As many maybe aware, Indian immigration is in a state of flux.
Recent changes instituted by various Indian Consulates and High
Commissions around the globe have raised many questions for clients
and professional advisors in relation to appropriate visa
categories and related formalities.
Finally, a few clarifications have been forthcoming from the
Union Government in respect of the confusion surrounding the visa
status of foreign nationals. These relate to the issue of
undertaking activities which technically and specifically are in
the nature of employment' but are often undertaken in India by
foreigners visiting the country on a business visa. These
clarifications came in the form of frequently asked questions
(FAQs) released by the Ministry of Home Affairs last week and
appear to provide a fairly comprehensive delineation of the
regulatory position in respect of business visas and employment
visas in India. However, these very clarifications have also raised
few fresh doubts, queries and problems to face. Fresh concerns have
emerged relating to the correct visa categories for visitors such
as independent consultants like lawyers, accountants, medical
professionals etc. who may be deemed to be undertaking employment
type work' whilst on a business visit in India. Further, the
distinction drawn between the legal employer and the sponsor as
mentioned in the FAQs also raise some concerns of compliance in
respect of Indian laws.
The controversy started with several foreign nationals who were
in India on business visas being summoned by their respective FRROs
in August and September and being asked to leave the country by the
end of September. The deadline was subsequently extended till
October 31, 2009. Apparently, these business visa holders were
carrying on project/execution of contracts in India which was in
breach of their business visa conditions. Although it was widely
believed that the sudden enforcement of the authorities was aimed
at the mass scale abuse of the business visa category by some
Chinese nationals who came to India to execute projects/contract
work and included both high and low skilled workers, the
consequence of the stricter enforcement applies to all foreigners
in India on business visas who may have been wholly or partially in
breach of the regulations.
Despite the fact that the latest FAQs released by the Ministry
of Home Affairs are significantly helpful in shedding light on the
relevant issues, greater clarity is needed in what constitutes a
business visa and what activities must be undertaken on an
employment visa. Equally importantly, it remains to be seen, as to
how the respective Indian High Commissions and the Indian
Consulates in different parts of the world that work under the
aegis of the Ministry of External Affairs (a separate government
ministry) put into effect the spirit of the FAQs as these agencies
are responsible for the assessment of the correct visa category and
the issuance of such visas.
Our recommendation pending further clarity is to review each
potential application on a case by case basis, particularly
reviewing the activities to be undertaken by an assignee in India
and where in doubt, liaising with the local consulates to determine
the correct applicable visa category required for the
Please click here for the FAQs released by the Ministry of
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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