor, and responses to Requests for Evidence (RFEs) from USCIS. For multinational companies transferring executives, managers, or employees with specialised knowledge, the L-1A and L-1B intracompany transferee visas provide a direct pathway without the cap limitations of the H-1B.

Indian entrepreneurs and investors have additional options including the EB-5 Immigrant Investor Program, which provides a path to US permanent residency in exchange for a qualifying capital investment that creates American jobs. The E-2 Treaty Investor visa allows Indian nationals to invest in and direct US businesses under the India-US bilateral investment treaty. For individuals with extraordinary ability or achievement in their field, the O-1 visa offers a flexible route that is not subject to annual caps. We also advise on the EB-1 category for multinational managers and individuals of extraordinary ability, the EB-2 National Interest Waiver for professionals whose work benefits the United States, and the practical aspects of maintaining visa status, changing employers, and transitioning from non-immigrant to immigrant status through adjustment of status or consular processing at US Embassies.

### Trade Compliance & Regulatory

Indian businesses operating in the United States must comply with a layered regulatory framework spanning federal, state, and local requirements. At the federal level, key regulatory bodies include the Securities and Exchange Commission (SEC) for capital markets and public company reporting, the Food and Drug Administration (FDA) for pharmaceuticals, medical devices, and food products, the Federal Communications Commission (FCC) for telecommunications, and the Environmental Protection Agency (EPA) for environmental compliance. Indian pharmaceutical companies seeking to market drugs in the US must navigate the FDA's Abbreviated New Drug Application (ANDA) process for generics or the New Drug Application (NDA) process for novel compounds, including facility inspections, bioequivalence studies, and post-market surveillance obligations.

Cross-border trade compliance is an increasingly critical area for Indian businesses. The Committee on Foreign Investment in the United States (CFIUS) reviews acquisitions and investments by foreign entities for national security implications, and Indian companies acquiring US businesses in sensitive sectors such as defence, technology, telecommunications, and critical infrastructure must assess whether a CFIUS filing is mandatory or advisable. Export control regulations administered by the Bureau of Industry and Security (BIS) under the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) govern the transfer of controlled technologies and defence articles. We also advise on US sanctions compliance under the Office of Foreign Assets Control (OFAC), customs and tariff classification, anti-corruption obligations under the Foreign Corrupt Practices Act (FCPA), and anti-money laundering requirements under the Bank Secrecy Act.

### Intellectual Property

The United States offers one of the most robust intellectual property protection regimes in the world, making IP strategy a central concern for Indian businesses entering the US market. Patent protection is obtained through the United States Patent and Trademark Office (USPTO), with options including utility patents, design patents, and plant patents. Indian companies can file provisional patent applications to establish an early priority date while developing their full patent claims, and can leverage the Patent Cooperation Treaty (PCT) to coordinate filings across the US and other jurisdictions. The America Invents Act (AIA) shifted the US to a first-inventor-to-file system, making timely filing essential. We advise on patent prosecution, claim drafting, prior art searches, inter partes review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB), and patent litigation strategy in federal district courts and the International Trade Commission (ITC).

Trademark protection in the US follows a use-based system, meaning that rights are primarily acquired through actual use in commerce rather than registration alone. However, federal registration on the USPTO's Principal Register provides significant advantages including nationwide constructive notice, a legal presumption of validity, and the ability to record marks with US Customs and Border Protection to block importation of infringing goods. Indian companies can use the Madrid Protocol to extend their Indian trademark registrations to the US. We also advise on copyright registration with the US Copyright Office, trade secret protection under the Defend Trade Secrets Act (DTSA) and state Uniform Trade Secrets Acts, and the negotiation of IP licensing agreements, technology transfer arrangements, and joint development agreements that properly allocate ownership and exploitation rights across both jurisdictions.

### Dispute Resolution

Commercial disputes between Indian and US parties are resolved through a range of mechanisms depending on the contractual framework, the nature of the claims, and the enforcement considerations in each jurisdiction. International arbitration is the preferred method for significant cross-border disputes, with the American Arbitration Association (AAA) and its International Centre for Dispute Resolution (ICDR) being the most commonly used institutions for India-US matters. Arbitration offers advantages including procedural flexibility, confidentiality, the ability to select arbitrators with relevant expertise, and the enforceability of awards across borders. Both India and the United States are signatories to the New York Convention, which facilitates recognition and enforcement of arbitral awards, and Indian courts have taken an increasingly pro-enforcement stance under the Arbitration and Conciliation Act, 1996.

Where litigation is necessary or contractually mandated, US federal courts have jurisdiction over matters involving diversity of citizenship between parties from different countries or raising federal questions under US statutes. State courts handle matters governed by state law, including contract disputes, tort claims, and business dissolution proceedings. Key considerations for Indian parties involved in US litigation include personal jurisdiction analysis, service of process under the Hague Service Convention, discovery obligations (which are significantly broader in the US than in India), and the enforcement of US judgments in India. We also advise on mediation as an alternative to adversarial proceedings, emergency and interim relief mechanisms including temporary restraining orders and preliminary injunctions, and coordinated multi-jurisdictional dispute strategies where proceedings may be ongoing in both India and the United States simultaneously.

### Tax & Cross-Border Structuring

The tax landscape for India-US cross-border operations is governed by the domestic tax laws of both countries and the India-US Double Taxation Avoidance Agreement (DTAA). The DTAA allocates taxing rights between India and the United States on various categories of income including business profits, dividends, interest, royalties, capital gains, and income from independent and dependent personal services. It provides reduced withholding tax rates on cross-border payments and mechanisms for relief from double taxation through foreign tax credits. A critical issue for Indian companies with US operations is the determination of Permanent Establishment (PE) status under both the treaty and domestic law, as the existence of a PE triggers US tax filing obligations and subjects business profits attributable to the PE to US federal and state income tax.

We advise Indian businesses on structuring their US operations to optimise their tax position while maintaining full compliance with the Internal Revenue Service (IRS) and Indian income tax authorities. Key areas include transfer pricing compliance under IRC Section 482 and the OECD Transfer Pricing Guidelines, which require that transactions between Indian parent companies and US subsidiaries be conducted at arm's length prices supported by contemporaneous documentation. We also address withholding tax obligations on payments to Indian entities, the Global Intangible Low-Taxed Income (GILTI) provisions that may affect Indian parent companies with US subsidiaries, state and local tax (SALT) obligations including nexus analysis and apportionment, and the interaction between US and Indian controlled foreign company rules. Our integrated approach ensures that cross-border tax structuring aligns with commercial objectives, withstands regulatory scrutiny, and avoids double taxation through proper treaty application.

### Our India-USA Legal Services Include

- US entity formation including LLC, C-Corp, and S-Corp incorporation in Delaware, California, New York, and other states
- Shareholders' agreements, operating agreements, SAFE instruments, and corporate governance documentation
- Mergers, acquisitions, joint ventures, and Hart-Scott-Rodino antitrust filings
- Commercial contract drafting and negotiation under US federal and state law
- H-1B, L-1, EB-5, E-2, O-1, and other work visa and immigration advisory
- Green card processing, adjustment of status, and consular processing coordination
- CFIUS review assessment and national security compliance for foreign investments
- FDA, SEC, FCC, and EPA regulatory compliance and approval processes
- Export control compliance under EAR and ITAR, and OFAC sanctions screening
- USPTO patent and trademark prosecution, IP portfolio management, and licensing
- Trade secret protection and IP enforcement before federal courts and the ITC
- AAA/ICDR arbitration, ICC arbitration, and US federal and state court litigation
- India-US DTAA advisory, transfer pricing compliance, and cross-border tax structuring
- FCPA anti-corruption compliance and internal investigation support
- US data privacy compliance including CCPA, state privacy laws, and cross-border data transfers

FAQ

## Frequently Asked Questions

### How can an Indian company set up a business entity in the United States?

An Indian company can establish a US presence by forming a Limited Liability Company (LLC), incorporating a C-Corporation (C-Corp) or an S-Corporation, or registering a branch office of the Indian parent entity. The most common choice for Indian businesses is the Delaware C-Corp due to its well-developed body of corporate law and investor familiarity, or a state-specific LLC for operational flexibility and pass-through taxation. The process involves filing articles of incorporation or organization with the relevant Secretary of State, obtaining an Employer Identification Number (EIN) from the IRS, opening a US bank account, and registering for state and local taxes. ESB Global advises on choosing the optimal entity type, state of incorporation, and corporate governance structure based on the nature of the business, fundraising plans, and long-term expansion strategy.

### What visa options are available for Indian professionals and entrepreneurs moving to the USA?

Indian professionals and entrepreneurs have several visa pathways to the United States. The H-1B visa is the most widely used route for specialty occupation workers in fields such as technology, engineering, finance, and healthcare, though it is subject to an annual cap and lottery system. The L-1 visa allows Indian companies to transfer managers, executives, or employees with specialised knowledge to a US subsidiary or affiliate. The EB-5 Immigrant Investor Program offers a path to permanent residency for investors who commit a minimum capital investment in a new commercial enterprise that creates at least 10 full-time jobs. The E-2 Treaty Investor visa is available for substantial investments in US businesses under the India-US bilateral investment treaty. Other options include the O-1 visa for individuals with extraordinary ability, the B-1 visa for short-term business visits, and the EB-1 and EB-2 categories for priority workers and professionals with advanced degrees.

### How does the India-US Double Taxation Avoidance Agreement (DTAA) benefit Indian businesses?

The India-US DTAA prevents the same income from being taxed in both India and the United States. It provides reduced withholding tax rates on cross-border payments of dividends, interest, and royalties between Indian and US entities. The treaty also establishes rules for determining Permanent Establishment status, which is critical for understanding when an Indian company's US activities trigger a US tax filing obligation. Indian businesses can claim foreign tax credits in India for taxes paid in the US, and vice versa, avoiding economic double taxation. The DTAA also includes provisions on the taxation of capital gains, independent personal services, and business profits that directly affect the structuring of India-US operations. ESB Global advises on treaty interpretation, transfer pricing compliance, and optimal structuring to maximise DTAA benefits while maintaining full compliance with both the IRS and Indian income tax authorities.

### How can Indian businesses protect their intellectual property in the United States?

Indian businesses can protect their intellectual property in the US through registrations with the United States Patent and Trademark Office (USPTO) for patents and trademarks, and with the US Copyright Office for creative works and software. Patent protection requires filing either a provisional or non-provisional patent application, followed by examination and prosecution before a USPTO examiner. Trademarks can be registered on the Principal Register for maximum protection, including nationwide constructive notice and the ability to record marks with US Customs and Border Protection to prevent importation of infringing goods. Indian companies with existing Indian IP registrations can leverage the Patent Cooperation Treaty (PCT) for international patent filings and the Madrid Protocol for international trademark registrations designating the US. The US also provides robust trade secret protection under the Defend Trade Secrets Act of 2016. ESB Global advises on comprehensive IP strategies covering filing, prosecution, licensing, enforcement through the International Trade Commission (ITC) and federal courts, and portfolio management across both jurisdictions.

### How are India-US commercial disputes typically resolved?

India-US commercial disputes are resolved through several mechanisms depending on the nature and value of the dispute and the contractual provisions agreed by the parties. International arbitration is the preferred method for significant cross-border disputes, commonly administered by the American Arbitration Association (AAA) and its international division (ICDR), or under the rules of the International Chamber of Commerce (ICC). Arbitral awards issued in the US are enforceable in India under the Arbitration and Conciliation Act, 1996, as both countries are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. For matters requiring judicial intervention, litigation may proceed before US federal courts or state courts. Mediation is increasingly used for commercial disputes where preserving business relationships is important. ESB Global assists Indian clients in drafting effective dispute resolution clauses, representing their interests in US-seated arbitrations, and coordinating enforcement proceedings across both jurisdictions.

Explore More

## Other International Jurisdictions

🇬🇧

### United Kingdom

Company incorporation, commercial contracts, immigration, and arbitration for Indian businesses in the UK.

Explore
🇩🇪

### Germany

GmbH formation, employment law, EU trade compliance, and IP protection for Indian businesses in Europe's largest economy.

Explore
🇨🇳

### China

WFOE formation, Chinese commercial law, IP enforcement, and trade compliance for Indian businesses in China.

Explore
🇯🇵

### Japan

KK and GK company formation, Japanese regulatory compliance, IP strategy, and dispute resolution for Indian businesses.

Explore
🇦🇪

### UAE

Free zone and mainland company formation, golden visa advisory, and commercial law for Indian businesses in the UAE.

Explore
🇰🇷

### South Korea

Korean entity formation, regulatory compliance, technology partnerships, and IP protection for Indian businesses.

Explore
🇱🇰

### Sri Lanka

Company registration, BOI approvals, bilateral trade compliance, and commercial advisory for Indian businesses in Sri Lanka.

Explore
US Operations?

## Expert India-USA
Legal Counsel

Navigate the US legal landscape with confidence. Our cross-border team provides strategic counsel for Indian businesses at every stage of their United States operations.

Book Consultation
All International Services