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If you’re forming a new LLC or expanding the owners of an existing one, it’s important to know exactly who can be a member of an LLC. With LLCs diversifying their investors and ownership around the world, non-resident aliens and non-U.S. citizens may be interested in becoming an LLC member.
Can Non-U.S. Citizens Be Members of an LLC?
Yes. Typically, there are no restrictions on who can own and form LLCs in the United States. This means that citizens of other countries can create, own and be a member of a U.S.-based LLC. They do not need to be U.S. citizens. U.S.-resident aliens can also create, own and be a member of an LLC without restriction.
Can Non-Resident Aliens Be Members of an LLC?
Yes. The same options that apply to non-U.S. citizens being able to own an LLC also apply to non-resident aliens. This means non-residents can create, own and be a member of a U.S.-based LLC.
Can a Non-U.S. Business or Entity Create and Run a U.S. LLC?
Yes. Typically, there are no restrictions on foreign entities and businesses forming, owning and running an LLC in the U.S.
Can a U.S.-Resident LLC Owner Have LLC Members That Are Not U.S. Residents or Citizens?
Yes. The nationality of an LLC’s business owner has no impact on who else can have ownership in an LLC.
Who Can Be a Member of an LLC?
The following individuals and entities can form, run and own U.S.-based LLCs:
- U.S. citizens
- U.S. residents
- Non-U.S. citizens
- Non-resident aliens
- U.S. business entities
- Non-U.S. business entities
Please note that the U.S. may have sanctions, disputes or disagreements with some countries that may impact LLC ownership. If you’re considering ownership from a country that may fall into these categories, check with an international business attorney to see how you might be impacted.
What Are the Main Practical Challenges of Having Non-U.S. LLC Members?
There are several areas you will want to be aware of.
LLC Formation Rules
LLC formation rules vary from state to state. For example, some states will require you to have your company formation documents signed, witnessed and notarized. Some other states may have minor restrictions on ownership. Always check LLC rules for company formation on your state’s website.
LLC Registered Agents
Every LLC must have a Registered Agent that is resident in the U.S. state(s) where the LLC operates. If you are not a resident there yourself, you can use a Registered Agent service to meet these requirements.
Professional Certification and Requirements
If your LLC provides certain professional services, then LLC members may be required to be certified in the U.S. to provide such services. For example, if you’re running a physician business, then all members may require a U.S.-based medical certification. These requirements do vary between states and professions, so always check with official sources.
Every LLC owner must have a Taxpayer Identification Number (TIN). For individual U.S. citizens and residents, that will typically be a Social Security Number (SSN). For U.S.-based businesses, it will often be an Employer Identification Number (EIN).
Certain states will also have taxpayer-identification rules that you will need to follow.
Visa to Work in the U.S.
If a non-resident alien or foreign citizen wants to work in the U.S. for a business, including one they own, they will require a working visa. Speak with a business attorney to learn more.
No S Corporation Tax Election
Some LLCs may choose to be taxed as an S Corporation to reduce the amount of self-employment tax they pay. One of the restrictions is that an S Corporation cannot have non-U.S. resident alien owners. This means an LLC with foreign owners cannot choose this tax election.
What Are the Tax Implications for Non-U.S. Resident Owners of an LLC?
Normally, an LLC member, wherever they are located, will need to pay U.S. taxes on any LLC profits earned in the U.S., specifically if they are “engaged in a trade or business in the United States.” This means:
- Filing the relevant tax returns and forms with the IRS and states where you do business, including Form 5472, Information Return of Foreign-Owned U.S. or Foreign Corporation Engaged in a U.S. Trade or Business.
- Paying taxes on income earned in the U.S. These taxes may include federal taxes, state taxes and other taxes.
- Paying estimated taxes on expected and actual earnings, four times a year.
- Reviewing tax treaties between their country and the U.S. to see what agreements there are on double taxation or other compliance.
Please bear in mind that there can be exceptions to these guidelines. Always check your circumstances with a specialized attorney or accountant.
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