Delaware Company Registration for Non-U.S. Residents

What’s a Delaware Registered Agent?

Almost all companies registered at the state level in the U.S. are required to have what’s known as a registered agent on file with the Secretary of State (or equivalent office). A registered agent is a person or an entity that accepts important legal or state documents on your behalf then forwards those documents on to you (the business) in a timely fashion. It’s essentially a level of security for the state to ensure that important forms, messages, and legal notices are received by someone, so nothing big slips through the cracks.

In this sense, having a reliable registered agent is crucial. This person or entity must be available during normal business hours and they must be physically present here in Delaware. We provide Delaware Registered Agent service from our home office right here in the heart of Dover, DE. As our client, you get a free online account where we’ll upload all service of process and correspondence from the state right away. You’ll get email notifications when you receive a new message, and be able to keep track of everything all in the same interface. Best of all? Our service is only $29 a year!

Differences between a Delaware LLC and a Delaware Corporation

With a Delaware LLC, ownership comes in the form of membership interests. In other words, the members of an LLC are also the owners.

With a Delaware corporation, ownership comes in the form of shareholder stocks. These stock certificates do not need to be physically made and distributed. They can just be logged on an internal company record that keeps track of how many stocks each shareholder owns. The shareholders, in turn, elect the directors of the corporation, and the directors elect the officers (such as president, treasurer, and secretary).

D.I.Y. Guide: How to Register a Business in Delaware as a Non-U.S. Resident

1. Name Your Company
2. Hire a Delaware Registered Agent
3. File Certificate of Incorporation or Certificate of Organization
4. Obtain an EIN
5. File a Beneficial Ownership Information Report

In Delaware, an LLC or Corporation is formed with the Delaware Division of Corporations, making Delaware your “domestic state.” Outside of your “domestic state” (in this case: Delaware), your Delaware LLC or Delaware Corporation will be considered a “foreign entity.” For example, if you form a corporation in Delaware and plan to do business in Pennsylvania, your company will be considered a Foreign Corporation in Pennsylvania.

The process for starting a business in Delaware is nearly the same process that a U.S. citizen would go through:

1. Name Your Company

Find a name for your business by performing a name availability search on the Division of Corporation’s website. Once you’ve found an available name, you are NOT required to reserve it. The name will automatically belong to your business entity once Delaware has recorded your company’s LLC or corporation filing.

What is an entity name reservation, and when would I need to do that?

Reserving an entity name with the Delaware Division of Corporations prevents other businesses from using that name. This could be a good option if you’re not quite ready to file your formation documents, but want to make sure your desired name remains available to you.

You can do this by filing a Name Reservation Application with the Delaware Division of Corporations. Whether you’re reserving a corporation name or reserving an LLC name, the state charges a $75 fee to retain your name for up to 120 days.

2. Hire a Delaware Registered Agent

You must maintain a Delaware registered agent at all times to keep your Delaware company in good standing. (Being in “good standing” essentially means maintaining the ability to legally operate in the state.) Since most of our foreign clients don’t maintain a residence in the United States (let alone in Delaware), the easiest way to secure a registered agent is to hire a professional registered agent service.

Having a registered agent is required by law and must maintain a physical address and keep regular business hours in the state, which, since you do not live in the United States, are requirements you cannot meet.

Who can serve as a registered agent?

Technically, anyone over the age of 18 with a full-time address in Delaware can be your registered agent. This means you could try to list a relative or friend as your registered agent, but doing so comes with some risk.

For one thing, this person would need to be available at their listed address during regular business hours. Plus, being a registered agent would involve them in your personal business notifications and put an unneeded burden on them to legally accept your legal documents. If that’s not enough to deter you, consider this: your registered agent’s name and address become part of the public record, meaning their personal contact information is there for anyone with an internet connection to find.

A better option? Pay $29 a year for the safety and security of a professional.

3. File Certificate of Incorporation or Certificate of Organization

The name of the formation document you’ll need to file depends on the type of entity you plan to form.

• A Certificate of Incorporation is for a corporation.
• A Certificate of Organization is for a Limited Liability Company (LLC).

Many foreigners choose to form a corporation because, in most cases, corporations are better aligned with other country’s rules and regulations.

What do I need to include on Delaware business formation documents?

Whether you’re forming a corporation or an LLC, you’ll need to include the same basic information:

• Name of Entity
• Name and Address of Registered Agent
• Signature from an Authorized Person

In addition to the above, corporation’s also need to include:

• Total Number of Authorized Stock
• Name and Address of Incorporator

How do I submit my formation documents to the Delaware Division of Corporations?

You can file these documents with the state, by mail, in person, or online.*

By Mail or In Person:
Delaware Division of Corporations
401 Federal Street – Suite 4
Dover, DE 19901

Online: DCC Document Filing

Filing online is only available during the following times:

• Monday – Thursday: 7:45 a.m. – 11:59 p.m. (EST)
• Friday: 7:45 a.m. – 10:30 p.m. (EST)
• Closed on weekends and holidays.

* Note that online filings use a document upload system, which still require you to fill out a paper form.

4. Obtain an EIN

In order to file and pay taxes in the United States, your Delaware company will need to obtain Employer Identification number (EIN). After the state sends verification that your articles of organization (LLCs) or articles of incorporation (corporations) have been processed, you can apply for an EIN by filing Form SS-4 with the Internal Revenue Service (IRS). The IRS accepts EIN applications online, by phone, or by mail. The form is one page and comes with clear-cut instructions.

5. File a Beneficial Ownership Information Report

Most foreign businesses operating in the US must file a Beneficial Ownership Information (BOI) report with the Financial Crimes Enforcement Network (FinCEN) starting January 1, 2024. You’ll have 30 days to file this report after registering to do business stateside. (Though businesses formed in 2024 have 90 days to file.)

On the plus side, you can file this report online for free, and the information you provide will not be made available to the public.

What do I include in a BOI report?

Your BOI report must include information about your company, your beneficial owner(s), and your company applicant(s).

A beneficial owner is anyone with substantial control over business decisions or who owns 25% or more of the company. Your company applicant is the person who files your registration documents.

We know it can seem like a hassle to form a business when you have to keep track of so many filings, but that’s why we’re here. As business formation experts, we’ll form your business and make sure you have all the tools you need to succeed in Delaware. For just $25, we’ll take care of your BOI report for you.

What to Know About Maintaining Your Business

Annual Filings

In order to keep your business entity active, you’ll need to keep up with the state’s mandatory, annual filings. Note that the requirements are different for corporations and LLCs.

• Corporations must file an Annual Report and pay a Franchise Tax.
• LLCs only need to pay an Annual Tax of $300—they do not need to file an annual report.

Annual reports and Delaware Corporate Franchise Taxes (a minimum of $175) are due each year by March 1, and the LLC annual tax is due each year by June 1.

Opening a bank account

One of the most commonly asked questions about forming a business in the United States from abroad is how to open a business bank account. Opening a U.S. bank account is difficult if you are not here. Most people actually have to fly into the U.S. and physically walk into a branch to set up an account. The good news, however, is you don’t need to open a business bank account in the state where you formed your company.

We do not assist in setting up U.S. bank accounts. (Frankly, no one can really help you do that very well.) However, when you form your business with us, you’ll get access to all the business documents you’ll need to set up a U.S. bank account, like Corporate Bylaws or an LLC Operating Agreement.

Paying U.S. taxes as a Nonresident

Non-U.S. citizens cannot be shareholders in a company that has S-corp tax status, which means:

• Corporation. If you own a corporation you’ll need to be taxed as a C-corp (the default tax designation).
  
  You’ll pay the same taxes that any other U.S. corporation would on all U.S.-sourced income. Your Delaware corporation would also be taxed on all foreign earnings, in accordance with U.S. Treasury regulations. Since your corporation will have been formed in the United States, it will be taxed as a domestic corporation, which means you’ll have to file Form 1120.
• Limited Liability Company. If you own an LLC, you can choose to be taxed as a partnership (the default tax designation for multi-member LLCs) or a disregarded entity (for single-member LLCs). Alternatively, an LLC can choose to be taxed as a C-corp.
  
  As a non-U.S. resident, your Delaware LLC will only be taxed on income from U.S. sources, meaning that income from other countries will not be factored into what you owe. Any profits from U.S.-sourced income will be taxed by 30%. At the end of the year, you will file your U.S. taxes on Form 1040-NR.
  
  Unlike corporations, LLCs must designate a tax withholding agent to calculate the proper amount that must be sent to the IRS before any money can be released. Because of these difficulties, many non-U.S. residents choose to form corporations. However, the benefit of an LLC is that you can do business strictly outside of the U.S. without owing any U.S. taxes.

Helpful Tips for Starting a Business in Delaware as a Non-U.S. Resident

• You only need one person to start a Delaware LLC or Delaware corporation. There is no need to gather multiple people before you begin the formation process.
• Delaware doesn’t ask for personal information on your formation documents, so there is no need to pay a company a high fee for nominee service.
• You get a federal tax ID yourself, or you can hire us to do it for you when you sign up for formation service.
• If you need an apostille, you can add that at the bottom of our sign up form, too.
• If you want a corporate book and seal, you can add that to your order at the bottom of the sign up form.