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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

India – Preparing for an Employment Visa Extension

The Foreigners Regional Registration Office (FRRO) or Foreigners Registration Office (FRO) which is under the jurisdiction of the Bureau of Immigration (BoI) has been authorized by the Ministry of Home Affairs (MHA) to carry out registration and visa extension formalities for foreign nationals who are in India on long term visas.

An application for an employment visa extension application may be submitted within a window of fifteen (15) to sixty (60) days prior to the expiry of the visa.  It is possible to get an extension of the employment visa in India for an additional 12-month period enabling the individual to remain in India for up to a cumulative five years from the date of issue of the initial visa. The visa extension procedure and processing time differ in every jurisdiction within India.

In an attempt to ease visa related formalities for foreign nationals in India, the BoIlaunched ‘e-Services’ in February 2018. Through this effort, in-country registration and visa extension formalities have now been made an online procedure thus eliminating the need for foreign nationals to visit the FRRO/FRO in person. Foreign nationals may be required to visit the FRRO/FRO for an interview only if asked to do so. All messages regarding the status of the application are sent to the foreign national directly via email or through a text message on their registered Indian cell phone number. Once the application has been approved, the Registration Certificate or Stay Visa (evidencing extension of the visa) is emailed to the foreign national.The status is also be uploaded on the FRRO’s e-services portal.

It is important to note that the foreign national must remain in India from the time the application is submitted until the time the service has been granted. Departure from India while the extension application is under process results in the lapse of the extension application. If the individual wishes to leave the country while the extension application is under process and the current visa has expired, an Exit Permit/Visa must be procured from the FRRO/FROand the foreign national will need a new visa to return to India.

Sandhya Maggidi

Getting an Internship in India

In an attempt to keep up with the ever-growing business needs and trends, the Government of India through the Ministry of Home Affairs has further liberalised and digitized its immigration policies and systems. One such liberalisation effect is evidenced in the changes surrounding visas granted to foreign nationals who wish to intern in India.

Foreign nationals intending to pursue an internship with a non-governmental organisation (NGO), company or educational institution in India are now granted a Student Visa (S-6 visa). India previously had a separate category of visas to allow foreign nationals wo intern in India – An Intern Visa, that has now been done away with.

The foreign intern must draw a minimum salary of US$12,000 a year during the internship. There are no minimum salary requirements for internships with Indian educational institutions or NGOs.

Graduates or post-graduates are eligible to intern in India under an S-6 visa. It is important to note that the internship start date in India must be within a period of one yearfromthe completion of graduation or post-graduation.

This visa will not be issued for internships in sectors such asdefence, telecom, space technologies, construction or strategic infrastructure projects, mining, civil aviation, petroleum and natural gas exploration, private security agencies, human rights, nuclear energy, environmental organisations and dam construction/management.

The visa will be granted to a maximum of fifty (50)applicants a year for each Indian mission or post. This limit will be one hundred (100) a year for countries where the population of people of Indian origin is more than one million.This visa is issue for a period of one year and cannot be extended.

Ashwina Pinto