No, you don't need to have filed a return. You do need to file a Form W-7 with the internal revenue service (not immigration). The bigger question is whether or not you can qualify for a visa by buying and selling real estate. It would probably be a good idea to consult with a knowledgeable attorney with experience in business immigration.
There are several layers to your posting/ The laws as to non US Citizens being able to incorporate is based on the specific legislation and regulations of the US State in which you wish to incorporate. This would be needed to be examined by an attorney who is licensed in that state. The ability to carry on business in the State has specific rules and license requirements. The ITIN number is provided by the IRS and based on specific guidelines that would be best answered by a tax attorney.
Your ability to work and stay in the US is subject to immigration law and you would need to consult with an experienced immigration attorney who can examine your financial and immigration history and provide a legal opinion as to possible immigration benefits available to you. Ideally, you should consult with a business immigration attorney who has assisted non US Citizens with corporate and tax issues. Good luck.
Legal disclaimer: The statement above is provided by CC Abbott is based on general assistance and not intended to be a legal opinion because not all the facts are provided. The person requesting information and all others reading the answer should retain an attorney who is permitted by the state bar within the jurisdiction who can examine the complete facts and provide a legal opinion on your case. All information provided in the above answer and other information provided by CC Abbott does not create an attorney/client relationship within any state of Federal law.
I agree with Attorney Ashman.
(213) 394-4554 x0 Mr. Shusterman is a former INS Trial Attorney (1976-82) with over 35 years of immigration experience. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship.
Exceptions 1 through 5 where no tax return is required when first submitting an ITIN application to the IRS in conjunction with earning income in the US as a foreignor.
1. Passive Income: Income from things like annuities, dividends, interest only, or pensions would fall into this category. Please consult a lawyer to confirm that your income is truly "passive" as defined by the IRS.
2. Other Income: Foreign professors, researchers or scholars who receive fellowship, grant or scholarship income may be able to claim exemption 2. Please consult a lawyer to confirm that your income falls into the "other" category under exemption 2 by the IRS.
3. Mortgage Interest: No tax return would be required when filing for an ITIN where an individual has a home mortgage on real estate in the US.
4. US Real Estate Disposition by a Foreign Person: Where individuals buy real estate in the US as a foreignor, said purchase falls within exemption 4. Thus, no tax return would be required when applying for an ITIN; however, forms 8288, 8288-A and/or 8288-B may still be required by the IRS. Please consult a lawyer to discuss.
5. Treasury Decision (TD) 9363: Where an individual has a reporting requirement under TD 9363, submits form 13350 and submits form W-7 for an ITIN, a tax return will not be required. Please consult a lawyer to confirm.