I am a US citizen married (in NY) to a UK citizen and we live in
England.  We have recently created an LLC incorporated in New
Hampshire which is a vehicle for my husband?s consultancy work in the
USA, and we also own property there which we visit several times a
year.  My husband does not take a salary but will be paid via
dividend. We will be paying tax in both the US and UK.  What visa
should my husband apply for to enter the US?  He has been able to
travel under the Visa Waiver scheme.  Does he need some form of work
permit or a social security number?  His clients are American but most
of the work is completed in the UK.  I hope someone can help us!

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Request for Question Clarification by answerguru-ga on 09 Nov 2006 13:37 PST

Hello ellie100-ga,

I believe I can point you in the right direction, but I have a couple
of follow-up questions for you:

1. Will your husband be doing *any* work while physically in the US?
This includes meeting clients.

2. What is the breakdown of the ownership in the LLC?

3. Does your husband have any corporate structures and/or income from
a UK-based entity?

Thanks,
answerguru-ga

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Clarification of Question by ellie100-ga on 10 Nov 2006 03:00 PST

1. Will your husband be doing *any* work while physically in the US?
This includes meeting clients. Yes, he will meet clients.

2. What is the breakdown of the ownership in the LLC? 50% myself
(American) and 50% husband (British).

3. Does your husband have any corporate structures and/or income from
a UK-based entity? No corporate structure but earns some money working
as a freelancer in England.

Thank your for your help so far!

Hello ellie100-ga,

Based on your question and clarification, I have laid out the
following strategy for obtaining the correct permits for the scenario
you have described.

Before continuing, however, I wanted to ensure that you are aware of
the Google Answers Terms of Service. The information below is not
intended to be a substitute for professional advice (legal in this
case).

The following resource provides a comprehensive description of
permit-related matters. Specific to you situation is the B1/B2 Visa -
this page also contains information about the visa waiver scheme:

http://www.workpermit.com/us/employer_b1_b2.htm

From this page, we can determine that the visa waiver scheme is the
simplest alternative:

"For those who come under the visa-waiver scheme, details of which are
provided below, there is usually no need to apply for a visit visa at
all if the candidate wishes to visit the US for three months or less."

However, by coming in under this scheme, you husband would be
restricted from doing any of the following:

"The following activities require a working visa, and may not be
carried out by business visitors:

Running a business. 
Gainful employment. 
Payment by an organization within the US. 
Participating as a professional in entertainment or sporting events."

Considering that you would like to use your New Hampshire LLC to
collect revenue, and then pay dividends to your husband from there,
the third point could pose a problem. It essentially states that he
cannot, for example, take a cheque from a client and deposit it
directly into the LLC bank account.

I can think of a couple of ways to address this problem. For each, you
may consider speaking to a lawyer to obtain a full understanding of
the implications relevant to your personal situation:

1. Receive revenue in a way where he is not involved while in the US.
One example would be to use an accountant or bookeeper to perform this
service for your LLC.

2. Delay the receipt of revenue until after he has returned to the UK.

3. If you are with him, you can handle any payments you receive for
the LLC while in the US.

So, if you can make one of the three options above work for you,
continuation of the visa waiver scheme is a valid approach for
resolving work permit status.

Now we need to consider tax implications and the potential for needing
an SSN. Since an SSN can only be issued for people who are permanent
residents, your husband would not be eligible as a business visitor.
However, if there were ever a situation where he would need to pay US
taxes, he could obtain a Taxpayer Identification Number (TIN) instead.
More information on the ITN is available from here:

http://www.ssa.gov/pubs/10096.html#taxpurposes

This would only be necessary because of the fact that the LLC is
US-based. If it were UK-based, he would not even need to deal with the
IRS. He would simply pay dividend taxes in the UK. So you have some
choice as far as the country you are taxed in.

I hope this has clarified your situation - if you are unclear on any
of the information above, please post a clarification and I will try
to respond promptly.

Thank you for using Google Answers :)

Cheers,
answerguru-ga

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Request for Answer Clarification by ellie100-ga on 11 Nov 2006 02:15 PST

Please clarify:  you have suggested a number of ways in which
receiving revenue would be OK.

We would expect the LLC to invoice clients and for them to pay by bank
transfer into a US bank account in the name of the LLC.

This payment would ordinarily take place 30 days after receipt of
invoice by which time husband would be back in the UK. If however the
bank to bank transfer took place when he happened to be back on
another trip would this be a problem?

Many thanks for your help and valuable answers.

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Clarification of Answer by answerguru-ga on 11 Nov 2006 08:47 PST

Hi,

What you described would not be a problem because:

(a) The bank account is in the name of the LLC, not your husband
(b) Your husband would not be physically handling cash/cheques etc.
from the clients.

It is immaterial if a client sends a bank-to-bank transfers to the LLC
while your husband is in the country. Since your husband is not
actively involved in that transaction, it would not be a violation.

I hope that answers your question :)

Cheers,
answerguru-ga