India has been receiving increased attention from overseas businesses since 1991, when its economy was opened for foreign direct investment. In tandem with this increase, India has also been receiving more foreign nationals who come to visit for pleasure, to explore business opportunities or take up employment, among other things. Indian visa and immigration laws were not equipped...
India has been receiving increased attention from overseas businesses since 1991, when its economy was opened for foreign direct investment. In tandem with this increase, India has also been receiving more foreign nationals who come to visit for pleasure, to explore business opportunities or take up employment, among other things.
Indian visa and immigration laws were not equipped to handle the enhanced flow of business travelers and international workers. This is largely because the laws were created in the post independence period when the focus was to determine who qualifies as an Indian citizen. The Ministry of Home Affairs (MHA) has over the past 20 odd months issued multiple guidelines to deal with various issues pertaining to business and employment visas. This has brought about some clarity and predictability to the process and has stemmed misuse of the visa categories.
Various statutes passed by Indian Parliament and the guidelines issued by the MHA and other Indian Central Government departments from time to time regulate the entry, stay, movement and departure of foreign nationals. These include The Foreigner's Act, 1946, The Registration of Foreigners Act, 1939 and The Citizenship Act, 1955, with allied rules and periodic amendments.
Almost all foreign nationals need appropriate visas. Visas are not required for registered Persons of Indian Origin (PIOs) or for registered Overseas Citizen of India (OCI), which are granted to certain foreign nationals of Indian origin. Information about these two special categories is provided later in this article, which is focused on visas that are required to conduct business or undertake employment.
Visa applications should be filed at the Indian diplomatic post which has jurisdiction, in his or her country of citizenship or country of residence; provided if, in the latter instance, the applicant has resided there as a permanent resident for at least two years. It is important to note that Indian Consulates always reserve the right to refer an application to the MHA or to the consular post in the country of nationality for further action.
The Indian Bureau of Immigration handles the immigration services at the major international airports in India and registration of foreign nationals through specific police departments. The field officers in charge of immigration and registration of foreign nationals at Delhi, Mumbai, Bengaluru, Chennai, Hyderabad Kolkata and Amritsar are called Foreigners Regional Registration Officers (FRROs). Foreign nationals that do not fall under the jurisdiction of these major cities are required to register with the concerned Superintendents of Police that act as Foreigner's Registration Officers (FROs) in the other districts within India.
Foreign nationals entering India on an employment visa, which is valid for more than 180 days, are required to register with the Foreigners Registration Officer under whose jurisdiction they propose to stay. This should be done within 14 days of arrival in India, irrespective of their actual period of stay, unless the visa contains any specific endorsement regarding validity, duration of stay and/or registration. The foreign national is required to appear in person for registration before the appropriate Registration Officer. Registration is important and failure to register may lead to punishments and/or penalties.
Nationals of certain countries are required to register within 24 hours to 7 days of their arrival in India while other are required to report to the FRRO each time they enter the country. Failure to register is an offence under the Registration of Foreigner’s Act, 1939 and the offender may be imprisoned for a maximum period of one year and be subject to a fine. An additional fee is levied if there is any delay in registering with the FRRO.
Business Visas
A business visa is appropriate for those who want to engage in business, establish or explore the possibility of establishing an industrial or business venture or wish to purchase or sell products in India. It may also be used to attend technical, business support or board meetings, recruit manpower, and pre-sale or post sale activities not amounting to the actual execution of any contract or project. Business visas are not granted to individuals whose business travel is connected to the money lending or petty trading business.
Business visas are generally granted for multiple entries, with a validity of six months to five years except for American nationals who may be granted business visas, which are valid for 10 years. A business visa allows an individual to stay in India for a maximum period of 180 days at a time. Individuals who have direct investments or are involved in a joint venture in India or are employed in senior-level, key positions, by companies that have investments or joint ventures in India may be permitted to stay for extended periods on business visas. There is no annual limit on the total number of days he or she can remain in India.
Business visas are generally issued with clear notifications determining the visa holders' applicable terms of stay, including whether or not they must register with local authorities upon arrival. Business visas will be endorsed with either "each stay not to exceed 6 months and registration not required" or "registration required within 14 days."
Business visas may be extended in India for a total period of up to five years from the visa's initial date of issuance if the gross sales or turnover from the foreign national's activities in India equal or exceed an annual amount of approximately US $220,000 per year.
Employment Visas
Indian immigration laws do not specify the requirements for an employment visa but provide that only foreign nationals with high levels of professional skills and qualifications may be granted visas to take up employment in India. Employment visas are not granted for jobs in positions where large numbers of qualified Indians are readily available or for jobs that are considered to be routine, ordinary, secretarial or clerical. Consular and immigration officials consider an applicant's academic and professional qualifications to fill the proposed position in India, and the availability of Indian workers to fill the position.
Employers are required to pay foreign nationals a minimum monthly salary, which is not less than US$ 25,000 for the entire duration of employment in India. Any perquisites such as housing, telephone, transport, entertainment etc., which are received in kind, should not be included when computing the salary of the individual. Sponsoring employers are also required to certify that the visa holder will comply with all applicable tax requirements, including tax deductions at source and the timely filing of tax returns in India.
All employment visa applications must be sponsored by a duly registered Indian entity. A foreign company that does not have a base in India, in the form of a project or branch office, a subsidiary, or a joint venture, cannot sponsor an applicant's employment visa. However, Indian companies that have awarded a contract to a foreign company can sponsor an applicant's employment visa. In such instance, the Indian sponsor is not necessarily the legal "employer" of the foreign national but supports the visa application as an "employer" in a limited manner.
Employment visas are generally employer and location specific, which prevents foreigners from seeking new jobs on the same visa. Furthermore, the visa is dependent on the employment contract and it follows that if the contract is terminated the visa is no longer valid, and the foreign national is required to leave the country.
Employment visas are processed on a case-by-case basis and historically have been granted for one year even if the duration of employment is longer than a year but can be issued for a period up to two years, at the discretion of the consular officer. Employment visas may also be granted with a validity of up to three years to take up employment in the IT, software, or IT enabled sectors. It is possible to get an extension of the visa in India for additional 12-month periods for up to a total of five years from the date of initial issue of the visa. The extension procedure and processing time differs in every jurisdiction within India.
The spouse and dependent family members accompanying the principal applicant who is on an employment must apply for a dependent or entry visa, generally after the principal applicant has obtained the employment visa. These entry visas are issued for the validity period of the principal applicant's visa. A spouse on an entry visa may change her visa status, within the country, to an employment visa provided she fulfills all the requirements for an employment visa.
Persons of Indian Origin (PIO)
Foreign nationals of Indian origin cannot travel to India without a visa except if they are registered under one of the two schemes offered to qualifying individuals. A person of Indian origin (PIO) can apply for a PIO card at an Indian Consulate, which obviates the need for a visa to undertake employment or engage in business activities in India. PIO cards are issued to specific foreign nationals who are of Indian origin or who are married to Indian nationals. PIO cards are also issued to foreign-national children of Indian parents.
A PIO Card is valid for fifteen years. PIO cardholders can undertake employment in India but they cannot exercise any political rights, visit restricted or protected areas without permission, or undertake mountaineering, research and missionary work without additional permission.
FRRO registration is not required if the PIO card holder's stay in India does not exceed 180 days. However, if the stay exceeds 180 days, the PIO Card holder has to register, at the very latest, within 30 days of the expiry of 180 days with the concerned Registration Officer.
Overseas Citizenship of India (OCI)
Eligible foreign nationals including, among others, certain PIO’s and individuals whose parents or grand parents migrated from India after January 26, 1950 and their minor children may qualify for Overseas Citizenship of India. This can only be possible if the applicant belongs to a country, which allows dual citizenship in some form or the other.
Qualifying citizens of all countries other than those who have ever been citizens of Pakistan and Bangladesh may avail of this facility. Benefits of OCI status include a lifelong multi-entry, multi-purpose visa to visit, live or work in India and certain economic, financial and educational privileges. An OCI cardholder is not required to register with the FRRO for any length of stay in India.
Restrictions on Certain Nationals
Special procedures and lengthy processing times apply for nationals of Afghanistan, Pakistan, Sri Lanka, Bangladesh and China. Applications from Pakistani nationals and from persons with a Pakistani background are subject to additional checks and usually result in a delay of at least 30 days. Additionally, such individuals are currently being issued visas permitting only a single entry.