Getting a foreign LLC authorized in West Virginia, one step at a time

A foreign limited liability company must have a certificate of authority to transact business in West Virginia. The statute follows with its list of exceptions. The page on whether you need it prints it, including the entry about a resident employee who works from another state. Only a West Virginia business lawyer can say whether your own company is caught.

Two optional entries come next: the address of an initial designated office in West Virginia, and the name and address of an initial agent for service of process. The designated office need not be the principal place of business. Our firm can serve as the agent, though anyone who qualifies will do. The agent page has the rest.

The form is the statutory application. It covers the company name, its home state or country, the mailing address of its principal office, the name and address of each member with authority to sign, its initial designated office, its initial agent, its duration, whether it is manager-managed, whether members are liable for its debts, its purposes, and an email address for notices. Our page on the form goes through it field by field. An individual member or manager with signature authority must sign and date the form, and an unsigned application is returned as incomplete.

The annual report is $25, due between January 1 and June 30 of each year following the calendar year in which the business was registered. Notification of the filing requirement will be sent, but the company is responsible for filing the annual report as required by the code. A missed deadline can cost the certificate, because the statute lets the state revoke it when a report is 60 days past due.

Some companies do not need the certificate at all. If every activity in West Virginia is on the statute's list, the company is not transacting business there under the statute and may have nothing to register. A company that wants a document on file saying so can apply for exemption on Form LLF-2, Application for Exemption from Certificate of Authority of a Limited Liability Company for $25.

Corporations, limited partnerships and limited liability partnerships register at their own fees: $100, $150 and $500. A corporation delivers a foreign corporation delivers a certificate of existence or a document of similar import, duly authenticated by the Secretary of State or other official of the home state or country.

A certificate dated in an earlier tax year has to be replaced, and the new one has to come from the home state of organization. The application itself can be sent whenever the company is ready.

First, an individual member or manager with signature authority must sign and date the form, and an unsigned application is returned as incomplete. Second, the form lists the members of a member-managed company or the managers of a manager-managed one, with addresses, and rejects an application that leaves them out.

The instructions on the form say that filing the application alone does not qualify a company to do business in West Virginia, which also needs a business license from the Department of Tax and Revenue and any other license its work requires. They also describe how a professional LLC must attach a verification from its state licensing board, and how a protected series must give details of its home series company.

West Virginia measures the certificate's age by the tax year, not by a count of days, which makes the order date matter in a particular way: a certificate dated in the last days of one year is fine for a December filing but wrong for a filing in January. When the application is filed close to the turn of the year, we order the certificate on the day we file.

Two obligations start. The first is the annual report, $25, due between January 1 and June 30 of each year following the calendar year in which the business was registered. The second is the duty to keep the Secretary of State informed when the agent or an office address changes, using Form AAO at $15. Neglecting the second can lead to revocation, and so can neglecting the first.

A veteran-owned company follows the same steps, with one addition at step five: the copy of Form DD214 that proves the owner's status goes in with the application. The test is whether the veteran must be honorably discharged or discharged under honorable conditions, and a publicly owned entity must be at least 51 percent owned by veterans. The waiver covers the registration fee. A certified copy or a faster tier is still charged.

Starting late does not add a fee to the registration itself. The statute's consequences for working here without a certificate are of a different kind, and the penalty page describes them.

The Secretary of State may revoke a certificate of authority for failing to pay fees, taxes and penalties owed to the state; failing to deliver the annual or biennial report within 60 days after it is due; failing to file a statement of a change in the agent's name or business address; a material misrepresentation in a filed record; a revoked professional license that the company needs; or a default with the Bureau of Employment Programs.

A Delaware LLC pays $200 to register, counting the Delaware certificate, and $225 after its first West Virginia report. A Wyoming LLC pays $150 to register and $175 after the first report, because Wyoming prices its certificate at nothing.