Foreign entity wants to provide 401K plan to US employees. Trustee?

Shoe company based in the UK and has US employees. The US operations have an EIN and US address based in Portland. The owners reside in the UK and are not US citizens. All US based employees are US citizens and earn W2 compensation. They are wanting to set up a 401(k) plan with ADP and the ADP sales rep is telling them that they can indeed do this. Our hesitation is that there would be no US citizen who would serve as the plan’s trustee.

I'm reading a previous post from 2020 that speaks to this. In reading the treasury reg, specifically 301.7701-7(d)(1)(v) Example 5, it seems that it is permissible to use a directed trustee, as provided by ADP but I am not sure if I am missing something. Our other hesitation is due to receiving conflicting, and gray area guidance from other practitioners.

I’m sorry but I am thoroughly confused at this point. If the plan uses a directed trustee, does that satisfy, both the “control” and “court” tests and can they set up a plan?

Sorry for my ignorance, we just want to do what is right.

If it's a corporate trustee where investments are directed by the participants (i.e., a typical 401(k) plan) then there should be no issues. 

And that is what I thought as well but again, conflicting information from others. This is what I got from ascensus. 

The plan sponsor will be required to designate least one or more US persons from their organization to have authority over the plan. Please see below. 
 
 Trust: Plan must establish trust to receive contr. and hold assets; Tax-exempt under 501(a)
- Trust must be created / organized in US (domestic) (401(a)); Generally not Fiduciary since ER has discr.
   + Domestic if Ct. in US has primary juris. over admin. of trust AND
   + One or more US persons must have authority to control all substantial decisions of trust (7701(a)(30))
        - US person is a citizen or resident of US (7701(a)(30))
            + Domestic corp. is a US person (301.7701-7)
        - Authorized signers of a directed trustee would be the decisions makers for the trust
        - Trustee not defined in IRC or ERISA for QRPs; State law controls if valid trust established unless
             federal law supersedes (RR 81-114)
            + Trust instrument needs to name Trustee in accordance with state law of trust

It’s possible to outsource to a Bank Trustee Service under a discretionary trustee arrangement.  A directed trustee, such as Ascensus Trust Company, would not meet the requirements.  The company would need to consult with their legal counsel on such an appointment.

Without commenting on which, or whether any, description of the law is right or wrong:

Consider that each of ADP or Ascensus routinely asserts it does not provide tax or legal advice.

Recordkeepers and other service providers use plenty of smart people, who often know as much or more law than lawyers in law firms.

But evaluate whether it’s prudent to follow legal advice from a person that denies that it provides legal advice.

Another way of stating Peter's excellent advice is, "This plan sponsor should get the advice of competent independent ERISA counsel."

Thank you for your input everyone ☺️