Qualifying a Foreign Entity to Do Business in New York Checklist

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Qualifying a Foreign Entity to Do Business in New York

Checklist

by Practical Law Corporate & Securities

Maintained

•

New York

This Checklist summarizes the necessary steps for a foreign for-profit corporation, limited liability company (LLC), limited

partnership (LP), and limited liability partnership (LLP) to qualify to do business in New York. It discusses what constitutes

doing business in New York, the consequences of doing business without authorization from the New York Department of

State (DOS), and the procedure for these entities to apply for authority to do business in New York.

Contents

Doing Business in New York

Doing Business Without Authority

Name Considerations

Name Availability

Statutory Requirements

Name Reservation

Fictitious Names

File Qualification Documentation

Corporations

Professional Service Corporations

Limited Liability Companies

Professional Service Limited Liability Companies

Limited Partnerships

Registered Limited Liability Partnerships

Registered Agent and Office

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Office and County Location

Filing Process

Periodic Reports

Corporations

Professional Service Corporations

Limited Liability Companies and Professional Service Limited Liability Companies

Registered Limited Liability Partnerships

Other Considerations

Withdrawal or Termination of a Foreign Entity

Surrender of Authority or Withdrawal

Termination

A business entity is considered domestic only in its state of formation. In all other states, the entity is regarded as foreign and

may need to qualify or register to do business in those states. Foreign entities are prohibited from doing business in New York

until they obtain authorization from the New York State Department of State (DOS).

This Checklist summarizes the necessary steps for a foreign for-profit corporation, professional service corporation (PC),

limited liability company (LLC), limited partnership (LP), or limited liability partnership (LLP) to qualify to do business in

New York.

Doing Business in New York

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• The New York statutes governing foreign for-profit corporations, LLCs, LPs, and LLPs doing business in New York do

not define what constitutes doing business in New York.

• These New York statutes instead provide a non-exclusive list of activities that are not considered doing business in New

York, including:

• maintaining, defending, or settling any action or proceeding, whether judicial, administrative, or arbitrative;

• settling any claims or disputes;

• holding meetings of directors, shareholders, members, managers, or partners;

• maintaining bank accounts; and

• maintaining offices or agencies for the transfer, exchange, and registration of the foreign entity’s securities or equity

interests, or appointing and maintaining trustees or depositaries with relation to its securities or equity interests.

• (NYBCL § 1301(b), NY LLCL § 803(a), and N.Y. Partnership Law §§ 121-902(b) and 121-1502(b).)

• The statutory list of excluded activities does not establish a standard for activities that subject a foreign for-profit

corporation, LLC, LP, or LLP to service of process (NYBCL § 1301(c), NY LLCL § 803(b), and N.Y. Partnership Law §§

121-902(c) and 121-1502(b)).

• New York courts examining this issue have determined that:

• there is a presumption that a foreign corporation does business in its state of incorporation rather than in New York;

• to be considered doing business in New York, a foreign corporation must be engaged in a regular and continuous

course of conduct in New York; and

• the question of whether a foreign corporation’s activities in New York constitute doing business must be made on a

case-by-case basis with inquiry into the kind of business being conducted.

• (Highfill, Inc. v. Bruce and Iris, Inc., 855 N.Y.S.2d 635, 637 (2d Dep’t 2008).)

• It is likely New York courts will apply these same concepts when determining if other foreign entity types are doing

business in New York.

• Whether a foreign entity is doing business in New York for purposes of requiring qualification requires a greater amount

of contact with New York than that to establish that a foreign entity is doing business in New York for jurisdictional

purposes (CPLR 302 and Maro Leather Co. v. Aerolineas Argentinas, 617 N.Y.S.2d 617, 619 (1st Dep’t 1994)).

• A foreign LLP is not deemed to be carrying on or conducting business in New York solely because it has filed a notice of

registration with the DOS (N.Y. Partnership Law § 121-1502(b)).

For more information on doing business and qualification in New York, see State Q&A, Corporation Law: New York, Foreign

Corporations and Department of State: “Doing Business” in New York: An Introduction to Qualification.

Doing Business Without Authority

• The New York attorney general may file an action to prevent an unauthorized foreign entity from doing business in New

York (NYBCL § 1303, NY LLCL § 809, and N.Y. Partnership Law § 121-908).

• An unauthorized foreign entity cannot maintain any action, suit, or special proceeding in New York until it has:

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• received authorization to do business or filed a notice with the DOS (see File Qualification Documentation);

• if a corporation, paid all fees, taxes, penalties, and interest charges accrued against the corporation; and

• if a foreign LLP, paid all fees which would have been due had it filed the required notice before doing business in

New York.

• (NYBCL § 1312(a), NY LLCL § 808(a), and N.Y. Partnership Law §§ 121-907(a) and 121-1502(m).)

• A foreign entity’s failure to obtain proper authority does not:

• affect the validity of its contracts or acts; or

• bar it from defending any New York action, suit, or special proceeding.

• (NYBCL § 1312(b), NY LLCL § 808(b), and N.Y. Partnership Law §§ 121-907(b) and 121-1502(m).)

• A foreign LLC’s members, managers, and agents are not liable for the LLC’s contractual obligations or other liabilities

solely because the LLC is doing or has done business in New York without authority (NY LLCL § 808(c)).

• A foreign LP’s limited partner is not liable as a general partner of the LP solely because the LP is doing or has done

business in New York without authority (N.Y. Partnership Law § 121-907(c)).

• A registered foreign LLP’s (RLLP’s) partners or agents are not liable for the RLLP’s contractual obligations or other

liabilities if the RLLP fails to meet its publication obligations (see Registered Limited Liability Partnerships: Publication).

Failure to meet the publication obligations also does not affect the validity of its contracts or acts or bar it from defending

any New York action or special proceeding. (N.Y. Partnership Law § 121-1502(f)(II)(A), (B)(4).)

Name Considerations

Before applying for authority to do business in New York, foreign entities should determine if their name may be used in New

York.

Name Availability

• The names of foreign corporations, LLCs, and LPs applying for authority must be distinguishable from existing names on

file with the DOS (NYBCL 301(a)(2), NY LLCL § 204(b), and N.Y. Partnership Law § 121-102(a)(2)).

• A foreign entity can check if a name is available by submitting a name availability inquiry to the DOS in writing (19

NYCRR § 156.1). The inquiry should list the name or names to be searched and request their availability. Submit the

inquiry:

• by mail to the New York Department of State, Division of Corporations, One Commerce Plaza, 99 Washington

Avenue, Albany, NY 12231; or

• by fax to the Division of Corporation’s (DOC) Information Unit at (518) 473-1654.

• There is a $5 fee for each name searched (N.Y. Exec. Law § 96(1)). For information about acceptable payment

methods, see Practice Note, Filing Documents with the Department of State (NY): Payment Methods. For more

information about name availability searches, see Practice Note, Forming and Organizing a Corporation (NY): Name

Availability.

• RLLPs’ names are not searched for availability (see Department of State: Limited Liability Partnership FAQs: How do I

determine if the name I want to use is available?).

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• Parties often forego submitting name availability requests and instead initiate an online filing with the DOS for a

certificate of incorporation or articles of organization (see Department of State: Online Filing System). The online filing

requires the submission of the entity’s name and the DOS website will reject any names that are not acceptable and

provide a reason for the rejection. The online application can be canceled after the name is submitted.

• A foreign entity can also search the DOC’s records to see the names of corporations, LLCs, LPs, and LLPs on file with

the DOS. The search results are for informational purposes only though and should not be relied on to determine

whether a name is available for use. Searches can be conducted:

• online through the Corporation and Business Entity Database (see Department of State: Corporation and Business

Entity Database);

• by calling, mailing, emailing, or faxing a search request to the DOC; or

• by directly accessing the DOC’s records if the user has created a Service Company/Drawdown Account with the

DOC and installed the required software (see Department of State: Service Company/Drawdown Account

Application). Service companies typically have these accounts with the DOC.

• For more information, see Department of State: How do I get information on a corporation or other business entity?

What information is available?

Statutory Requirements

• Statutory requirements regarding names vary depending on the foreign entity type.

• In general, the names of foreign corporations, PCs, LLCs, PLLCs, and LPs must:

• be distinguishable from the names (including fictitious or reserved names) of any domestic or authorized foreign

corporation, LLC, or LP on file with the DOS; and

• not contain any statutorily prohibited or restricted words, phrases, or abbreviations unless the entity has complied

with the procedures for an exception.

• (NYBCL §§ 301 and 1529, NY LLCL §§ 204 and 1305, and N.Y. Partnership Law § 121-102.)

• Corporations. The name of a foreign for-profit corporation must contain the word “corporation,” “incorporated,” or

“limited,” or an abbreviation of one of these words (NYBCL § 301(a)(1)).

• Professional Service Corporations. The name of a foreign PC:

• must end with the words “Professional Corporation” or the abbreviation “P.C.” (NYBCL § 1530(a)(1));

• may not contain the name of a deceased person (with limited exceptions) (NYBCL § 1512(a)); and

• must comply with New York State Education Department requirements (see State Education Department, Office of

the Professions: Section IV Foreign Professional Service Corporations).

• Limited Liability Companies. The name of a foreign LLC must contain the words “Limited Liability Company” or the

abbreviation “L.L.C.” or “LLC” (NY LLCL § 204(a)).

• Professional Service Limited Liability Companies. The name of a foreign professional service LLC (PLLC):

• must end with “Professional Limited Liability Company” or “Limited Liability Company” or the abbreviation “P.L.L.C.,”

“PLLC,” “L.L.C.,” or “LLC” (NY LLCL § 1306(a)(1)); and

• must comply with New York State Education Department requirements (see State Education Department, Office of

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the Professions: Section VII Foreign Professional Service Limited Liability Companies).

• Limited Partnerships. The name of a foreign LP must contain the words “Limited Partnership” or the abbreviation “L.P.”

(N.Y. Partnership Law § 121-102(a)).

• Registered Limited Liability Partnerships. The name of a foreign RLLP must:

• contain the words “Registered Limited Liability Partnership” or “Limited Liability Partnership” or the abbreviations

“R.L.L.P.,” “RLLP,” “P.L.L.,” “PLL,” “L.L.P.,” or “LLP” (N.Y. Partnership Law § 121-1502(k)); and

• comply with New York State Education Department requirements (see State Education Department, Office of the

Professions: Section IX Registered Professional Limited Liability Partnerships).

Name Reservation

• If the desired name is available, a foreign corporation, PC, LLC, PLLC, or LP may reserve the name for sixty days by

submitting an application for reservation of name with the DOS. For information on filing the application, see Filing

Process.

• The application must include the statutory fee of $20 (NYBCL § 104-A(a), NY LLCL § 1101(a), and N.Y. Partnership Law

§ 121-1300(a)).

• Once an application for reservation of name is filed, a certificate of reservation is issued.

• Entities may request up to two 60-day extensions in writing but must pay an additional $20 fee for each extension.

• The certificate of reservation must be attached to the application for authority.

(NYBCL § 303, NY LLCL § 205, and N.Y. Partnership Law § 121-103.)

Forms for applications for the reservation of names are available on the DOS’s website. See:

• Application for Reservation of Name (Corporations).

• Application for Reservation of Name (LLCs).

• Application for Reservation of Name (LPs).

Fictitious Names

• If the legal name of a foreign corporation, LLC, or LP is not available or not acceptable for authorization in New York, the

entity may qualify to do business in New York using a fictitious name that meets New York’s statutory requirements

(NYBCL § 1301(d), NY LLCL § 802(a)(1), and N.Y. Partnership Law § 121-902(a)(1)).

• If the legal name of a foreign corporation, LLC, or LP does not contain the required entity designation or abbreviation

(such as Inc., LLC, or L.P.), the entity must add one for use in New York or use a fictitious name (NYBCL §§ 301(a)(1)

and 1301(d), NY LLCL §§ 204(a) and 802(a)(1), and N.Y. Partnership Law §§ 121-102(a)(1) and 121-902(a)(1)).

• A foreign corporation’s fictitious name does not need to contain a corporate designation or abbreviation at the end

because it is not subject to Section 301(a)(1) of the NYBCL (NYBCL § 1301(d)).

• The filing of a fictitious name does not constitute the filing of an assumed name (NYBCL § 1301(d), NY LLCL §

802(a)(1), and N.Y. Partnership Law § 121-902(a)(1). For more information about assumed names, see Assumed

Names in New York Checklist and N.Y. Gen. Bus. Law § 130(1)(b)).

File Qualification Documentation

To qualify to do business in New York, foreign corporations, PCs, LLCs, PLLCs, and LPs must file an application for authority

and foreign RLLPs must file a notice of registration with the DOS. However, foreign corporations in existence on September 1,

1963 that were authorized to do business in New York under a certificate of authority retain their authority without needing to

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file an application for authority (NYBCL § 1302).

Corporations

Application for Authority

• Contents. The application for authority must include:

• the foreign corporation’s name;

• if the foreign corporation’s name is not available, the fictitious name under which it proposes to do business or is

doing business in New York;

• the foreign corporation’s jurisdiction and its date of incorporation;

• its corporate purpose or purposes;

• the New York county where the foreign corporation’s office will be located;

• a designation of the New York Secretary of State (SOS) as the foreign corporation’s agent for service of process and

the post office address within or outside New York to which the SOS must mail a copy of any process served on

the SOS;

• if the foreign corporation has a registered agent, that agent’s name and New York address and a statement that the

registered agent is to receive service of process for the foreign corporation; and

• a statement that the foreign corporation has not engaged in activity in New York since its incorporation (or the date its

authority to do business in New York was last surrendered) or, if it has, consent from the New York State tax

commission (which is the New York State Department of Taxation and Finance (Tax Department)).

• (NYBCL § 1304(a).)

• Execution. An officer, director, attorney-in-fact, or authorized person of the foreign corporation must sign the application

for authority (NYBCL § 104(d)).

• Form. The applicant can submit a self-drafted application for authority, such as Standard Document, Application for

Authority: Foreign Corporation (NY), or use the sample application for authority for a foreign corporation available on the

DOS’s website (see Department of State: Application for Authority Form (Foreign Corporations)). The DOS form does

not include optional provisions, such as registered agent information. The application must be in English although the

corporate name may be in another language if written in English letters or characters (NYBCL § 104(a)).

• Additional Documents. The application for authority must include:

• a backer (also known as a cover sheet) that includes the title “Application for Authority,” the statute under which the

application is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1);

• a certificate of existence (also known as a certificate of good standing) issued by the official who files and

maintains corporate records in the foreign corporation’s jurisdiction of incorporation and dated within one year of

the application. The certificate must be in English or have an English translation under oath of the translator

attached. (NYBCL § 1304(b) and see Department of State: Business Corporation Filings, Application for Authority

(Foreign Corporations));

• if the foreign corporation conducted business in New York before filing the application for authority, consent from the

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Tax Department (NYBCL § 1304(a)(8)). To request consent, call the Tax Department at (518) 485-2639 or mail an

affidavit indicating the date the foreign corporation began to do business in New York State and the corporation’s

reporting period (calendar or fiscal) to NYS Department of Taxation and Finance, Corporation Tax Dissolution Unit

Building 8, Room 558, W.A. Harriman Campus, Albany, NY 12227 (see Tax Department: Foreign corporations

authorized to do business in New York State and How does a foreign corporation become authorized to do

business in New York State?; and

• if the foreign corporation reserved its name with the DOS, the certificate of reservation.

• Fee. The fee for the application for authority is $225 (NYBCL § 104-A(l)).

• Filing Process. For information on the filing process, see Filing Process.

• Authorization Granted. The foreign corporation is authorized to do business in New York when the DOS files the

application for authority. It may conduct only the business set out in the application and only to the extent it is authorized

to conduct that business in its jurisdiction of incorporation. It may not conduct any business prohibited to New York

corporations. (NYBCL §§ 1301(a) and 1305.)

Professional Service Corporations

Application for Authority

• Contents. The application for authority must include:

• the foreign PC’s name;

• the foreign PC’s jurisdiction and its date of incorporation;

• a statement of the profession or professions to be practiced in New York and a statement that the PC is authorized to

practice that profession in its jurisdiction of incorporation;

• the name, address, and license number of each person within the foreign PC licensed to practice in New York;

• the city, incorporated village, or town and county in New York where the corporation’s office is to be located;

• a designation of the SOS as the foreign PC’s agent for service of process and the post office address within or

outside New York to which the SOS must mail a copy of any process served on the SOS;

• if the foreign PC has a registered agent, that agent’s name and New York address and a statement that the

registered agent is to receive service of process; and

• a statement that the foreign PC has not engaged in activity in New York since its incorporation (or the date its

authority to do business in New York was last surrendered) or, if it has, an attached consent from the Tax

Department.

• (NYBCL § 1530(a).)

• Execution. An officer, director, attorney-in-fact, or duly authorized person must sign the foreign PC’s application for

authority (NYBCL §§ 104(d) and 1529).

• Form. The applicant can use a self-drafted form or the sample application for authority for a foreign PC available on the

DOS’s website (see Department of State: Application for Authority Form (Foreign Professional Service)). The DOS form

does not include optional provisions, such as registered agent information. The application must be in English although

the PC’s name may be in another language if written in English letters or characters (NYBCL § 104(a)).

• Additional Documents. The application for authority must include:

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• a backer (also known as a cover sheet) that includes the title “Application for Authority,” the statute under which the

application is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1). A backer is attached

to the DOS form as the last page;

• a certificate of existence (also known as a certificate of good standing) issued by the official who files and maintains

corporate records in the foreign PC’s jurisdiction of incorporation and dated within one year (NYBCL § 1530(b)(1)

and see Department of State: Business Corporation Filings, Application for Authority (Professional Service Foreign

Corporations));

• a certificate of good standing or authority issued by the relevant New York licensing authority for each professional

within the foreign PC that will practice in New York (NYBCL § 1530(b)(2)). The relevant licensing authority is the

Regents of the University of the State of New York, the New York State Education Department, or the appropriate

appellate division of the supreme court (Licensing Authority) (NYBCL § 1525(a) and NY LLCL § 1301(b)). For

more information, see State Education Department, Office of the Professions: Section IV Foreign Professional

Service Corporations and Office of Counsel: Commissioner’s Consents, Application for Authority and 22 NYCRR

§§ 521.1 to 521.8;

• for a foreign PC providing healthcare services, a certificate of good standing or authority issued by the relevant

Licensing Authority for each shareholder, officer, and director (NYBCL § 1530(b)(3));

• if the foreign PC conducted business in New York before filing the application for authority, consent from the Tax

Department (NYBCL § 1530(a)(8)). To request consent, call the Tax Department at (518) 485-2639; and

• if the foreign PC reserved its name with the DOS, the certificate of reservation.

• Fee. The fee for the application for authority is $200 (NYBCL § 1530(c)).

• Filing Process. For information on the filing process, see Filing Process.

• Authorization Granted. The foreign PC is authorized to do business in New York when the DOS files its application for

authority. It may conduct only the business set out in the application and only to the extent it is authorized to conduct

that business in its jurisdiction of incorporation. It may not conduct any business prohibited to New York corporations.

(NYBCL §§ 1301, 1305, and 1529.)

Limited Liability Companies

Application for Authority

• Contents. The application for authority must include:

• the foreign LLC’s name;

• if the foreign LLC’s name is not acceptable for authorization, the fictitious name under which it is doing business in

New York;

• the foreign LLC’s jurisdiction and its date of its formation;

• the New York county where the foreign LLC’s office will be located or, if the foreign LLC will maintain more than one

New York office, the county where its principal office is to be located;

• a designation of the SOS as the foreign LLC’s agent for service of process and the post office address within or

outside New York to which the SOS must mail a copy of any process served on the SOS;

• if the foreign LLC has a registered agent, that agent’s name and New York address and a statement that the

registered agent is to be served with process;

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• the address of the office required to be maintained in the foreign LLC’s jurisdiction of formation or, if not required, the

principal office of the LLC;

• a statement that the foreign LLC is in existence in its jurisdiction of formation; and

• the name and address of the authorized officer in the foreign LLC’s jurisdiction of formation where a copy of its

articles of organization are filed or, if there are no public filings, a statement that the LLC will provide a copy of its

articles of organization and any amendments on request (including English translations under oath of the

translator if these documents are not in English), and the name and address of the person responsible for

providing those copies.

• (NY LLCL § 802(a).)

• Execution. At least one member, manager, authorized person, or attorney-in-fact must sign the foreign LLC’s

application for authority (NY LLCL § 207(a)(6), (b)).

• Form. The applicant may use a self-drafted form or the form of application for authority for a foreign LLC available on

the DOS’s website (see Department of State: Application for Authority Form (Foreign LLC)). The DOS form does not

include optional provisions, such as registered agent information.

• Additional Documents. The application for authority must include:

• a backer (also known as a cover sheet) that includes the title “Application for Authority,” the statute under which the

application is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1). A backer is attached

to the DOS form as the last page;

• a certificate of existence (also known as a certificate of good standing) dated within one year, a certified copy of the

articles of organization and any amendments if no certificate of existence is issued by the foreign LLC’s jurisdiction

of formation, or a certified copy of the foreign LLC’s organizational document and any amendments if articles of

organization have not been filed. These certificates and copies must be in English or have an English translation

under oath of the translator attached. (NY LLCL § 802(a) and see Department of State: Limited Liability Company

Filings, Application for Authority (Foreign Limited Liability Companies)); and

• if the foreign LLC reserved its name with the DOS, the certificate of reservation.

• Fee. The fee for the application for authority is $250 (NY LLCL § 1101(k)).

• Filing Process. For information on the filing process, see Filing Process.

• Authorization Granted. The foreign LLC is authorized to do business in New York when its application for authority is

filed with the DOS. The foreign LLC may only conduct business in New York that it may conduct in its jurisdiction of

organization and only to the extent a New York LLC may. (NY LLCL § 805).

Publication

• Within 120 days after filing the application for authority, the foreign LLC must publish a copy of the application or notice

containing the substance of the application in two separate newspapers (one printed daily and one printed weekly) in the

New York county where the office of the LLC is located. Many entities pay a third party service company to handle

meeting the publication requirement.

• The county clerk designates which newspapers to use. If the county clerk does not designate a daily or weekly

newspaper, the foreign LLC must publish in a daily or weekly (or both if the county clerk has not designated either)

newspaper of any contiguous county.

• Publication must occur once a week for six consecutive weeks. When complete, the printer or publisher of each

newspaper will provide the foreign LLC with an affidavit of publication.

• The notice must include the same information required on the application for authority (other than the statement that the

foreign LLC exists in its jurisdiction of formation) plus:

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• the date the application for authority was filed with the DOS;

• the street address of the foreign LLC’s principal office location, if any; and

• the character or purpose of the foreign LLC’s business.

• (NY LLCL § 802(b)(i).)

• The foreign LLC must file a certificate of publication (see Department of State: Certificate of Publication Form (Foreign

LLC)), along with the affidavits of publication, with the DOS (see Filing Process).

• The filing fee for the certificate of publication is $50 (NY LLCL § 1101(s)).

• Foreign LLCs that fail to publish notice within 120 days after qualification will have their authority suspended until the

publication requirements are met (NY LLCL § 802(b)(i)).

Professional Service Limited Liability Companies

Application for Authority

• Contents. The application for authority must include:

• the foreign PLLC’s name;

• the foreign PLLC’s jurisdiction and its date of formation;

• a statement of the profession or professions to be practiced in New York and a statement that it is authorized to

practice in its jurisdiction of formation;

• the name, address, and if applicable, the license number of each professional of the PLLC licensed to practice in

New York;

• the city, village, or town and county in New York where its office is to be located;

• the designation of the SOS as the foreign PLLC’s agent for service of process and the post office address within or

outside New York to which the SOS must mail a copy of any process served on the SOS; and

• if the foreign PLLC has a registered agent, that agent’s name and New York address and a statement that the

registered agent is to be served with process for the LLC.

• (NY LLCL § 1306(a).)

• Execution. At least one member, manager, authorized person, or attorney-in-fact must sign the foreign PLLC’s

application for authority (NY LLCL §§ 207(a)(6), (b) and 1305).

• Form. An applicant may use a self-drafted form or the form of application for authority for a foreign PLLC available on

the DOS’s website (see Department of State: Application for Authority Form (Foreign Professional Service LLC)). The

DOS form does not include optional provisions, such as registered agent information.

• Additional Documents. The application for authority must include:

• a backer (also known as a cover sheet) that includes the title “Application for Authority,” the statute under which the

application is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1). A backer is attached

to the DOS form as the last page;

• a certificate of existence (also known as a certificate of good standing) issued by the official who files and maintains

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company records in the foreign PLLC’s jurisdiction of formation and dated within one year (NY LLCL § 1306(b)(1)

and see Department of State: Limited Liability Company Filings, Application for Authority (Foreign Professional

Service Limited Liability Companies));

• for each professional within the foreign PLLC that is an individual and will practice in New York, a certificate issued by

the relevant Licensing Authority that the professional is licensed in New York (NY LLCL § 1306(b)(2)). For more

information, see State Education Department, Office of the Professions: Information Regarding Certification or

Verification of Licensure and 22 NYCRR §§ 521.1 to 521.8;

• for each professional within the foreign PLLC that is a PC, PLLC, RLLP, foreign LLP, or professional partnership and

will practice in New York, a certificate issued by the relevant Licensing Authority stating that either each

professional entity and its shareholders, members, or partners are licensed in New York or one or more of the

professional entities and one or more of its shareholders, members, or managers are licensed in New York (NY

LLCL § 1306(b)(2)(A)). For more information, see State Education Department, Office of the Professions: Section

VII Foreign Professional Service Limited Liability Companies;

• for each professional within the foreign PC that is a domestic or foreign PC, domestic or foreign PLLC, RLLP, or

foreign LLP and will practice in New York, a certificate of existence or good standing issued by an official of the

foreign PLLC’s jurisdiction of formation (NY LLCL § 1306(b)(2)(B));

• for each professional within the foreign PC that is a foreign PC, foreign PLLC, or foreign LLP, a certificate from the

SOS that the entity is authorized to do business in New York (NY LLCL § 1306(b)(2)(B));

• for a foreign PLLC providing healthcare services, a certificate issued by the relevant Licensing Authority that each

member or manager of the foreign PLLC is licensed to practice in New York (NY LLCL § 1306(b)(3)); and

• if the foreign PLLC reserved its name with the DOS, the certificate of reservation.

• Fee. The fee for the application for authority is $200 (NY LLCL § 1306(c)).

• Filing Process. For information on the filing process, see Filing Process.

• Authorization Granted. The foreign PLLC is authorized to do business in New York when its application for authority is

filed with the DOS. The foreign PLLC may only conduct business in New York that it may conduct in its jurisdiction of

organization and only to the extent a New York PLLC may. (NY LLCL §§ 805 and 1305.)

Publication

• The publication requirements and fees for a foreign PLLC under the NY LLCL are the same as those for a foreign LLC

(NY LLCL § 1306(d)(i) and see Limited Liability Companies: Publication).

• The DOS provides a certificate of publication form specifically for foreign PLLCs (see Department of State: Certificate of

Publication Form (Foreign Professional Service LLC)).

Limited Partnerships

Application for Authority

• Contents. The application for authority must include:

• the foreign LP’s name;

• if the foreign LP’s name is not acceptable for authorization, the fictitious name under which it will do business in New

York;

• the foreign LP’s jurisdiction and its date of organization;

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• the New York county where the foreign LP’s office will be located;

• a designation of the SOS as the foreign LP’s agent for service of process and a post office address within or outside

New York to which the SOS must mail a copy of any process served on the SOS;

• if the foreign LP has a registered agent, that agent’s name and New York address and a statement that the registered

agent is to be served with process for the LP;

• the address of the office required to be maintained in the foreign LP’s jurisdiction of organization or, if not required,

the foreign LP’s principal office;

• a list of all the general partners’ names and business or residence addresses;

• a statement that the foreign LP is in existence in its jurisdiction of organization when the application of authority is

filed; and

• the name and address of the authorized officer in the foreign LP’s jurisdiction of organization where a copy of its

certificate of limited partnership is filed or, if no public filing is required, a statement that the LP will provide a copy

of its certificate of limited partnership and any amendments on request (including English translations under oath

of the translator if these documents are not in English), and the name and post office address of the person

responsible for providing those copies.

• (N.Y. Partnership Law § 121-902(a).)

• Execution. A general partner must sign the foreign LP’s application for authority (N.Y. Partnership Law §

121-204(a)(4).)

• Form. The applicant may use a self-drafted form or the form of application for authority for a foreign LP available on the

DOS’s website (see Department of State: Application for Authority Form (Foreign LP)). The DOS form does not include

optional provisions, such as registered agent information.

• Additional Documents. The application for authority must include:

• a backer (also known as a cover sheet) that includes the title “Application for Authority,” the statute under which the

application is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1). A backer is attached

to the DOS form as the last page;

• a certificate of existence (also known as a certificate of good standing) dated within one year of the application, a

certified copy of the restated certificate of limited partnership and any amendments (if no certificate of existence is

issued by the foreign LP’s jurisdiction of organization), or a certified copy of the foreign LP’s organizational

certificate and any amendments (if a restated certificate has not been filed). These certificates and copies must be

in English or have an English translation under oath of the translator attached. (N.Y. Partnership Law § 121-902(a)

and see Department of State: Limited Partnership Filings, Application for Authority); and

• if the foreign LP reserved its name with the DOS, the certificate of reservation.

• Fee. The fee for the application for authority is $200 (N.Y. Partnership Law § 121-1300(k)).

• Filing Process. For more information on the filing process, see Filing Process.

• Authorization Granted. The foreign LP is authorized to do business in New York when the application for authority is

filed with the DOS. The foreign LP may only conduct business in New York that it may conduct in its jurisdiction of

organization and only to the extent a New York LP may. (N.Y. Partnership Law § 121-904.)

Publication

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• Within 120 days after filing the application for authority, the foreign LP must publish a copy or notice containing the

substance of the application for authority in two separate newspapers (one printed daily and one printed weekly) in the

county where the office of the LP is located. The county clerk must designate the newspapers.

• Publication must occur once a week for six consecutive weeks. The printer or publisher of each newspaper will provide

the foreign LP with an affidavit of publication.

• The notice must include the same information required on the application for authority (other than the statement that the

foreign LP exists in its jurisdiction of formation) plus:

• the date the application for authority was filed with the DOS;

• the street address of the foreign LP’s principal business location, if any;

• a statement that the list of the names and business or residence addresses of all of the foreign LP’s general partners

is available from the SOS; and

• the character or purpose of the foreign LLC’s business.

• (N.Y. Partnership Law § 121-902(d)(i).)

• The foreign LP must file a certificate of publication (see Department of State: Certificate of Publication (Foreign LP)),

along with affidavits of publication, with the DOS (see Filing Process).

• The filing fee for the certificate of publication is $50 (N.Y. Partnership Law § 121-1300(f)).

• Foreign LPs that fail to publish notice within 120 days after qualification will have their authority suspended until the

publication requirements are met (N.Y. Partnership Law § 121-902(d)(i)).

Registered Limited Liability Partnerships

Notice of Registration

• Contents. The notice must contain the following information:

• the name under which the foreign LLP intends to do business in New York;

• the date on which, and jurisdiction where, the foreign LLP registered as an LLP;

• the address of the foreign LLP’s principal office;

• the profession or professions that the foreign LLP will practice and a statement that it is a foreign LLP eligible to file

notice under the New York Partnership Law;

• a designation of the SOS as the foreign LLP’s agent for service of process and the post office address within or

outside New York where the SOS must mail a copy of any process served on the SOS;

• if the foreign LLP has a registered agent, that agent’s name and New York address and a statement that the

registered agent is to be served with process for the LLP;

• a statement that the foreign LLP’s registration as an LLP is effective in the jurisdiction of registration when the notice

of registration is filed;

• a statement that the foreign LLP is filing to obtain status as a New York registered foreign LLP;

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• the notice of registration’s proposed effective date (which may not exceed 60 days from the date of filing), if it will not

be effective on filing; and

• any other information the foreign LLP decides to include.

• (N.Y. Partnership Law § 121-1502(a).)

• Execution. At least one partner must sign the foreign LLP’s notice of registration (N.Y. Partnership Law § 121-1502(c)).

• Form. The applicant may use a self-drafted form or the form of notice of registration for a foreign LLP available on the

DOS’s website (see Department of State: Notice of Registration Form (Foreign LLP)). The DOS form does not include

optional provisions, such as registered agent information.

• Additional documents. The notice of registration must include:

• a backer (also known as a cover sheet) that includes the title “Notice of Registration,” the statute under which the

notice is submitted for filing, and the name and address of the filer (19 NYCRR § 150.1). A backer is attached to

the DOS form as the last page; and

• a copy of the last registration, renewal, or similar filing, if any, filed with the foreign LLP’s jurisdiction of registration or

a certificate evidencing LLP registration issued by the foreign LLP’s jurisdiction of registration. These certificates

and copies must be in English or have an English translation under oath of the translator attached. (N.Y.

Partnership Law § 121-1502(a).)

• Fee. The fee for the notice of registration is $250 (N.Y. Partnership Law § 121-1502(a)).

• Filing Process. For information on the filing process, see Filing Process.

• Authorization Granted. The foreign LLP is authorized to do business in New York when the notice of registration is filed

with the DOS, unless a later effective date is specified (N.Y. Partnership Law § 121-1502(a)).

Publication

• Within 120 days after filing the notice of registration, the foreign RLLP must publish a copy or notice containing the

substance of the notice of registration in two separate newspapers (one printed daily and one printed weekly) in the

county where the office of the foreign LLP is located. The county clerk must designate the newspapers.

• Publication must occur once a week for six consecutive weeks. The printer or publisher of each newspaper will provide

the foreign RLLP with an affidavit of publication.

• The notice must include:

• the foreign RLLP’s name;

• the date the notice of registration was filed with the DOS;

• the foreign RLLP’s jurisdiction and date of organization;

• the New York county where the foreign RLLP’s principal office is located;

• the street address of the foreign RLLP’s principal business location, if any;

• a statement that the SOS has been designated as agent for service of process and the post office address within or

outside New York where the SOS must mail a copy of any process served on the SOS;

• the name and New York address of the foreign RLLP’s registered agent, if any, and a statement that the registered

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agent is to be served with process;

• the address of the office required to be maintained in the foreign RLLP’s jurisdiction of organization or, if not required,

the foreign RLLP’s principal office;

• the name and address of the authorized officer in the foreign RLLP’s jurisdiction of registration where a copy of its

registration is filed or, if no public filing is required, a statement that the RLLP will provide a copy of its registration

and any amendments on request (including English translations under oath of the translator if these documents

are not in English), and the name and post office address of the person responsible for providing those copies;

and

• the character or purpose of the foreign RLLP’s business.

• (N.Y. Partnership Law § 121-1502(f)(II)(A).)

• The foreign RLLP must file a certificate of publication (see Department of State: Certificate of Publication Form (Foreign

LLP)), along with affidavits of publication, with the DOS (see Filing Process).

• The filing fee for the certificate of publication is $50 (N.Y. Partnership Law § 121-1502(f)(II)(A)).

• Foreign LLPs that fail to publish notice within 120 days after registration will have their authority suspended until the

publication requirements are met (N.Y. Partnership Law § 121-1502(f)(II)(A)).

Registered Agent and Office

• Secretary of State as Agent. Each qualifying foreign corporation, LLC, LP, and RLLP must designate the SOS as its

agent for service of process (NYBCL § 304, NY LLCL § 301, and N.Y. Partnership Law §§ 121-104 and 121-1502(a)(v)).

• Registered Agent. Foreign entities are also permitted, but not required, to designate a registered agent on their

applications for authority or notices of registration (NYBCL §§ 305(a) and 1530(a)(7), NY LLCL §§ 302(a) and

1306(a)(7), and N.Y. Partnership Law §§ 121-105(a) and 121-1502(a)(vi)).

• Registered Office. Foreign entities are not required to have a registered office in New York. If they have a registered

agent though, they must list the agent’s address in New York on their application for authority or notice of registration

(NYBCL §§ 1304(a)(7) and 1530(a)(7), NY LLCL §§ 802(a)(5) and 1306(a)(7), and N.Y. Partnership Law §§ 121-105(a)

and 121-1502(a)(vi)).

Office and County Location

• Corporations, LLCs, and LPs. A foreign corporation, LLC, and LP must identify in its application for authority the New

York county where its office will be located (NYBCL § 1304(a)(5), NY LLCL § 802(a)(3), and N.Y. Partnership Law §

121-902(a)(3)). The office does not have to be where the corporation, LLC, or LP conducts business (NYBCL §

102(a)(10), NY LLCL § 102(s), and N.Y. Partnership Law § 121-101(j)).

• PCs and PLLCs. A foreign PC and PLLC must identify in its application for authority the New York city, incorporated

village, or town and county where its office will be located (NYBCL § 1530(a)(5) and NY LLCL § 1306(a)(5)). The office

does not have to be where the PC or PLLC conducts business (NYBCL § 102(a)(10) and NY LLCL § 102(s)).

• RLLP. A foreign RLLP is not required to provide a New York county location in its notice of registration but must publish

notice of its registration in newspapers of the New York county where its principal office is (N.Y. Partnership Law §

121-1502(f)(II)(A)).

• Venue. Regardless of where it transacts business or maintains its actual principal office or facility, a foreign corporation

or LLC is subject to litigation for venue purposes in the New York county that it lists on its application for authority

(CPLR 503 and Carlton Group, Ltd. V. Prop. Markets Group, Inc., 21 N.Y.S.3d 704, 705 (2d Dep’t 2015)).

• Publication Costs. The cost of publishing copies or notices (of either the application for authority or registration) in

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county newspapers varies from county to county. New York County (Manhattan) is generally the most expensive.

Filing Process

• Forms. Forms of applications for authority and notice of registration are available on the DOS’s website (see

Department of State: Forms List). Applicants are not required to use the DOS forms.

• Filing and Payment Methods. Filings, along with any supporting documents, may be mailed, hand-delivered in person,

or faxed to the DOC. For more information on filing methods and acceptable payment methods, see Practice Note, Filing

Documents with the Department of State (NY): Filing Methods. Many entities pay a third party service company to

handle the submission of documents to the DOS for filing.

• Processing Times. The normal processing time for the DOS to file documents is within seven business days (N.Y.

Exec. Law § 96(11)(d)), excluding mailing time. To check the status of the filing, access the searchable Corporation and

Business Entity Database on the DOS’s website, which is usually current through the previous day (see Department of

State: Corporation and Business Entity Database). Expedited filing is available for an additional fee (19 NYCRR §

154.1). For more information, see Practice Note, Filing Documents with the Department of State (NY): Expedited

Processing.

• Filing Confirmation. After the DOS files the documents, the DOS will mail a filing receipt (which is proof of filing) to the

filer listed on the filing’s backer. The DOS will overnight the filing receipt if requested and a prepaid shipping label is

provided. Once received, filers should verify that the filing receipt information is correct and file the filing receipt with the

foreign entity’s records. The DOS will not issue duplicate filing receipts unless the original was never received (19

NYCRR § 150.5).

Periodic Reports

Corporations

• Biennial Statement. A foreign corporation (except any farm corporation) that is authorized to do business in New York

must file a biennial statement with the DOS stating:

• its chief executive officer’s name and business address;

• its principal executive office address; and

• the post office address within or outside New York where the SOS must mail a copy of any process served on the

SOS as agent for the foreign corporation.

• (NYBCL § 408(1).)

• Filing Period. The foreign corporation must file the statement every two years during the calendar month in which its

original application for authority was filed or became effective (NYBCL § 408(3)).

• Form. Foreign corporations may file biennial statements online on the DOS website (see Department of State:

E-Statement Filing Service). If the foreign corporation cannot file online, it must use a form prescribed by the DOS

(NYBCL § 408(2)). It can request a paper biennial statement form from the DOC’s Statement Unit by:

• fax at (518) 486-4680; or

• email at corporations@dos.ny.gov.

• Fee. The filing fee for a biennial statement is $9.

• For more information on biennial statements, see Department of State: FAQ – Biennial Statements.

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Professional Service Corporations

• Annual Statement. A foreign PC must file an annual statement with the relevant Licensing Authority:

• listing the names and residential addresses of each shareholder, director, officer, and corporate employee licensed

by that Licensing Authority;

• certifying that the above individuals intending to practice a profession that the PC is authorized to practice in New

York are licensed to practice that profession in New York; and

• if the foreign PC is providing health services, certifying that each shareholder, officer, and director of the corporation

is licensed to practice the profession.

• Filing Period. The foreign PC must file the statement annually on or before the date set by the Licensing Authority.

(NYBCL § 1531.)

Limited Liability Companies and Professional Service Limited Liability

Companies

• Biennial Statement. A foreign LLC that is authorized to do business in New York must file a biennial statement with the

DOS stating the post office address within or outside New York where the SOS must mail a copy of any process served

on the SOS as agent for the foreign LLC (NY LLCL §§ 301(e)(1) and 1305).

• Filing Period. The foreign LLC must file the statement during the calendar month that its original application for

authority was filed or became effective (NY LLCL §§ 301(e)(1) and 1305).

• Form. A foreign LLC may file the biennial statement online on the DOS website (see Department of State: E-Statement

Filing Service). If the foreign LLC cannot file online, it must use a form prescribed by the DOS (NY LLCL §§ 301(e)(1)

and 1305). It can request a paper biennial statement form from the DOC’s Statement Unit by:

• fax at (518) 486-4680; or

• email at corporations@dos.ny.gov.

• Fee. The filing fee for a biennial statement is $9.

• For more information on biennial statements, see Department of State: FAQ – Biennial Statements.

Registered Limited Liability Partnerships

• Five-year Statement. A foreign RLLP must file an LLP statement with the DOS stating:

• the RLLP’s name that it is using to conduct business in New York;

• the address of the RLLP’s principal office;

• the post office address within or outside New York where the SOS must mail a copy of any process served on the

SOS as agent for the foreign RLLP; and

• a statement that it is a foreign LLP.

• (N.Y. Partnership Law § 121-1502(f).)

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• Filing Period. A foreign RLLP must file an LLP statement within 60 days before the fifth anniversary of the effective date

of its notice of registration and every five years after (N.Y. Partnership Law § 121-1502(f)). Expedited filing is not

available.

• Form. The LLP statement form is mailed to the LLP’s principal office two months before its due date. The RLLP must

use the LLP statement provided by the DOS. If the RLLP does not receive a statement, it should contact the DOC’s

Statement Unit to request a copy by:

• mail at One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0002;

• fax at (518) 486-4680; or

• email using the DOS’s email contact form.

• Fee. The filing fee for the LLP statement is $50 (N.Y. Partnership Law § 121-1502(f)(I)(i)).

• For more information on the LLP statement, see Department of State: LLP 5 Year Statement FAQs.

Other Considerations

• Licenses, Permits, or Certifications. Consider whether there any state, county, or city licenses, permits, or

certifications required to conduct the entity’s business. For more information, see New York State: Services: Licenses

and New York City: NYC Resources: Business Assistance: Licenses, Permits and Inspections.

• Tax Information. The business entity may be subject to state and local tax requirements. New York State tax

information may be obtained by the calling the Tax Department or accessing its website (see Tax Department:

Businesses and Contact Us). New York City tax information is available on the New York City Department of Finance

website (see NYC Department of Finance: Taxes).

• General Employer Information. For information on state employment requirements and guidelines, access the New

York State Department of Labor website (see the New York State Department of Labor: Businesses).

• Workers’ Compensation. For information on state workers’ compensation, access the New York State Workers’

Compensation Board website (see New York State Workers’ Compensation Board).

Withdrawal or Termination of a Foreign Entity

Surrender of Authority or Withdrawal

• Corporations. Authorized foreign corporations may surrender their authority to do business in New York by submitting a

certificate of surrender of authority to the DOS. The DOS will not file the certificate of surrender unless the consent of the

Tax Department is attached. The foreign corporation’s authority terminates when the DOS files the certificate of

surrender. (NYBCL § 1310.) The fee is sixty dollars (NYBCL § 104-A(o)). The DOS provides a certificate of surrender of

authority form on its website (see Department of State: Certificate of Surrender of Authority Form (Foreign Corporation)).

• Limited Liability Companies or Limited Partnerships. Authorized foreign LLCs and LPs may surrender their authority

to do business in New York by filing a certificate of surrender of authority with the DOS. The foreign entity’s authority

terminates upon filing. (NY LLCL § 806(a) and N.Y. Partnership Law § 121-905(a).) The fee is sixty dollars (NY LLCL §

1101(m) and N.Y. Partnership Law § 121-1300(m)). The DOS provides a form of a certificate of surrender of authority on

its website (see Department of State: Certificate of Surrender of Authority Form (Foreign LLC) and Certificate of

Surrender of Authority Form (Foreign LP)).

• Limited Liability Partnerships. A foreign LLP may terminate its status as a New York RLLP by filing a certificate of

withdrawal with the DOS. The foreign LLP’s authority terminates when filed, unless a later date (not to exceed sixty days

from the filing date) is specified. The fee for the certificate of withdrawal is $60. (N.Y. Partnership Law § 121-1502(e).)

The DOS provides a form of a certificate of withdrawal on its website (see Department of State: Certificate of Withdrawal

Form (Foreign LLP)).

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Termination

Corporations, Limited Liability Companies, or Limited Partnerships

• A foreign authorized corporation, LLC, or LP must file a certificate of termination of existence with the DOS if:

• it dissolves;

• it merges into a foreign entity of the same type;

• it is consolidated with a foreign entity of the same type; or

• its authority or existence is terminated or cancelled in its jurisdiction of formation.

• Acceptable certificates of termination of existence are either:

• a certificate from the secretary of state (or similar official) of the entity’s jurisdiction of formation confirming that one of

the termination events has occurred; or

• a certified copy of a court order in the entity’s jurisdiction of formation directing the entity’s termination or surrender of

authority.

• The foreign entity’s authority terminates when the certificate of termination is filed.

(NYBCL § 1311, NY LLCL § 807, and N.Y. Partnership Law § 121-906.)

• The filing fee for the certificate of termination is $60 if filed by the entity (NYBCL § 104-A(p), NY LLCL § 1101(n), and

N.Y. Partnership Law § 121-1300(n)).

The certificate of termination of existence submitted to the DOS must include a white cover sheet. The DOS provides sample

cover sheets. See:

• Department of State: Certificate of Termination of Existence Foreign Corporations.

• Department of State: Certificate of Termination of Existence Foreign LLC.

• Department of State: Certificate of Termination of Existence Foreign LP.

Limited Liability Partnerships

• A foreign LLP must file a certificate of withdrawal with the DOS within thirty days after it ceases to be a RLLP or LLP in

the jurisdiction governing its partnership agreement.

• The fee for the certificate of withdrawal is $60 (N.Y. Partnership Law § 121-1502(e)).

• The DOS provides a form of a certificate of withdrawal on its website (see Department of State: Certificate of Withdrawal

Form (Foreign LLP).

New York courts do not have subject matter jurisdiction to dissolve a foreign entity (Raharney Capital, LLC v. Capital Stack

LLC, 25 N.Y.S.3d 217, 219 (1st Dep’t 2016)).