I know this is a very important part in a startup’s journey if they want to have a strong base in US. For foreigners incorporating in USA, it’s pretty easy but can seem tough if you haven’t interacted with people who have done it earlier or you’ve read about it on the internet.
That’s why I thought I should share on how I did it completely, so the coming entrepreneurs can do it very easily just by following these steps.
First of all, just don’t listen to guys who say it’s not possible or very difficult to incorporate in US as a foreign national. Many say you need atleast one US citizen as your co-founder to do so which is total crap. It’s pretty interesting & easy to do this entire process. It’s just that, you need to be EXTREMELY careful on how to do it and what to do.I didn’t have much information on how to do it and had to spend hours trying to understand what these terms like vesting, stock, acceleration, cliffs, section 83(b) meant. Because they’re really important.
Don’t get scared if you don’t know any of the above terms because that’s why I’m here for you.
I’ll explain each process, why it’s important, where to find what thing, etc.
There can be bunch of other reasons for you to incorporate, but most foreign entrepreneurs I’ve seen that have incorporated in US, only did to integrate a payment gateway from a US based company or may be they just wanted to start their new base there as they raised funding.
You know your situation better and you should decide whether you should or not.
1. Choose which type of company you want to incorporate
Most foreign-based startups incorporate in the US as a C-corporation, Since LLC may require them to file a US personal income tax return and as they are ‘pass through’ tax vehicles meaning that the individuals have to pay any taxes for the entity.
Also S-corporation needs founders to be U.S. Citizens or residing in the U.S.
So certainly C-corp looked as the solution.
You should decide yourself but we chose C-corp and most do the same.
2. Which state to incorporate in
Most companies do in Delaware state. I did too. After a lot of reasearch, I didn’t find anyone saying why not to choose Delaware. Hence i chose it finally.
3. Hiring a lawyer/company to do the entire incorporation
I hugely recommend hiring a lawyer for this entire process because it’s really time saving, stress-free, and plus you’re on a safe side by taking an experienced lawyer who is doing this since years and who is an US citizen who knows all the laws and regulations. You can ask them a ton of doubts (which i did a lot) and they’re there to help.
I would suggest not to go for heavy-weight corporate companies that give incorporation packages. Instead go for individual lawyers because they are very supportive, interactive and do clear all your doubts.
I chose Ryan Roberts as i heard a lot about him on blogs. He’s an awesome fellow and I had no problem letting him do our incorporation. I ask too many questions and bothered him a lot. But he answered every question precisely. You can look for other guys offering to do the incorporation, but if you wanna make it fast, just go ahead with him. He’s pretty helpful and professional.
He charged me a basic $1000 incorporation package which includes doing the entire incorporation in Delaware, receiving incorporation docs on my behalf like stock purchase agreements, certificate of incorporation, etc. and sending them back to your email (everything happens online, hence pretty smooth).
Plus u’ll need to pay $148 as a incorporation fee to Delaware state, and $50 as a Registered agent fees (Harvard business services) which the lawyer will guide u about.
Lawyer fees $1000 + Incorporation fees $148 + Registered agent fees $50
Total incorporation fees = $1198
The incorporation process takes maximum 10 business days to complete. Within 10 days u’ll have all docs in hand with your company registered. Sometimes it might even take just 7 days.
4. Once you hired the right lawyers, they’ll send you the documents to sign which will include important things like the proposed company name, division of shares between founders, current address, and some unheard things like vesting, cliff,etc.
If you don’t know what vesting and cliff means, please see these links: 1, 2, 3.
After reading those, I hope you are comfortable to decide what vesting schedule to take for all founders.
In the above articles, you might have read something called Section83(b) election form that you must fill and submit to IRS (Internal Revenue Service).
PLEASE PLEASE PLEASE do not forget to do that within 30 days of your day of incorporation. Otherwise you’re as equal as fucked after one month due to taxes (I’ll tell more on how to fill, and why to fill below.) Don’t mean to scare you just making sure you got the importance of it coz it’s a pretty big deal.
5. Submitting section 83 (b) election form
After you receive all your incorporation docs and you complete them by signing all of them as told by lawyer, there are a couple of things to be done.
When you receive your company docs, there’ll be a restricted stock purchase agreement. In the end, it’ll have an Exhibit D which is the Section 83(b) election form that u need to submit to the IRS.
It looks much like last 3 pages of this link.
If there’s more than one founder, all need to submit their individual section 83(b). Though all can submit in one sealed envelope via certified courier.
Please send this doc via a very trusted courier service. And don’t forget that this doc needs to be sent within 30 days from the date of incorporation.
Again, don’t mess this up. If you’re confused ask your lawyer a 100 times but do this right.
6. Employee Identification Number (EIN)
EIN is a unique number issued to every US company for the purpose of tax administration. It is must for every company, without which u cannot open a bank account or do almost any other operations. It’s pretty much easy to get with just 30 minutes of work.
You just need to fill the SS4 form (just google it)fully and then call the Internal Revenue Service (IRS) and say that u wanna create an EIN for your company. they’ll ask u same questions which u filled in the SS4 form and after u answered them, the person will give u the EIN immediately.
The SS4 is filled just so that you’re ready to answer questions on phone and you don’t need to think at the time when you’ve been asked the questions.
You can call the IRS on +1-267-941-1099 for any queries realted to EIN
I used this number when I incorporated in August 2013.
7. Individual Taxpayer Identification Number (ITIN)
ITIN is issued to people who cannot apply for a Social Security Number(SSN). ITIN is required for a foreign naitonal to pay taxes. There’s no need to apply for ITIN immediately. All founders can apply for it when you first need to pay your taxes (usually March).
And remember that ITIN takes around 1-3 months to receive. So all the places where u need to provide SSN/ITIN (usually while applying for EIN, filling section83b, and paying personal income tax), you can write ‘applied for’, even if you’ve not applied (lawyer will suggest the same too)
After u receive ITIN, you can just call IRS to update EIN with your ITIN.
Also remember, whenever you have any kind of doubts, just call the IRS on above mentioned number and they’re ready to help. Their service is awesome.
8. Getting a company mailing address
After incorporation is done, you might need an actual address to receive some documents or to just mention it on various forms etc. For this you can use a mail forwarding address that is given by many companies. I chose $5 per month package from www.virtualpostmail.com which is very cost-saving and smooth. Whenever i receive any docs at our address, they scan it, and mail us back on our email.
9. Getting a US phone number
To get a US phone number, I just took a Skype phone number for $18 for 3 months. You can choose the area code, your new phone number, and within minutes, you’ll have your US phone number. You can then add some credit to your Skype account in case you want to make outgoing calls with it or just keep receiving calls on it for free.
There are several other ways to get a phone number like Google voice, AT&T etc but I found Skype quite easy as we’re use to using it and serves the basic need of receiving and making calls.
In case you need a Toll free number, then you can just google it and get the appropriate one. I didn’t need one, hence I didn’t search for it.
10. Getting a US bank account
This is the only tricky part. Most banks like Citibank, HSBC, Wells Fargo, Bank of America don’t let you open bank accounts online. They need you in person to verify your documents and that you exist.
It was pretty annoying to call up every bank and hear that we need you in person.
Being frustrated, I said, “People, I have a legal corporation in US with a valid EIN, so why can’t you not open it online which is the only requirement”.
They said they just don’t. Then I hung up.
Then I got introduced to Silicon Valley Bank (SVB) which is just awesome and very start up friendly. I saw many startups recommending them on Quora and other blogs. I called them up and answered some of their questions. They asked me to answer some more questions over email, which when i did, they told they can’t give a bank account because we’ve not yet raised a seed round. I was like WTF. This was more illogical than hearing ‘We need you to verify in person’.
We didn’t even launch our product and hence didn’t raise money. I tried to convince them a lot, even called up their Indian branch in Mumbai but they wouldn’t listen.
I asked a couple of people in the internet and realized that SVB is very selective in opening bank accounts. And the best way to open an account with SVB is to go through a recommendation. You need to find a person who is already banking with them or has good connections with them. We hustled a lot to find such guys and finally a couple of awesome guys helped us by connecting us directly to one of Directors of SVB. And then I was on a call with them discussing about my company, its technology, future and he talking about why SVB is an awesome bank, which it really is. They ask these things just to be clear they aren’t dealing with some huge risks or fraud.
Then within just 48 hours, I had my account.
11. Activating your Stripe account
This is only for companies who will be using Stripe as their payment gateway. After incorporation, just click on ‘Activate’ in live mode and fill out all the details. In business address, you’ll be entering you US mail forwarding address. In personal details, under Social Security number, just enter 0000 as you can’t have SSN and also can’t mention your ITIN there. Then you just need to mail at email@example.com and tell them that since you aren’t a US citizen you don’t have a SSN. And then within a couple of hours, your Stripe account will be activated.
So yeah these were the things that needs to be done for the incorporation.
P.S – This blog post might be a bit long than the usual ones of same topic but it’s because the old ones didn’t have all the information you need and I had to still research a lot. Hence, I hope you will be in a much better position to incorporate right away after reading this.
[About the Author: Nikunj Agrawal is the Founder & CEO of mYwindow. You can get in touch with him on firstname.lastname@example.org]