Filing a FinCEN BOI report is no longer required (for now) — though your startup may still want to file one anyway.
Here's what you need to know:
Previously, most startups were required to file FinCEN BOI reports by various deadlines:
- December 31 for startups incorporated before 2024
- 90 days after incorporation for startups incorporated in 2024
- 30 days after incorporation for startups incorporated after 2024
But submitting these reports is no longer required (for now). A recent court order has prohibited the enforcement of the FinCEN BOI report requirement nationwide. Your startup can still submit a report, but the filing is now voluntary. Here's what FinCEN says:
"In light of a recent federal court order, reporting companies are not currently required to file beneficial ownership information with FinCEN and are not subject to liability if they fail to do while the order remains in force. However, reporting companies may continue to voluntarily submit beneficial ownership information reports.
More information is available on FinCEN's website at https://www.fincen.gov/boi"
Please note the situation could change quickly. The court order that suspended the filing requirement is only a preliminary one in a larger case, and the U.S. Department of Justice has already challenged it. That means your startup could suddenly be required again to file a BOI report with little notice.
It's up to you whether or not to file by your startup's original deadline while this court order remains in effect. Some startups may want to file anyway to remove the risk of a late filing in the event the situation changes. If you choose not to, many startup attorneys are recommending that you still be ready to file at a moment's notice.
Want to proceed with filing a BOI report anyway? You can file your optional report directly with FinCEN. While Clerky has a tool for this, FinCEN has temporarily suspended API submissions for everyone, including Clerky.
Never heard of BOI reports before? Check out this help center article to learn more about them.
The above reflects our understanding of the situation as of December 5, 2024. We'll continue to monitor this ongoing lawsuit closely.
If you're incorporating a new startup soon, you might be able to save around $400. How? By avoiding the 2024 Delaware franchise tax.
Delaware franchise taxes aren't pro-rated, which means that a Delaware corporation incorporating on December 31, 2024 will have to pay the same franchise tax for 2024 as one that incorporated on January 1, 2024. If you have investors ready to wire funds, this probably isn’t a big deal. But if you're not in a rush, it could be a waste of money.
To avoid this, we can help you take advantage of a little-known feature of Delaware law that allows you to specify the effective date of an incorporation. If you specify January 1, 2025, your corporation won't exist until then, which means it won't need to pay the 2024 franchise tax. This feature is available to all our customers at no extra charge.
Of course, you won't be able to do other legal paperwork or open bank accounts until the incorporation is effective. So why not just wait until January 1 to submit your incorporation paperwork? Two reasons:
You want to make sure no one else takes your startup's name.
It can feel like a minor miracle to find a name you like that isn't already taken. By filing your incorporation paperwork, you can secure the name you want when the filing is accepted, even if the incorporation won’t be effective until later. You could reserve the name instead, but that adds unnecessary expense and complexity to the process.
You want to hit the ground running in 2025.
Maybe you’ve decided to wait until after the end-of-year holidays to focus on your new startup. Filing your incorporation paperwork before you ring in the new year can help save you some time in 2025.
In addition, the start of a new year can be busy for the Delaware Division of Corporations, which can lead to delays in processing new incorporations. Filing ahead of time can help you beat the crowds and avoid those delays.
We've made January 1 effective date incorporations available to startup founders for many years, and are excited to bring them back again. From now until the end of the year, you'll be able to have your incorporation take effect on January 1, 2025 when you incorporate a new startup on Clerky.
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Of course, if you prefer, you can still choose to have it take effect immediately when the Delaware Division of Corporation files it.
To get started, sign up for Clerky now. Questions? Feel free to reach out!
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New VIP developer perks from Anthropic:
- $500 in API credits for Claude (now supporting tool use!)
- Priority support
- Increased rate limits
What's new:
- You can now file your BOI report through Clerky
- We've arranged for special perks worth up to $3,000 that help non-US founders take advantage of the International Entrepreneur Rule
- Clerky handbooks are now available as free ebooks on Apple Books and Google Play, as well as in EPUB and PDF format for download online
Even more new perks:
Exciting news for startup founders who are looking to enter the US! The International Entrepreneur Rule (IER) might now be easier than ever to use, after recent updates by U.S. Citizen and Immigration Services (USCIS) (more on that below).
To help startups take advantage of this potentially improved process, we've arranged for special IER perks worth up to $3,000:
- For a limited time, Mercury** is offering $2,000 in cash to Clerky startups who deposit the IER fundraising requirement amount ($264,147) within 90 days*
- Ellis Legal, an immigration law firm, is offering Clerky startups $1,000 off one IER application
- SW Law Group, an immigration law firm, is offering Clerky startups 10% off one IER application
To get the Mercury perk, make sure to apply for a Mercury account from your formation checklist on Clerky. To get the perks for Ellis Legal or SW Law Group, go to the Perks page for your startup's team on Clerky and then look for the Immigration category.
On top of these perks, Clerky is also the easiest and fastest way to meet the IER requirements:
- Incorporate Delaware corporation
- Issue stock to founders
- Applicants have to own at least 10% of the startup
- We're the only startup incorporation service to help you get the complete set of attorney-recommended 83(b) election evidence 😎 (requires paid add-on).
- Open Mercury account without having to wait for an EIN from the IRS
- Mercury can help you open an account even while you're waiting for your EIN, so you can get started closing investors as soon as possible. Just make sure to start your Mercury application from your formation checklist on Clerky to enable this.
- Issue safe or convertible notes
- Make sure to issue at least the amount required for the IER. As of July 2024, the threshold is $264,147.
* Earn a cash bonus of $1,000 by depositing at least $20,000 within 90 days of account opening and an additional cash bonus of $1,000 by depositing at least $264,147 within 90 days of account opening. This offer can't be combined with any other offers.
** Mercury is a financial technology company, not a bank. Banking services provided by Choice Financial Group and Evolve Bank & Trust, Members FDIC.
What is the IER?
The IER allows USCIS to grant startup founders parole to enter the US. Specifically, the IER makes it possible for most non-US startup founders to enter the US as long as they've raised more than $264,147 (as of July 2024) from investors meeting certain criteria. You have to own at least 10% of your startup, and up to three co-founders from the same startup can apply. You can stay in the US for 2.5 years (possibly up to 5) and your spouses can even work in the US too.
The IER has been available since 2021 but has not been popular due in part to very long processing times and unclear requirements. USCIS might be fixing that though. Late last week, they announced that they've worked through the backlog of applications and are actively encouraging people to apply. They also published new FAQs that make it easier for founders to apply by giving more clarity around the process.
We can't be certain, but many are speculating that the announcement and changes signal that USCIS wants to get more startup founders into the US and will be processing applications faster.
Things to consider
The IER could become a great option for non-US startup founders and we're excited for that possibility, but it's important to note:
- Parole isn't the same thing as a visa and there are some practical differences. You should consult an immigration attorney to determine what's best for your specific circumstances.
- Many immigration attorneys recommend thinking of the IER as a backup to a visa. If you're applying for a visa to be able to work on your startup in the US, you can think of the IER as a backup that you might want to apply for at the same time. Or, the IER might be your only option if you're not eligible to apply for a visa.
- The USCIS has specific requirements for the IER. For example, there are requirements that most well-known startup investors will meet, but that not all startup investors will meet. Please don't take any actions in anticipation of using the IER without first consulting an immigration attorney to make sure you take all the requirements into account.
- The funding threshold ($264,147 as of the date of this post) is adjusted for inflation every three years and is next due to be adjusted in October 2024. Based on recent inflation data, we expect the funding threshold to increase when it's adjusted.
- When a new president is elected this November, the new administration may have different views on the IER. While the USCIS may be signaling that they're eager to grant more parole now, this may change when a new administration takes over in January.
- Some countries may have an exit tax for startups that move to another country (like the US). If you're in such a country and your startup raises money from investors, your startup could be considered valuable and trigger an exit tax. You should consult a tax advisor in your country if you have questions about this.
Finally, please keep in mind that it's too soon to know what startups will actually experience with the IER. Nevertheless, the recent updates by the USCIS are promising and might make the IER worth trying in more scenarios. Here at Clerky, we're excited for the prospect of the IER living up to its potential and are excited to help startups who want to try it out.
Good luck!
We're thrilled to announce our new BOI reporting tool! You can now submit all your startup's beneficial ownership information to FinCEN without ever leaving Clerky.
In case you hadn't heard, most startups formed in the US now need to submit ownership information to FinCEN, a government bureau that helps detect financial crimes. This new requirement is a consequence of the Corporate Transparency Act (CTA), which went into effect in January 2024.
Most Clerky startups now need to file a BOI report, with limited exceptions. Please refer to the chart below for information about deadlines:
The penalties for failing to file by these deadlines can be severe. That's why we've made staying compliant as easy as possible. As you approach your deadline, we'll send you reminder emails and in-app notifications. We'll also remind you to submit an updated report if we detect that you've changed any of your information, like your startup's name, address, or beneficial owners.
When the time comes to file, you can submit your information directly from Clerky. We'll pre-fill the report with information we already have from your legal paperwork to make things as easy as possible.
It's worth noting that a recent court decision in Alabama found the Corporate Transparency Act unconstitutional. The ruling won't affect most startups, only members of the plaintiffs in that particular lawsuit, but we're closely monitoring the development of any cases that may impact this requirement more broadly.
Do you still have questions about your startup's BOI report? Are you wondering whether you should get a FinCEN ID to make the process easier? You can find answers to these common questions and more in our help center article What is a BOI report?.
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What's new in our software:
- Non-US founders can now apply for EINs through Clerky
- Startups can now apply for a Mercury bank account while waiting for their EIN
- We've just launched a cap table integration with Pulley
We've also added new perks, plus a limited-time offer:
- Efficient Capital Labs – 25 basis point discount on ECL's financing fees
- Pulley – 15% off your first year when you sign up through Clerky
- Limited-time offer! Mercury — $1,000 cash for eligible Clerky startups that open a Mercury account (minimum deposit required)