How to Qualify as a Foreign Business in West Virginia

Learn the rules for qualifying your LLC to do business in West Virginia.



If you own a business that was created in a state other than West Virginia, you will need to qualify or register that business in West Virginia if you want to do business there. Here is an overview of the rules on how to qualify your foreign (non-West Virginia) limited liability company (LLC) to do business in West Virginia.

What is a Foreign LLC?

For West Virginia purposes, if your LLC is formed in another state, then it is known as a foreign LLC in West Virginia. In other words, foreign doesn’t mean from another country. Instead, it means your business was organized under the laws of another state. A domestic LLC, on the other hand, is one that is formed in the state where it is doing business. This is common usage throughout the United States. For example, an LLC formed in Arizona is a foreign LLC in Colorado.

Transacting Business in West Virginia

According to West Virginia’s LLC Act, you are required to register your foreign company with the state of West Virginia if you are “transacting business” in West Virginia. What does this mean? Well, like most states, West Virginia’s LLC Act does not specifically define the phrase “transacting business” in relation to foreign registrations.

However, state laws governing when foreign companies must collect state sales tax in their state provide some guidance on the issue. Under these laws, a business must have a physical presence in—or nexus with—the state in order to be required to collect state sales tax on sales to that state’s residents. Generally speaking, physical presence and nexus are synonymous, and mean having:

  • a warehouse in the state
  • a store in the state
  • an office in the state, or
  • a sales representative in the state.

Certain exceptions may apply and the rules can get more complicated with things like Internet sales. Nevertheless, in general, if you have an office, a store, a warehouse, or employees in another state, you will need to qualify your LLC as a foreign company in that state. For more details, including some possible distinctions between physical presence and nexus, check Nolo’s articles on  Internet Sales Tax: A 50-State Guide to State Laws.

Certain Activities Are Exempt

Like most states, West Virginia’s LLC Act specifies certain activities that do not constitute transacting business in the state. The items listed include:

  • defending or settling a lawsuit
  • dealing with internal business affairs such as holding member or manager meetings
  • having a bank account in the state
  • having an office, agency, or persons in the state for handling your company’s own securities
  • selling through independent contractors
  • soliciting or obtaining orders where the orders require acceptance outside the state before they become contracts
  • creating or acquiring indebtedness, mortgages, or security interests in real or personal property
  • securing or collecting debts
  • conducting an isolated transaction that is completed within thirty days and is not one in the course of similar, repeated transactions
  • transacting business in interstate commerce
  • owning, without more, an interest in an LLC organized or transacting business in West Virginia
  • applying for withholding tax on an employee residing in West Virginia who works for your LLC in another state; and
  • holding all or a portion of the stock of a corporation authorized to transact business in West Virginia, as long as your LLC does not produce goods, services, or otherwise conduct business in West Virginia.

For the full, legal description of each of the listed items, check Section 31B-10-1003 of the  West Virginia Code. If your LLC’s only activity in West Virginia is one or more of the listed items, you should not need to register with the state.

Certificate of Authority

To register your business in West Virginia, you must file an  Application for Certificate of Authority  with the  West Virginia Secretary of State  (SOS). You can download a copy of the application form from the SOS website.

To complete the form, you must provide more or less the same information that you need to create an LLC in your home state. More specifically, for a West Virginia application for registration, you need to provide:

  • the name of your LLC as registered in the state where it was organized
  • if necessary, the separate name your LLC will use for business in West Virginia (known as a trade name or DBA, this is necessary if the original name of your LLC or something very similar is already being used by a West Virginia registered business, or if the original name does not contain required words such as “Limited Liability Company” or a required abbreviation such as “LLC”)
  • the state where your LLC was organized
  • an indication of whether your LLC is a  professional LLC
  • if your LLC is a professional LLC, a statement of the profession involved
  • the street address of your LLC’s principal office including the county
  • if different, the mailing address of your LLC’s principal office
  • the street address of your LLC’s initial designated office in West Virginia, if any, including the county
  • if different, the mailing address of your LLC’s designated office in West Virginia, if any
  • the name and street address of your LLC’s  registered agent  in West Virginia, if any
  • optionally, a statement of whether you own or operate more than one business in West Virginia
  • the duration of your LLC (either an at-will company or a term company for a set number of years)
  • a statement of whether your LLC is member-managed or  manager-managed
  • the names and address of all member or managers
  • an indication of whether one or more LLC members are liable for the company’s debts, obligations, and liabilities (for example, because of a provision in the LLC’s articles of organization or a written consent of the member)
  • the purpose for which your LLC is formed
  • an indication of whether the LLC is a scrap metal dealer (scrap metal dealers must submit additional documentation)
  • an effective date for the application (which may be the date of filing)
  • a statement of whether the LLC is “veteran-owned” according to West Virginia law (if so, you must attach a federal Veteran Affairs Form DD214)
  • an indication of whether one or more LLC members are liable for the company’s debts or obligations (for example, because of a provision in the LLC’s articles of organization or a written consent of the member), and
  • an authorized signature.

You must include an original Certificate of Existence, Certificate of Good Standing, or equivalent document with your application. The certificate must be dated during the current tax year and issued by the secretary of state of your LLC’s home state. If you have a professional LLC, you likely will need to include a letter of authorization or approval from the appropriate state licensing board.

The paper application also has places where you can provide an email address, website address, and an indication of the number of additional pages you will be submitting with the application, if any. The downloadable form has detailed instructions.

You can mail in one original, or include a second copy if you want one stamped and returned to you. You can also file  online. The filing fee is $150.

What Happens if You Don’t Register?

If your LLC transacts business in West Virginia without authority, it cannot bring a lawsuit in the state. However, not being registered does not invalidate your LLC’s contracts or prevent it from defending a lawsuit in the West Virginia. Also, the limitations on the personal liability of LLC members are not waived solely because the company transacted business in West Virginia without a certificate of authority.

Registering a Foreign Corporation

If your business is organized as a corporation rather than an LLC, the rules and requirements for foreign qualification in West Virginia are similar. You will, however, have to use a different application form. See the  West Virginia Secretary of State  website for forms, information, and filing instructions for registering a foreign corporation in West Virginia.

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