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:
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.
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).