A Nonprofit From Another State Operating in West Virginia

In West Virginia a foreign nonprofit asks for a certificate of authority, the same document a foreign business corporation receives. "Foreign" simply means the charter was granted somewhere other than West Virginia, be that a sister state or a foreign country; it says nothing about where your board lives or where you serve people. The certificate leaves the nonprofit's home charter alone. It lets the organization conduct affairs in the state and makes it subject to the same duties as a West Virginia nonprofit of like character.

The rule comes from the West Virginia Nonprofit Corporation Act, Chapter 31E, Article 14. Applications are reviewed in Charleston by the state's Business and Licensing Division, which keeps one fee table for every foreign entity. Charitable solicitation and tax exemption are handled separately, and neither is covered by this filing.

Section 31E-14-1401 tells a foreign nonprofit not to conduct affairs in the state until the certificate is in hand, then lists seventeen things that do not count, noting that the list is illustrative. They fall into a few families:

• Courts and governance: pursuing, defending or settling a case, and holding meetings of the board or members
• Banking and credit: keeping bank accounts, taking or giving security for debt, and collecting debts or enforcing mortgages
• Remote selling: sales through independent contractors, and solicited orders that need approval outside the state
• A single transaction: a one-off completed within thirty days that is not repeated, and interstate commerce
• Giving and communicating: granting funds or other gifts, and sending information to members or shareholders
• Property and loans: buying land that is subject to a mortgage, appraising West Virginia property that secures a loan, and managing or selling property acquired through foreclosure
• Staff elsewhere: registering for withholding on a West Virginia resident who works for the nonprofit across the state line

The list also includes "owning, without more, real or personal property." A nonprofit that merely holds a West Virginia building, with no program running in it, has not been pulled in by ownership alone.

What does pull a nonprofit in

Under the same section, a foreign corporation is deemed to be transacting business if it makes a contract to be carried out even partly in West Virginia, commits a tort here, or supplies a product in defective condition that injures someone or something in the state. A nonprofit that runs a program here, hires here or contracts to deliver services here should assume it needs the certificate. When your activities fall in between, a West Virginia attorney can sort it out.

The state's charge for a nonprofit's certificate of authority is $50, which appears in the Code's fee schedule, in the form's header and on the Secretary of State's fee table. The payment box at the bottom of the form carries a stray figure of $25 for nonprofits; the other three sources agree on the higher number, so rely on them. Online filing runs through the One Stop Business Portal. Paper filers send one original, or two for a stamped copy. Without a rush request, expect five to ten business days; priority options cost $25, $250 or $500 on top.

The form asks for:

• The exact home-state name, with state of incorporation, date and duration
• The principal office and any West Virginia office
• Contact details for an agent to receive process, only if you choose one
• A contact e-mail for the state's annual notices
• The purposes the organization will pursue in West Virginia
• A list of current directors and officers with addresses
• Whether it is organized for profit or not (tick nonprofit), and the number of acres it holds or plans to hold
• A signature by an officer or director

A benefit corporation election is not available to nonprofits. An organization owned by qualifying military service members may be able to waive the fee. Charitable organizations should note the form's reminder that registration to solicit contributions may be required, which is a separate process at the Secretary of State.

This is a requirement, not a formality. Section 31E-14-1403(b) requires that a certificate of existence, or an analogous record, certified by the home-state official who keeps the nonprofit's file, be delivered with the application. Form CF-1 puts it concretely: a certificate of existence (also labeled good standing) bearing a date in the current tax year, plus a box to tick when it is enclosed.

The home state is the only source. Ask its filing office for the certificate and check that the name printed on it is the name you will write on the form. Because West Virginia accepts any certificate issued in the current tax year, you do not need to rush if one was recently pulled for another purpose. A nonprofit that has fallen behind on its home reports should cure that first, since the home state will not certify it otherwise.

Where the home name falls short of West Virginia's naming rules, the nonprofit can fix this by tacking on an ending like Corp., Inc., Co. or Ltd. or by spelling one out. If the name is taken by another entity, the board can adopt a fictitious name by resolution, certified by the secretary, and file it. Either way the final name needs to be clearly different from names already in the records.

An agent is optional

Under 31E-14-1407 an authorized foreign nonprofit may keep a registered office and agent here, and the verb is "may." The statute's list of possible agents is a West Virginia resident, a domestic corporation or domestic business corporation, or a corporation chartered elsewhere that holds authority in West Virginia; in every case the agent's office doubles as the registered office. The form asks only for an agent "if any" and says the agent need not have a West Virginia address.

When no agent is named, the Secretary of State remains available as the nonprofit's attorney-in-fact for process. Changing an agent later is done on Form AAO, which costs $15.

Nonprofit corporations file the same annual report as business corporations, at the same $25 fee, due June 30. The late fee is lower for nonprofits: $25 instead of $50. After five timely annual reports, a nonprofit may choose a biennial report at $50, and a late biennial report carries a $50 charge.

Altering the name, the stated term or the state of incorporation requires filing for an amended certificate of authority; the fee is $25. Withdrawal is Form CF-5, filed for $25 (add $1 through the portal). Before issuing the withdrawal certificate, the state seeks sign-offs from three agencies, and waiting for them may take as long as two years; until they arrive, the organization's tax and fee liability continues.

Section 31E-14-1402 sets the consequences. Until a foreign nonprofit obtains its certificate, it is shut out of West Virginia circuit courts as a plaintiff, and the same limit binds a successor and an assignee of its claim. A court can stay a case while deciding whether a certificate was needed.

For each year of unauthorized activity the state can collect what the fees and taxes would have come to, plus penalties on whatever went unpaid. Two things survive: the validity of what the organization did, and its right to answer a suit. Finally, the law presumes the Secretary of State to be its attorney-in-fact for service of process. The section sets no per-day fine.

Mainstay Filing's registration service handles LLCs and for-profit corporations, so a nonprofit corporation files its own Form CF-1, typically through an officer or the organization's attorney. The agent is the piece Mainstay Filing offers: $149 per year, with the same price every renewal. Its West Virginia address can go in the agent box, and that address then appears in the state's record.

Whatever gets served on the agent is posted to your account as a scan that same day, free. Up to three letters from government offices annually are also scanned free. For a nonprofit that already has another agent on file, Mainstay Filing submits the change to the Secretary of State and bills only what the state charges. The statute lists corporations as eligible agents, so before you order, put the eligibility question to Mainstay Filing support. Details are on the West Virginia registered agent page. Mainstay Filing is not a law firm.