LawQuest | Indian Immigration Alert | e-Visa Services Finally Restored for British Nationals!!

e-Visa Services Finally Restored for British Nationals!!

On December 5, 2022, the High Commission of India in London announced that the e-Visa facility will be restored for the UK nationals travelling to India.  The Indian High Commissioner, Vikram K Doraiswami in his official announcement has confirmed this (see https://www.facebook.com/IndiaInUK/videos).

For the first time since the COVID-19 outbreak, India has resumed the e-Visa facility for the UK nationals for whom the lack of e-Visas and the backlogged visa application appointments have been huge impediments.

The United Kingdom has been reinstated on the list on countries eligible for e-Visas on the India e-Visa portal at: https://indianvisaonline.gov.in/evisa/tvoa.html.

The reinstatement of e-Visas is a significant step forward in eliminating barriers for the UK nationals wishing to visit India for tourism and/or business. This in turn will also help strengthen the Indo-UK relationships and the tourism industry.

 

Students on OPT status do not need new work visa if they do not need new work visa if they do not have to leave the US.

Students on OPT status do not need new work visa if they do not need new work visa if they do not have to leave the US.

The US mission in India has recently announced that a record 82,000 student visas have been issued in 2022 and Indian students have received more US student visas than any other country. Even as the number of Indian students going to campuses in the US goes up, the number on optional practical training visas, too, has seen a sharp rise over the past few years. For Indian students, OPT is an option to work in the US after their studies. According to the Open Doors survey in November 2020, which tracks international student numbers, there were 81,173 Indian students enrolled for the OPT programme.

International students on F-1 visas at US universities are eligible for OPT, temporary employment directly related to the applicant’s major area of study. Students on F-1 visas who finish their courses in the US, do not need a job offer to apply for OPT. The applicant may work for more than one employer or job, but all employment must be related to the degree programme that they have studied. Employment must be for a minimum of 20 hours per week.

While all international students can apply to receive up to 12 months of OPT employment authorisation before completing their studies (pre-completion) and/or after completing their academic studies (post-completion); the STEM (science, technology, engineering, and mathematics) OPT programme permits F-1 students earning bachelors, masters, or doctoral degrees in certain fields to remain in the United States for up to 36 months to work in their field of study. To be eligible for the 24-month OPT STEM extension, the applicant must be employed by, or have a job offer from, an employer who is registered with the E-Verify employment verification system operated by the Department of Homeland Security (DHS) in partnership with the Social Security Administration. Such employment must be paid and full-time.

Even as OPT provides flexibility for Indian students to remain in the US after they finish their study programmes; applicants need to maintain legal F-1 OPT status during the entire period of employment. “Evidence must be acquired from the employer to verify that those on OPT status worked at least 20 hours per week during the period of employment. Once the post course completion OPT period starts, one must not accrue more than 90 days of unemployment within the dates on the EAD (employment authorisation document),” says Mumbai and Florida based immigration lawyer Poorvi Chothani. Post-completion OPT is any portion of OPT used after the student’s programme end date while pre-completion is any portion of OPT used before the student’s programme end date.

Chothani adds that applicants should submit an OPT update and report employment on the office of international students and scholars (OISS) student portal in order to stop the unemployment counting in Student Exchange & Visitor Information System. “Any time spent outside the United States, if not employed by a US employer, is counted towards the 90-day period of unemployment.
Unemployment days are cumulative, so if the OPT holder is employed for less than the length of the OPT time and begins to look for another employer, they do not get an additional 90 days of unemployment,” Chothani says.

Those who have not been unemployed for 90 days of post-completion OPT or 150 days of post-completion and STEM OPT extension periods, are given a 60-day grace period following the completion of the OPT. “This grace period is meant to give time to prepare for departure from the US unless the holder of the OPT visa successfully adjusts their status to a different type of visa or has enrolled in another approved graduate programme,” Chothani said.

In a recent interview to a news agency, US minister counsellor for consular affairs in India, Don Heflin, said that Indian students who are in the US on OPT and were travelling back to India, would need to get
a visa stamped on their passports before returning to the US. This summer, Indian students on F1 OPT visas, who travel to travel to India, have been given the flexibility of dropbox appointments, which means they don’t have to appear for in-person visa interviews to get their passports stamped. However, Indian students in the US, who are approved for OPT and have work authorisation (EAD) and a valid student visa status both with their university and United States Citizenship & Immigration Services (USCIS) do not need to get a new visa if they are not leaving the US.

F-1 OPT holders may change their status to other visa categories. “Frequently, OPT holders change their status to H-1B work visas depending on whether they wish to continue working with their OPT employer who is willing to sponsor them or if they have found a new employer who is willing to sponsor their H-1B. Either way they will need to be selected in the H-1B lottery,” says Chothani.

While OPT is a benefit of F1 status that allows students to work for one year ( possibly longer if the student is eligible for an extension), H-1B is a separate non-immigrant classification specifically for employment. The sponsoring employer must file an H1-B vias petition as ‘Change of status’ within a stipulated time. “Generally, once the H1-B visa petition is approved, the student’s status changes from F-1 (OPT) to H-1B from October 1 of that year. There is no need to procure a visa stamp to begin working on H-1B status. However, if the individual leaves the US, he or she will need a new H-1B visa to return to the US to work on H-1B status,” Chothani says.

Indian Immigration Alert | Foreign Nationals Seeking Indian Employment Visas May Continue to be Paid Outside India

Foreign Nationals Seeking Indian Employment Visas May Continue to be Paid Outside India

This is an update to the alert we published on August 28, 2022, regarding salary payments for foreign nationals employed in India.

We have procured clarifications from the Indian Consular posts in the U.S. and the U.K, regarding changes to the source of salary for foreign nationals seeking new employment visas.  There were certain changes to the requirements published online by the VFS in these two countries, that implied that the salary must be paid in India.  It also appeared that the salary must be paid from an Indian source.

We have now confirmed that the salary may be paid outside India and from a non-Indian source.  However, it is imperative that the salary is equal to or higher than the minimum threshold of INR 16,25,000 (approx. USD 25,000) annually and that all taxes due on that salary are paid to the Indian Income Tax department.  These requirements should be documented in the visa package with appropriate paperwork.  Also, it is prudent to ensure that the salary is commensurate to the foreign national’s position since Indian employment visas may only be granted to highly skilled or qualified workers.

Recent employment visa applications filed at different locations in India have been approved even when the foreign national receives his/her salary outside India.  Hence, the FRROs/FROs also continue to accept that foreign nationals may be paid abroad as long as the foreign national and employer are compliant with the tax requirements in India.  Please note that some FRROs/FROs are very stringent about the level of proof they require to establish tax compliance.

Indian Immigration Alert | Foreign Nationals Seeking Indian Employment Visas Must be Paid in India | Changes Announced at Certain Posts

Foreign Nationals Seeking Indian Employment Visas Must be Paid in India | Changes Announced at Certain Posts

Foreign nationals seeking Indian employment visas must now be paid their salaries in India.  Changes to this effect were introduced in the document requirements by Indian Consular posts or their third-party document support entities (VFS and BLS) in the United States, Germany and Hong Kong (SAR).  Applicants in these jurisdictions are required to submit proof that they will receive their salary in India.  It is not clear that the sponsoring entity must pay the salary, or it would suffice if the salary was received in India.  We have also learned anecdotally that the FRRO in Chennai is asking for such proof for employment visa extensions.

Previously, foreign nationals could be paid either by the home or the sponsoring entity and proof that the foreign national would receive or has received (for extensions) an adequate salary that would be subject to Indian income tax was sufficient irrespective of where they received the salary or which entity paid the salary.  We now expect that the affected consular posts will not only review the minimum salary threshold (of INR 1,625,000 per year) but will also confirm that the salary will be paid by the sponsoring entity in India.

On seeking confirmation from certain Consular posts in the U.S. and the VFS we received no response or responses that neither confirmed nor clarified the position.  The Ministry of Home Affairs in New Delhi, that formulates visa policies, has not made any announcement to this effect as yet.

It appears that these changes were made in the second week of August, but there is no definitive date.  Also, it is important to that that in the meantime, employment visa applications filed during the past two weeks, at Indian consular posts in the U.S., have been approved even though the applicants will remain on the home country payroll.  We are monitoring the situation and will provide further updates as they become available.

 

Pitfalls in Indian Employment and Business Visas and How to Avoid them

In 2009, the Ministry of Home Affairs (MHA) in India provided a fairly comprehensive delineation of the regulatory framework relating to business and employment visas.  Rules and regulations on visa categories and in-country registration are issued and enforced by the MHA. Visa issuance guidelines provide a broad framework but each visa application is decided on a case-by-case basis, resulting different determination of visa applications for individuals with similar profiles.

Various acts passed by the Indian Parliament and rules framed by the Central government from time to time regulate the entry, stay, movement and departure of foreign nationals in India. These include the Foreigners Act, 1946; The Registration of Foreigners Act, 1939 and The Citizenship Act, 1955. The Passport (Entry into India) Act, 1920 specifies the requirements for foreign nationals to enter India, such as travel documents or passports.

Depending upon the activities to be performed in India, foreign nationals must obtain an appropriate visa prior to entering the country. Most foreign nationals on an employment visa to India need to complete post arrival registration formalities at the Foreigners Regional Registration Office (FRRO) or Foreigners Registration Office (FRO) of relevant jurisdiction.

Under the immigration regulations, below are various penalties for non-compliance:

Civil Penalties

If an individual fails to comply with the immigration requirements, that is, fails to register with the FRRO or FRO within the time period as stated on the visa, it is considered a violation. If the visa bears the endorsement that “registration is required within 14 days of arrival in India” and the foreign national fails to register within the stipulated time, the penalty fee for late registration is an equivalent of USD 300 for the first 90 days of such violation. If the violation continues beyond a period of 90 days, then the penalty fee is increased for 90-day periods in multiples of USD 300.

Section 3 of The Passport (Entry Into India) Act states that all individuals entering India must do so on a valid passport. Contravention of any rules made under this section (or order issued under the authority of any rule) is punishable with imprisonment for a maximum term of five years or with a fine up to INR 50,000, or both.

Criminal Penalties

Section 14 of the Registration of Foreigners Act, 1939 states that individuals can be imprisoned for a term which may extend to five years and/or fined if they:

·  Remain in any area in India for a period exceeding their visa.

·  Do any act in violation of the conditions of the valid visa issued for entry and stay in India.

·   Contravene the provisions of the Registration of Foreigners Act or any order made under it or any direction given in pursuance of it.

Police officers and other authorities are vested with the power to arrest any person without a warrant who is in India or seeks to enter India without appropriate documents. That person can run the risk of imprisonment for up to three months and a fine, or both under The Passport (Entry Into India) Act, 1920.

Certain other officials (officer of customs and any police or immigration officer not below the rank of a sub-inspector) may even without a warrant, arrest any person and/or search any place and seize any passport or travel document if there exists a reasonable suspicion that the person has committed an offence punishable under the provisions of The Passport Act.

Often companies use business visas for many activities that fall outside those which are permitted. Since enforcement in India is still weak, most businesses “fly under the radar.” As in the U.S., a company can face problems when there is large-scale misuse of these visas. But it is generally the employee that is subjected to penalties for misuse if they are caught. There also have been cases where foreign national applicants have remained in India for too long a period under the visa or worked under the wrong visa and have been denied entry on a business visa, even where appropriate. For example, we are aware of a client’s employee who was asked to leave the country (not deported) the first time that the officers realised she was on the wrong visa. On a subsequent trip, now on an appropriate visa, she was denied entry and deported for the past violation.

Although uncommon, it is possible for the Government to prohibit the company from sponsoring additional foreign national employees. For example, a very harsh enforcement action concerned a company that collaborated to bring several workers into India on business visas and rotated teams to provide for a continuous work force within the scope of the business visa. The company was raided and audited and was then subject to a ban. As India’s economy continues to grow, attracting more foreign workers, the Government is establishing systems to track and control the flow of foreign nationals. The MHA has been implementing, in phases, a centralized border control and immigration compliance technology, the Immigration, Visa and Foreigners Registration and Tracking (IVFRT) with an objective to develop and implement a secure framework that facilitates and tracks foreign nationals visiting and living in India. With the IVFRT, compliance is now more easily monitored and tracked requiring companies to be more vigilant about visa use and status violations.

The IVFRT monitors:

  • Foreign visitors and workers entering the country do so with appropriate visas and continue to remain in the country in compliance with their visa status; and
  • Tracks foreign nationals who have overstayed in the country illegally.

Foreign nationals must note that all entries and departures are recorded in a central database, which is accessible to multiple government agencies. Foreign nationals should ensure that they comply with all the regulations to avoid higher scrutiny/interrogation, imprisonment, monetary penalties, refusal of entry or deportation.

As long as individuals are working under an appropriate visa and are in compliance with the registration requirements on arrival (if any), there are generally no immigration risks. However, frequent travel on business visas may potentially result in denial of admission, visa cancellation, deportation, penalties, sanctions on the employer, ban on employing foreign nations (for severe violations) and/or imprisonment if the violation warrant it (very rarely).

Ashwina Pinto

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