New York Foreign LLC Application for Authority

Under LLC Law § 802(a), a foreign LLC must apply for authority before it does business in New York. The statute does not define doing business. Section 803(a) names four activities that do not count (contesting or settling a proceeding, member or manager meetings, bank accounts, and an office kept only to transfer or register membership interests) and begins "without excluding other activities," so the list is not exhaustive.

The Department of State says it gives no opinions on what amounts to doing business for qualification purposes. Its published guidance (Legal Memorandum C001) says the local contacts must be "permanent, continuous, and regular," that a single contract or an isolated piece of business is not enough, and that an activity vital to the business triggers the requirement while an incidental one does not. Purely interstate commerce is outside the requirement. For a close call, speak to a New York attorney.

The application is Form DOS-1361-f-a, filed under § 802 of the Limited Liability Company Law with a Document and Certificate Cover Sheet (DOS-2183-f). It is mailed to the Division of Corporations in Albany, because the Department of State's page for this filing lists no online option. The state's fee is $250, payable by check or money order, or by card using the department's authorization form. The application does not have to be notarized.

The questions on it cover the LLC's name (plus the fictitious name it will use in New York if the true name is not acceptable), the home jurisdiction and formation date, the New York county of the LLC's office (no physical office is required in the state), the address where the Secretary of State should mail any process, the office address back home, a statement that the LLC exists there, and the home-state officer who keeps its records. A member, manager or other authorized person signs. The state gives no standard processing time.

Once filed, the department issues a filing receipt titled "Certificate of authority," and the LLC is authorized to do business here. Of the total of $449 today, $199 is our preparation work and the $250 goes to the state.

Section 802(b) gives you 120 days after filing to publish a copy or notice of the application once a week for six weeks in two newspapers in the county where the LLC's office is located (the county you list on the application). One must be a weekly and one a daily, both designated by the county clerk. The notice repeats the substance of the application, including the character or purpose of the business.

Afterward you file a Certificate of Publication (Form DOS-1707-f) with the Department of State, with the newspapers' affidavits attached, for a $50 filing fee. The state does not publish what the newspapers charge. The checkout total you see here covers the application and our service, not the newspaper charges or that $50.

Miss the 120 days and the LLC's authority to do business in New York is suspended. The suspension does not void contracts or stop the company from defending itself, and it is annulled once the certificate of publication is filed. Some theatrical production companies are exempt under the Arts and Cultural Affairs Law.

Attach a Certificate of Existence from the official who keeps LLC records where your company was formed. The Department of State notes that this is usually the home Secretary of State, and that plenty of jurisdictions label the same document a Certificate of Good Standing. It must be dated within one year, and the name and formation date on the application have to match it exactly.

Request it from the office that keeps your records back home, ahead of the filing, paying whatever that office charges. Where no such certificate is issued, the statute calls for a certified copy of the articles plus every amendment, with a sworn English translation when they are not in English.

Section 204 wants the words "Limited Liability Company" or one of the short forms, LLC or L.L.C., and a name that is distinguishable on the department's index from New York LLCs, authorized foreign LLCs, corporations and limited partnerships. Words such as "bank," "insurance" and "trust" need approval from the Superintendent of Financial Services, and "corporation," "incorporated" and "partnership" are barred.

If your real name will not clear § 204, the application states a fictitious name, which you then use in all dealings with the state and in your New York business. The assumed-name statute in the General Business Law does not apply to it. Reserving a name beforehand costs $20.

This state's setup is unusual. By statute, the Secretary of State is the agent for service on every authorized foreign LLC, and the application must designate the Secretary of State as such. Process is delivered to the Secretary in Albany, service is complete at that point, and a copy is then sent by certified mail to the address you gave, which can be inside or outside New York. The service fee under § 1101 is $40.

Naming a registered agent in New York is optional (§ 302). If you name one, it can be a New York resident or an individual with a New York business address, an LLC or foreign LLC authorized here, or a corporation authorized to do business in the state. You can add, change or revoke one later with a Certificate of Change, $30.

A foreign LLC doing business without authority cannot bring a suit or special proceeding in a New York court until it receives its certificate (§ 808). Contracts are still valid, it can still defend itself, and members, managers and agents are not liable just for doing business without authority. By operating here without authority, the company also appoints the Secretary of State to receive process for claims arising from its New York business.

The attorney general can sue to restrain a company from doing business here without authority (§ 809). Article 8 of the LLC Law and the fee schedule contain no late fee, fine or civil penalty, so there is no price per year of delay in the statute. Waiting still leaves the court-access bar in place.

Every two years, in the calendar month of the original filing, the LLC files a biennial statement for $9 listing its process mailing address; the department sends an email notice at the start of that month if it has your address. A company that does not file shows as past due, which can block certain transactions. Faster handling is not available for this statement.

Name changes at home must be reported within 90 days by amendment ($60). State tax is separate: an LLC with New York-source income that files a partnership return, or a disregarded LLC with New York items, owes a filing fee on Form IT-204-LL, as low as $25. Leaving New York means a Certificate of Surrender of Authority (Form DOS-1379-f), $60, and the Secretary of State stays the agent for claims from your New York period.

Give us your formation details and the Certificate of Existence. We then prepare Form DOS-1361-f-a and its cover sheet and file the application with the Department of State. The registered agent we name in New York costs nothing during the first year and $149 annually afterward. Service of process arriving there is scanned and uploaded for you on the day it comes in, with no charge.

What you pay today buys the application and that first agent year. Left out are the newspaper notice, the Certificate of Publication fee, the biennial statement and tax filings. Our work is filing paperwork; legal advice is outside it.

Corporations go through the same checkout and see the same state fee and total, $424 today. A corporation applies for authority under a different statute (Business Corporation Law § 1304) and, if it was already conducting business in New York, needs the State Tax Commission's consent first.