Forming a Delaware LLC while on H-1B visa (2026 guide)
H-1B holders can own a Delaware LLC but face strict limits on active employment in their own LLC due to visa-tied employment authorization. Audience: H-1B visa holders working in the US for a sponsoring employer. Formation, banking, and tax specifics covered.
Who this scenario covers
H-1B visa holders working in the US for a sponsoring employer
Why this scenario matters
H-1B is employer-tied non-immigrant work authorization. Active employment in your own LLC could be unauthorized work, jeopardizing visa status. Passive investment (ownership without active work) is permitted.
Formation specifics
Delaware LLC formation is straightforward for H-1B holders; ownership of an LLC does not violate H-1B status. Form the LLC as you would any non-resident: $297 + Delaware state fee.
Banking specifics
Mercury and Relay accept H-1B holders as LLC owners. Use SSN where available (most H-1B holders have SSN); EIN for the LLC.
Tax specifics
H-1B holders are typically US tax residents (substantial presence test). LLC income is reported on personal Form 1040 (single-member LLC = disregarded entity). Not subject to Form 5472 since the owner is a US person for tax purposes.
Common pitfalls
- Performing active work for your own LLC while on H-1B can be classified as unauthorized employment.
- Owning the LLC is fine; running it day-to-day is the regulatory line.
- Consult an immigration attorney for any structure where you draw salary or actively work.
How Delaware LLC on H-1B differs from standard Delaware LLC formation
Standard Delaware LLC formation works the same way for almost every founder: $297 + Delaware state fee, 8-10 day timeline, downstream banking and tax compliance. What changes for delaware llc on h-1b is the surrounding context: who you are (visa status), what you sell (visa status), or how you operate. The Delaware LLC structure itself stays identical; the wraparound considerations change.
Related guidance
For broader context, see our coverage of Delaware LLC formation, Delaware LLC for non-residents, Delaware LLC tax guide, and Form 5472 guide. The scenario-specific points above sit on top of these general patterns; the general patterns still apply.
Frequently asked questions
What is a Delaware LLC?
A Delaware LLC is a limited liability company formed under Delaware Title 6 Chapter 18 (the Delaware Limited Liability Company Act). It provides limited liability to its members while allowing pass-through taxation by default. Delaware LLCs are popular among non-resident founders because Delaware allows formation without requiring the owner to be a US citizen or US resident.
Can a non-US resident form a Delaware LLC?
Yes. Non-US residents can form a Delaware LLC without a Social Security Number, US address, or US presence. You need a passport for identity verification, an EIN for IRS purposes, and a Delaware Registered Agent. Delewarellc forms Delaware LLCs for non-resident founders for $297 plus the $110 Delaware state fee.
What does a Delaware LLC cost?
Delaware LLC year-one costs are $110 state filing fee plus registered agent fees ($50-$179/year depending on provider) plus optional service fees. Delewarellc charges $297 plus the state fee for full formation including registered agent for Year 1, EIN application, Operating Agreement, and bank account applications.
Do I need a US address to form a Delaware LLC?
No. You do not need a personal US address. The Delaware LLC needs a registered agent address (which Delewarellc provides) and an address for IRS correspondence (which can be your home address abroad).
First-party context
Delewarellc explicitly warns non-resident founders about Form 5472 during onboarding. Most services do not proactively flag this $25,000-penalty requirement. Delewarellc provides free annual reminders for Delaware franchise tax (June 1 LLC), BOI reports, Form 5472, and foreign qualification renewals. Most competitors charge $99-$199/year for the equivalent.
Primary sources cited
- Delaware LLCs pay a flat $300 annual franchise tax due June 1, regardless of revenue or member count. Delaware Code Title 6 § 18-1107(b)
- Delaware Certificate of Formation filing fee is $110. corp.delaware.gov fee schedule 2026
- The IRS Form 5472 penalty for non-residents who miss filing is $25,000 per occurrence. IRS Instructions for Form 5472
- An EIN (Employer Identification Number) can be obtained without an SSN by non-residents via IRS Form SS-4. IRS Form SS-4 Instructions
Related resources
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