Travelling to India has always attracted much interest and excitement. Often however, for foreigner visitors, discussions abound on what inoculations need to be arranged prior to travel, what seasonal adventures await a visitor on arrival in India, and how to get the best bargains when out there! What is often not addressed or what is least considered is the visa status of the visitor. Business visitors may have occasionally paused to consider whether travel should be undertaken on a business visa or whether a work permit is required. Many changes are afoot and all visitors must carefully consider the ramifications these changes may have on their travel plans.
Post arrival formalities seem to be equally intriguing for many visitors - a key question that often arises is whether a foreign visitor entering India on a business or employment visa needs to register with local authorities or not?
This article aims to address some of these frequently asked questions, which don't always have a uniform and consistent answer!
BUSINESS AND EMPLOYMENT VISAS
Indian immigration is in a state of flux. The Indian Government has been increasingly faced with the challenge of combating terrorist activity, illegal immigration in India and rampant abuse of certain visa categories like business visas, thereby resulting in the tightening of immigration procedures in India. The changes are not all clearly stated nor have many been formally notified to visitors. Many changes are the net result of notifications issued by the Indian Government to various Indian Consulates abroad, laying down strict criteria that must be met to obtain business and employment visas.
These 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. 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 year and appear to provide a fairly comprehensive delineation of the regulatory position in respect of business visas and employment visas in India.
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 2009 and being asked to leave the country by the end of September 2009. 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. It is widely believed that the sudden enforcement was aimed at the large 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 however applies to all foreigners in India on business visas who may be 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 visit and what activities must be undertaken on an employment visa.
The main rule of thumb is that no employment type activity should be undertaken when visiting India on a business visa. Two main factors are considered by the issuing authorities when considering an application for a business visa, namely duration of stay and nature of activities. A decision is made based on a review of the background circumstances of a particular applicant coupled with a degree of discretion of the administrative official making the determination. A key factor is whether the visitor will be doing productive or employment related work. As business activities have not been clearly defined in any legislation or rules, it is important that advice is taken to ensure that a proposed activity would qualify for a visit on a business visa.
A further complication for visitors applying for employment visas is the need for applicants to apply for Indian visas from their home country. Thus, if an employee is working outside of his country of citizenship, the employee will be required to travel back to his home country to apply for an employment visa to enter India, unless the employee has been permanently resident in that particular country for more than two years. Thus companies will have to consider logistics, time and cost when moving personnel across offices to India.
Another aspect that causes foreign workers in India concern relates to the extension of employment visas. Employment visas issued by overseas Indian consulates are typically granted for a one year period, whereas contracts of employment are generally for 2-3 years. Thus on expiry of the 12 month employment visa, an extension must be applied for. Extension applications must be made in country, namely in India, and the process can be long winded and time consuming.
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 applicant. Persons of Indian Origin who qualify should seriously consider obtaining a PIO (Person of Indian Origin) card or OCI (Overseas Citizen of India) card that allows a PIO/OCI card holder to visit and work in India without the need for any specific visas. Finally, companies should conduct internal reviews to ensure that workers in India are on the correct visa category. Any employees that need to convert from business visas to employment must take all the necessary steps to do so, bearing in mind compliance requirements with local employment, tax and social security legislation.
REGISTRATION FORMALITIES ON ARRIVAL
Another area of ongoing confusion relates to the requirement for foreign visitors to register with their local Foreign Registration Office (FRO) or Foreign Regional Registration Office (FRRO). Current regulations require all foreigners, including those of Indian origin who enter India on a long-term visa, namely on a visa valid for more than 180 days to register with the FRRO/FRO. The registration must be done within 14 days of arrival. Pakistani nationals are required to register within 24 hours and Afghan nationals are required to register within 7 days of their arrival in India. Visitors who enter on business visas that are valid for longer than 180 days and employment visa holders are generally required to register. Other categories of visa holders may also be caught by this requirement. The confusion however that is emerging is due to the fact that certain visitors with a long term business visa are being specifically exempt from registration unless their stay exceeds 180 days on any one visit on a consecutive basis. In other words, in certain cases it is the validity of a business visa for more than 180 days that results in the need for registration; in other cases it is the individual's stay for over 180 days that may trigger the requirement to register.
Given the uncertainty surrounding this area and the wide discretion that can be exercised by Government officials, it is recommended that enquires are made with the local FRRO/FRO on whether registration will be required or not.
Some changes have also been introduced in the form of new conditions for tourist visa holders as well as easing of norms for nationals of some countries in the form of visas on arrival. Recent notifications have stipulated that all foreign nationals who travel to India on a tourist visa with a multiple entry facility either for a period of 90 or 180 days must necessarily have a gap of at least of 2 months between each visit to India. In the event of a visitor needing to visit India again within the said period of two months, specific permission must be sought from the relevant Indian Consulate indicating the specific reasons for another visit to India within the two month period. In all such cases where a tourist re-enters India within two months, registration will be required with the local FRRO within 14 days of arrival.
VISA ON ARRIVAL
But the changes are not all gloom and doom. Recent changes by the Government of India offer a visa-on-arrival facility to citizens of a select group of five countries, something that New Delhi had been extremely hesitant to do so far because of security concerns. The countries nominated are Singapore, Finland, New Zealand, Luxembourg and Japan. Tourists from these countries can also procure their visas from their home countries as usual. The tourist visa-on-arrival has a maximum validity of 30 days with a single entry facility and will initially be granted by the Immigration Officers only at Delhi, Mumbai, Chennai and Kolkata airports. The 'two month gap' rule between two visits applies to tourists availing of the visa-on-arrival facility.
However, the restriction of the two-month gap rule does not apply to PIO (Persons of Indian Origin) or OCI (Overseas Citizen of India) card-holders and foreigners holding business, employment, student and other categories of visas.
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.