Indian Immigration Requirements for Foreign Employees

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Con

tent

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Background

Kinds of Visas in India

Family Members

Penalties

Persons of Indian Origin

Overseas Citizen of India

Foreigner’s Registration Procedure

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Business continues to integrate into new international markets and requires a mobile workforce to accommodate that integration

Employees are sent on international assignments to India for periods ranging from 6 months to 3 years

Employees are required to obtain the correct visa before entering the host country

Employees have to comply with various immigration formalities on arrival into the host country

Employer faced with the task of monitoring the visa and immigration requirements and arranging for the same

Immigration and work permit regulations differ from country to country and can cause significant delays if not handled appropriately

Background

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Kinds of Visas for travel to India A visa is required for all foreign nationals entering India. The following are the

various kinds of visas available*:

Business Visa (‘BV’) Employment Visa (‘EV’) Tourist Visa (‘TV’) Student Visa (‘ST’) Entry Visa (‘XV’) Long term Visa (‘LT’) Yoga Visa (‘XV’) Research Visa (‘RV’) Transit Visa (‘TLP’) Missionary Visa (‘XV’) Journalist Visa (‘J’) Conference Visa (‘XV’) Medical Visa (‘MV’) Approved / Project Visa (‘PV’)

*We have mentioned few kinds of visas available for entering India. We have not discussed all kinds of visas.

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Visas on Arrival

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Tourist Visa on Arrival in India Visa on arrival facility is available to nationals of 180 countries. These visas can be issued for a time period of 30 days

and are single entry, non-extendable, non-convertible with permission of only 2 visits on this facility during a year. The visa-on-arrival and electronic travel authorization to citizens of 180 countries will be implemented initially at nine airports

Eligibility

Tourism No residence / no occupation in India Passport with 6-months validity Financial standing Is not undesirable/ blacklisted

Time Period

Upto 30 days single entry

Not Applicable For

Pakistan, Sudan, Afghanistan, Iran, Iraq, Nigeria, Sri Lanka, Somalia

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Business Visa

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Business Visa Business visas are issued to foreign nationals intending to visit India for business purposes

Business purpose includes training, meetings, client visits etc. and should not constitute activities which constitute employment in India

The individual should continue to receive payments abroad

Business visas are valid for six months or one or more years with multiple entries

The period of stay in India (for each visit) under this category is limited to six months only

There is no limit to the number of entries an individual can make

A business visitor is required to register with the Foreigner’s Registration Office (‘FRO’) if he enters India with a long-term visa which is valid for more than 180 days, and intends to stay in India for more than 180 days continuously during a particular visit

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Business Visa – Basic Conditions To qualify as a business visitor, the individual must be able to show at port of entry that:

He is seeking entry as a visitor for no more than six months approximately

He intends to leave India on completion of his visit

He has sufficient funds to maintain and accommodate himself without working or without recourse to public funds

He normally lives and works abroad and that he has no intention of transferring his base to India

He does not intend to take employment, produce goods or provide services in India

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Business Visa – Documents Required & Time Taken

The following documents are required to obtain a business visa:

Application form; Valid Passport; Two recent passport size photographs; Proof of legal residence in the country where the application is being submitted;

Employer's support letter stating the purpose and length of trip, and the financial responsibility while in India; Business visas can be obtained in 2-14 working days, depending upon the processing time taken by Indian Consulate in various countries

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Business Visa – Extension of stay

A business visitor should ideally go back to his / her home country and enter India again with a fresh visa

There is a process for extension available which is not recommended since the process is lengthy and cumbersome

Supporting business documents, business agreement, business sponsor/ collaborator request

If required proof of Business / Contractors tax deduction support

FRO can extend the visa for three months and forward the case for further extension upto 1 year, to Ministry of Home Affairs (‘MHA’) 

Subsequent extension can be obtained from MHA only

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Definition of a Business Visitor

Establish industrial / business ventures Purchase/ sell industrial products Technical meetings/ Board meetings/

General meetings Recruitment of manpower Foreigners who are partners/directors in

Indian business Visits regarding consultations –

exhibitions, trade fairs, business fairs Business with suppliers/ evaluate quality

control Technical guidance, Pre-sales, Post-

sales activity

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Employment Visa

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Employment Visa

A foreign national coming to India for taking up an employment or for rendering services in India in the course of employment must obtain an employment visa. For eg: If XYZ AG sends its employees on assignment to India, the employees are required to obtain employment visa

An employment visa must be obtained from the Indian Consulate in the country of residence of the applicant, prior to departure for India

Duration of visa would depend on the period of the contract

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Employment Visa

Foreign nationals intending to reside in India for more than 180 days must register with the local FRO within 14 days of entering India

There is no concept of Work Permit in India. Individuals intending to work in India must obtain employment visa

The individual can remain on the home country payroll subject to the regulations as per the Foreign Exchange Management Act*

* Please refer to slide 19

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Employment Visa - Documents Required & Time The following documents are required to obtain an

employment visa: Complete application form & photographs

Valid passport Updated CV & Internal/ External Training

Certificates Offer, Contract letter / Assignment letter Invitation letter from the Indian employer Applicant's resume Two Passport size photographs Proof of address Proof that the organization is registered in India

i.e. AOA, MOA, COI, RBI, ROC, FIBP, SIA

Employment visas can be obtained in 15-25 working days, depending upon the processing time taken by Indian Consulate in various countries

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Employment Visa – Extension Process Temporary visa extensions are available. However the

process is lengthy and cumbersome

It is recommended that the employee should initiate the process –month in advance

In order to extend the visa, the foreign national would have to apply to the local FRO/ FRRO

The FRO/ FRRO will forward the visa extension documents to the local State Home Department

The State Home Department in turn will forward the application to the Ministry of Home Affairs (‘MHA’) for approval

Procedure involves Security check, Intelligence/ Police verification, Tax compliance, corporate/ employer status

MHA grants the approval and dispatches the same to FRO/ FRRO

FRO/ FRRO endorses the approval in the Residence Permit and Passport of the individual

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Employment Visa – Documents for Extension

The following documents are required to be produced for visa extension:

Copy of employment contract & extended employment contract

Form 16 (withholding tax certificate) Income tax return (ITR) filed with the Indian

Revenue Authorities Details of tax deducted at source for the

ongoing financial year on the company letterhead

A copy of challans under which the tax deducted was deposited

Bonafide certificate for children from the school in which they are enrolled

Registered/ Notarized copy of the employee’s house lease agreement

Copies of the Residential Permit and Registration Certificate

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Visa - Conversion

Employment visas can be converted to dependent category

Business visa can be converted into employment visa by the MHA in exceptional cases only. However the process is lengthy and cumbersome

A foreign national employee is NOT allowed to convert his or her immigration status from a visitor status to employment status while remaining in India

Change of original company by a foreign national who has come to India on an employment visa is not allowed in the same visa. The foreign national is generally required to go back to his own country and come to India again on a fresh visa

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Project Visas

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Project Visas

For foreign nationals executing specified / listed / approved projects

Organization to submit details of the project that they are executing in India

Details reviewed by the Indian mission

Project visa clearance referred to concerned Ministry

Only projects of National/ Strategic/ Economic Importance

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Restrictions on Visas

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Restrictions / Employment visa Pre-requisites

Issued to skilled & qualified professionals, technical experts, senior executives, work skills not available in India

Relaxations for companies engaged in Power & Steel sector for exceeding the limit

Additional / limit enhancement through the Ministry of Labour & Employment

Missions to submit details of E-visas granted to New Delhi

Indian Govt. to track total number of foreigners on various projects

Mandates foreigners employed to contribute to social security in India

One factor is due to presence of large number of Chinese workers

45-90 days of processing time post referral to MLE

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FEMA Regulations

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FEMA Regulations - Residency Residency under FEMA depends on the following two tests:

Physical Presence Test:

An individual residing in India for more than 182 days during the course of the preceding financial year (1 April to 31 March) will be regarded as ‘resident in India’ (‘PRII’) provided he satisfies “the purpose of stay” test discussed below.

Purpose of Stay Test:

An individual will not qualify as a ‘resident in India’, if he has come to India otherwise than-

for or on taking up employment in India; or for carrying on in India a business or vocation in India;

or for any other purpose, in such circumstances as would

indicate his intention to stay in India for an uncertain period.

Where the conditions mentioned above are not satisfied, the individual will be a Person Resident Outside India (‘PROI’).

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FEMA Regulations – Salary Income

Foreign employees (whether foreign/ Indian nationals) rendering services in India to the office/ branch/ subsidiary/ joint venture of a foreign company can receive and retain salary outside India subject to following limits/conditions:

Salary is received from foreign company Amount credited to foreign currency account not

to exceed 75% of such salary Balance 25% of salary to be paid in Indian

rupees Indian income taxes paid on the entire salary

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Foreigner’s Registration Procedure

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Registration Requirements

All foreign nationals (except Overseas Citizens of India) are required to register with the FRRO authorities at the local registration office within 14 days of their date of arrival if their visas are valid for longer than six months

Application for registration should be filed in with

the FRRO in the city where the foreign national intends to reside

Dependents arriving on an Entry visa would also have to register with the FRRO

Any change in the information given for obtaining the residential permit should be intimated to the FRRO

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Registration Requirements

A foreign national is not required to register himself/ herself on each visit as long as he/she is visiting on the same visa on which he/she is registered earlier

The registered foreign national needs to report to FRRO, if he/ she re-enters India on a fresh visa

Further, if the registered foreign national obtains a new passport during the validity of his/ her registration and visa, then the foreign national is required to get the visa transferred on to his new passport from FRRO

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Registration Requirements – Documents & Time To register with the local registration office,

the following documents must be presented: 4 recent passport size photographs; Photocopy of photo page and valid Indian Visa

page of the passport; Proof of residential address in India; Documents of identification Company registration/ incorporation and; In case of Employment Visa, request letter,

undertaking, contract agreement from employer. In case of Business Visa, business related papers

on the authenticity of the business, copy of permission from Reserve Bank of India and approval of Government of India in case of joint venture/collaboration;

The FRO registration process takes 1-working days after the application has been filed with all the required documents

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Registration Compliances To register with the FRRO / FRO / Local Superintendent of Police

the following steps list the standard pre-requisite*:

Application Form Photocopy of passport i.e. (control page & Indian visa page) Eight photographs of the applicant Details of Residence in India Marriage certificate Bonafide certificate i.e. University/College/ Institution in case of Student visa Accreditation certificate / P.I.B. Card i.e. in case of Journalist visa D.C.A. Approval i.e. case of Board level appointees in Public Limited companies G.O.I. approval i.e. case of Joint venture/collaborations R.B.I. /C.O.I. approval Employment contract / terms & conditions/contract/business agreement Sponsorship/ Guarantee/Undertaking from the Indian entity

*We have mentioned a standard list of required supporting documents only.

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Family Members

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Family Members – Visa requirements

Family includes spouse, children and dependent parents

The accompanying family members can apply for entry visas together with the employee's application for an employment visa

The accompanying family members can also obtain entry visa subsequent to the issue of employment visa to the employee

After arriving in India, the family members should obtain residence permits

Children upto the age of 16 years need not register separately with the FRO

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Family Members – Visa requirements

Children can obtain admission into schools without any additional documentation

Accompanying family members are granted "X" Residence Visas and permit

Unmarried partners are not granted dependant "X" visas and may only be granted a "T" (Tourist) visa

Spouses, dependents and unmarried partners are not granted immediate work authorization as a derivative status of the employee, as they must obtain their own work authorization

Spouses are allowed to pursue studies in India once they obtain residential permit in India

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Family Members – Student Visa requirements

Student Visas are issued for the duration of the academic course of study or for a period of five years whichever is less, on the basis of letters of admission from Universities/recognized colleges or educational institutions in India

The visa can be applied and obtained from any of the Indian Embassies/ High Commission

Foreign students holding Student Visa of more than 180 days are required to register himself/ herself with the local FRO within 14 days of arrival

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Penalties

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Penalties for Overstay An overstay fee of US$ 40 (equivalent amount Rs.1395/-) is

charged

A condemnation letter is required to be filed with the Commissioner of Police stating the reasons for overstay

Visa extension fee of US$ 66 (equivalent amount Rs. 2650/-) is also charged

The individual can also be punished with imprisonment, under Section 5 of the Registration of Foreigners Act, 1939 (XVI of 1939)

Non compliance on obtaining the required visa can lead to imprisonment and deportation

Intentionally employing foreigners without their obtaining requisite authorization/ visas to work in India can make the employer an accessory to the default and the company too may be blacklisted, banned from hiring foreigners, prosecuted for willful neglect of Immigration rules in India

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Restricted Areas

Restricted Areas The following areas which were restricted till recently have now

been entirely opened. Foreigners can visit these areas without any restricted area permit: Darjeeling (West Bengal), Entire Assam, Meghalaya and Tripura

Foreigners still require restricted area permit to visit the following areas:

Arunachal Pradesh, Andaman Nicobar Islands, Lakshadweep, Nagaland, Manipur, Mizoram, Sikkim and certain areas of Himachal Pradesh and Jammu and Kashmir.

Restricted area permit can be obtained from the Ministry of Home Affairs, New Delhi, Indian missions abroad, Foreigners Regional Registration Offices (FRRO) in India, Residence Commissioners of respective state governments based in Delhi and Home Commissioners of each state capitals

Application for restricted area permit has to be made at least 6 weeks in advance.

For Andaman & Nicobar Islands, entry permit can also be obtained from the Chief Immigration Officers at Madras, Calcutta and Port Blair. Restricted area permit for Sikkim, Andaman & Nicobar Islands can also be obtained on the spot

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Restricted Areas List

Assam Kaziranga National Park,Manas Bird Sanctuary,Guwahati City and Kamakhya Temple, Sibsagar, Jatinga Bird Sanctuary, Itanagar,Ziro, Along, Pasighat, Miao, and Namdapha, Havelock Island,Long,NeilIsland, Mayabunder,Diglipur and Rangat, Jolly Buoy, South Cinque,Red Skin, Mount Harriet, Madhuban, Poo-Khab-Sumdho-Dhankar-Tabo, Gompa-Kaza, Orang-Dabling., Meghalaya Shillong, Barapani, Cherrapunji, Mawsynram, Jakern, Ranikor, Thadlaskein, Nartiang, Tura, Siju.

For the above individual tourist not permitted, 10 day limit is allowed by MHA and all FRROs

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Persons of Indian Origin

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Persons of Indian Origin A person who at any time held an Indian

Passport or he or either of his parents or grandparents were born in or were permanently resident in India as defined in the Government of India Act (except citizens of Afghanistan, Bangladesh, Bhutan, Nepal, Pakistan or Sri Lanka) is a Person of Indian Origin (‘PIO’)

Spouse of a PIO can be considered for a PIO

A Person of Indian Origin can obtain a PIO Card of India

The application for a PIO Card should be made in the prescribed form along with the required enclosures.

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Persons of Indian Origin (contd.)

He/ She or either of his or her grandparents or great grandparents were born in and permanently resident in India as defined in the Government of India Act 1935 and other territories that became a part of India thereafter provided neither was at any time a citizen of any country as may be specified by the Central Government from time to time

Spouse of a PIO can also be considered for a PIO

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Persons of Indian Origin

PIO Card holders are not required to obtain separate visa to enter India for 15 years from the date of issue of the PIO Card

PIO Card holders are required to register themselves with the concerned FRO authorities within 30 days, if their continuous stay exceeds 180 days in India

Registration with FRO is only required for the first time when the stay exceeds 180 days in India

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Overseas Citizen of Indian

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Overseas Citizen of Indian

A person registered as an Overseas Citizen of Indian (‘OCI’) under section 7A of the Indian Citizenship Act 1955 is an Overseas Citizen of India

The following persons are considered as OCI: A citizen of another country but who was a citizen

of India at the time of, or at any time after, the commencement of the Constitution; or

A citizen of another country but who was eligible to become a citizen of India at the time of commencement of the Constitution

A citizen of another country but belonged to a territory that became part of India after the 15th of August 1947

A child (including minor child) or grand child of such citizens

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Overseas Citizen of Indian No person who is or had been a citizen of Pakistan or

Bangladesh or such other country that the Central Government may by notification in the official Gazette specify, shall be eligible for registration as an OCI

An overseas citizen of India can obtain an OCI Card of

India

Persons of Indian Origin (‘PIO’) of all countries except Bangladesh and Pakistan can apply for the OCI Card provided the country of nationality allows dual citizenship under the local laws

Multiple entry life long visas to visit India is granted to OCI Card holders

OCI Card holders are not required to register with the concerned FRO authorities

The application for OCI Card has to be made in Form XIX

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Laws/ Government Acts

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Overseas Citizen of Indian

Foreigners Recruiting Act 1874 Registration Act 1939 Foreigners Act 1946 Immigration Expulsion Act 1950 Special Marriages Act 1954 Citizenship Act 1955 Income Tax Act 1961 Customs Act 1962 Labor Act 1970 Carrier Liability Act 2000

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