FORMING A US CORPORATION
Many foreign nationals have asked us questions about forming a corporation. Therefore, we would like to answer some of these questions. However, please remember that individual cases usually require specifically tailored answers.
Can Foreign nationals start a corporation in the United States?
Yes, ‘typically’ a foreign national can form a US corporation. The corporation will be formed by an ‘incorporator’ which is often a company or a lawyer, who will then resign in favor of the shareholders (owners) of the corporation. The corporation will be registered with the Secretary of State, Division of Corporations. The name of the proposed corporation should be checked with the Secretary of State for availability. No two corporations may have the same name, or closely similar names. The corporate name must include the word “corporation,” “incorporation,” “company” or such other word or abbreviation, such as “Inc.” or “Corp.” to indicate that it is a corporation. The shareholders (owners) need not be identified or registered. The shareholders can be individuals or other corporations, including foreign corporations. At least one director must be shown in the ‘Articles of Incorporation’. One person or a number of people can hold all corporate positions and titles: director, president, secretary and treasurer. That person or persons need not be residents of the United States and can conduct business from outside of the United States. It is required that the corporation always identify a “registered office” in the U.S. and a “registered agent” who must be a resident of that State.
How much capital is required?
In certain circumstances it can be done with as little as $100 capital (although typically a larger investment is required). This would work out for example, $1 value per share for 100 shares. Therefore, a large capital investment is not always necessary in the United States.
What are the types of corporation that can be formed?
There are three types of corporations: A “C” corporation is responsible for the debts of the corporation, but not the individual shareholders. The net profits are taxed and the dividends are paid to the shareholders who may have to report the dividends as income. “S” corporations have the same functions and benefits as “C” corporations, except that they can have no more than 35 shareholders and that the shareholders must be U.S. residents for tax purposes. Holders of an E-2 investor visa, L-1 visa and even B-2 tourist visa, if they pay taxes in the U.S., can qualify to be shareholders of an “S” corporation. The main advantage of the “S” corporation is that the corporation’s net profits are passed on to the shareholders and are not taxable to the corporation. A Limited Liability Company (LLC) is a corporation with limited liability, similar to a “S” corporation, yet with several significant differences. One major difference is that it requires at least two persons to form an LLC. The owners need not be U.S. citizens or U.S. taxpayers. There are a number of other differences that cannot be fully addressed in this article. Whether or not an LLC qualifies to be taxed like an “S” corporation should be discussed with a tax advisor.
Must I live in the United States?
No. A person can ask an incorporator to form the corporation without being in the U.S. The incorporator can sign the articles of incorporation. The president and secretary must sign the shares giving ownership to the shareholders. Later the shareholder can sign documents at the required annual meeting.
Social Security or Tax Number…How do I get one?
Social Security Numbers are available only to U.S. citizens, Green Card holders or people holding a U.S. visa which allows them to legally work in the US. Others may apply for a Taxpayer Number from the Internal Revenue Service if they must file a U.S. tax return. Corporations must apply for a Taxpayer Identification Number with the Internal Revenue Service. The application must be signed by an official of the new corporation. If that person does not have a Social Security Number, then a copy of his foreign passport must be attached to the application. If the corporation will sell products to the general public, it must also apply for a Sales Tax Number from the State Department of Revenue and collect sales tax. Businesses are also required to hold a Business License available from the city where the business is located.
Must I open a business in the United States?
No, it is not required that corporations operate a business. You can incorporate yourself which may be used for the sole purpose of owning real estate. However, an active business must be established to qualify for an E-2 Investor or L-1 Intra company transfer although this business could be a real estate investment or activity corporation.
Can a foreign national invest money in any venture?
A person on an H1B or other temporary work visa in the United States can legally invest in any venture or company. You can start to undertake volunteer work on behalf of the venture or company at any time. However, you are not allowed to work on a full-time basis for that company and earn a salary until obtaining prior approval from the INS or DOL to work for that venture or company. In order for the person on an H1B to work for another company or employer, the person is required to obtain a concurrent H1B approval to work for the new entity, in addition to the present employer.
Hope this is Helpful to millions of non-immigrants here in USA.
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