The Ministry of Commerce and Industry (MCI) had issued a letter dated 20 August 2009 requiring all foreign nationals in India holding Business Visa (BV) and working on project/ contract based assignments in India to return to their home countries on expiry of their BV or by 30 September 2009, whichever is earlier. This deadline was subsequently extended to 31 October 2009 by the Ministry of Home Affairs (MHA).
The MHA has now issued Frequently Asked Questions1 (FAQs) on work related visas issued by India, clarifying the purpose, duration and various scenarios under which BV/ Employment Visa (EV) may be granted to foreign nationals.
Key clarifications as per the FAQs issued by MHA
Employment Visa:
EV shall be granted to a foreign national who is a skilled and qualified professional or person who is being appointed at a senior level or as a technical expert. EV shall not be granted for jobs which are routine/ ordinary/ secretarial in nature or for which large number of qualified Indians are available. The FAQs provide the following illustrative scenarios under which EV shall be granted to foreign nationals:
- For execution of a project/ contract (irrespective of the duration of the visit).
- Visiting customer location to repair any plant or machinery as part of warranty or annual maintenance contract.
- Foreign engineers/ technicians coming for installation and commissioning of equipments/ machines/ tools in terms of contract for supply of such equipment etc.
- Foreign experts imparting training to the personnel of the Indian company.
- For providing technical support/ services, transfer of know-how etc. for which the Indian company pays fees/ royalty to the foreign company deputing the foreign national.
- Foreign nationals coming to India as consultants on contract for whom the Indian company pays a fixed remuneration (whether monthly or otherwise).
- Foreign artists engaged to conduct regular performances for the duration of employment contract given by Hotels, clubs etc.
- For taking up employment as coaches.
- Foreign sportsmen who are given contract for a specified period by the Indian club/ organization.
- Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or such other highly skilled services in their capacity as independent consultants.
Business Visa:
The FAQs provide the following illustrative scenarios under which BV shall be granted to foreign nationals:
- To establish industrial/ business venture or to explore possibilities to set up industrial/ business venture in India.
- To purchase/ sell industrial/ commercial products or consumer durables.
- For attending technical meetings, board meetings, general meetings for providing business services support.
- Foreign nationals who are partners in the business or functioning as Directors in the company.
- For consultations regarding exhibitions, participation in exhibitions, trade fairs etc. and for recruitment of manpower.
- Foreign buyers who come to transact business with suppliers/ potential suppliers, to evaluate/ monitor quality, give specifications, place orders etc. relating to goods/ services procured from India.
- Foreign experts/ specialists on a visit of a short duration in connection with an ongoing project for monitoring the progress of the work, conducting meetings with Indian customer and/ or to provide high level technical guidance.
- For pre-sales or post-sales activity not amounting to actual execution of any contract/ project.
- Foreign trainees of multinational companies coming for in-house training in regional hubs of the concerned company located in India.
- Foreign students sponsored by AIESEC for internship on project based work in India.
BV cannot be converted into EV in India:-Foreign nationals who are already in India on BV are not allowed to convert their BV into EV in India. Therefore, they have to necessarily leave India by 31 October 2009 and get EV overseas.
Foreign company not having presence in India cannot sponsor EV:- Where a foreign entity does not have any project office/ subsidiary/ joint venture/ branch office in India, it cannot sponsor a foreign national for EV.
EV not necessarily to result in legal employment: – An Indian company/ organization which has awarded a contract for execution of a project to a foreign company can sponsor employee of a foreign company for EV. Further, such Indian organization/ entity would not necessarily be considered the legal employer of that person.
Our Comments:-The FAQs provide clarifications on few issues faced by companies subsequent to the letter issued by MCI. However, the term “executing projects/ contracts” has still not been defined, leaving the issue open for further examination. Companies will need to take a re-look at the overall assignment/ deputation programs for foreign nationals to India and may need to restructure their international assignment policies vis-à-vis their projects in India.
Q1. What is a Business Visa?
Ans. Business Visa is granted to a foreign national who wants to visit India to establish an industrial/business venture or to explore possibilities to set up industrial/business venture, or wants to purchase/sell industrial products in India. This Visa is granted subject to following conditions:-
(i) The applicant is a person of assured financial standing and expertise in the field of the intended business.
(ii) The applicant is not visiting India for the business of money lending or petty trading, or for a full time employment in India involving payment of salary in India etc.
(iii) The facility of Business Visa will also be extended to senior executives of firms, experts, tour conductors and travel agents, etc., visiting India in connection with work related to projects of national importance, including those undertaken by public sector undertakings, and conducting business tours of foreigners or business relating to it, etc.
(iv) A foreign national will have to comply with all other requirements like payment of tax liabilities etc.
(v) The grant of Business Visa is subject to any instructions issued by the Government of India on the basis of reciprocity with other foreign countries from time to time.
(v) The Business Visa must be issued from the country of origin, or from the country of domicile of the foreigner provided the period of permanent residence of that applicant in that particular country is for more than 2 years.
Q.2. Who are eligible for a Business Visa?
Ans.
(i) Foreign nationals who want to visit India to establish industrial/business venture or to explore possibilities to set up industrial/business venture in India.
(ii) Foreign nationals coming to India to purchase/sell industrial products or commercial products or consumer durables.
(iii) Foreign nationals coming to India for technical meetings/discussions, attending Board meetings, general meetings for providing business services support.
(iv) Foreign nationals coming to India for recruitment of manpower.
(v) Foreign nationals who are partners in the Business and/or functioning as Directors in the company.
(vi) Foreign nationals coming to India for consultations regarding exhibitions, for participation in exhibitions, trade fairs, business fairs, etc.
(vii) Foreign buyers who come to transact business with suppliers/ potential suppliers at locations in India, to evaluate or monitor quality, give specifications, place orders, negotiate further supplies etc., relating to goods or services procured from India.
(viii) Foreign experts/specialists on a visit of short duration in connection with an ongoing project with the objective of monitoring the progress of the work, conducting meetings with Indian customers and/or to provide some high level technical guidance.
(ix) Foreign nationals coming to India for pre-sales or post-sales activity not amounting to actual execution of any contract or project.
(x) Foreign Trainees of multinational companies/corporate houses oming for in-house training in the regional hubs of the concerned company located in India.
(xi) Foreign students sponsored by AIESEC for internship on project based work in companies/industries
Q.3. What is the duration of a Business Visa?
Ans. A Business Visa with multiple entry facilities is granted for a period upto 5 years or for a shorter duration as per the requirement. A stay stipulation may be prescribed for each visit by the concerned Indian Mission.
Q.4. What documents are required to be submitted alongwith application for a Business Visa?
Ans. (i) The foreign national must have a valid travel document and a re-entry permit, if required under the law of the country concerned.
(ii) Proof of financial standing and expertise in the field of intended business.
Q.5. What is an Employment Visa?
Ans. Employment Visa is granted to foreigners desiring to come to India for purpose of employment, subject to following conditions:-
(i) The applicant is a skilled and qualified professional or person who is being engaged or appointed by a company, organization, industry, or undertaking, etc. in India on contract or employment basis at a senior level, skilled position such as technical expert, senior executive, or in a managerial position, etc.
(ii) Employment Visa is not granted for jobs for which large numbers of qualified Indians are available.
(iii) Employment Visa is not granted for routine, ordinary or secretarial/clerical jobs.
(iv) The Employment Visa must be issued from the country of origin, or from the country of domicile of the foreigner provided the period of permanent residence of that applicant in that particular country is for more than 2 years.
(v) The Indian company/organization engaging foreign nationals for executing projects/contracts would be responsible for the conduct of the foreign national during their stay in India and also for the departure of such foreign national upon expiry of Visa.
(vi) A foreign national will have to comply with all other requirements like payment of tax liabilities, etc.
Q. 6. Who are eligible for Employment Visa?
Ans. Subject to the conditions enumerated in Question B5 above, the following will be eligible for Employment Visa:-
(i) Foreign nationals coming to India for execution of a project/contract [irrespective of the duration of the visit].
(ii) Foreign nationals who are coming to India on short visits to customer location to repair any plant or machinery as part of warranty or annual maintenance contracts.
(iii) Foreign engineers/technicians coming to India for installation and commissioning of equipments/machines/tools in terms of the contract for supply of such equipment/machine/tools.
(iv) Foreign experts coming to India for imparting training for the personnel of the Indian company.
(v) Foreign personnel deputed for providing technical support/services, transfer of know-how, services supplies for which the Indian company pays fees/royalty to the foreign company.
(vi) Foreign nationals coming to India as consultant on contract for whom the Indian company pays a fixed remuneration, (may not be in the form of monthly salary).
(vii) Foreign artists engaged to conduct regular performances for the duration of the employment contract given by Hotels, Clubs, other organizations.
(viii) Foreign nationals who are coming to India to take up employment as coaches.
(ix) Foreign sportsmen who are given contract for a specified period by the Indian Clubs/organizations.
(x) Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or such other highly skilled services in their capacity as independent consultants.
Q.7. What is the duration of an Employment Visa?
A foreign national coming to India for employment may initially be granted an Employment Visa by the Indian Missions abroad upto one year. The first extension, if necessary, would be granted by MHA. Further extensions, if required, can be granted by concerned State Government/FRO upto maximum period of five years from the date of issue of the Visa. Foreigners coming on Employment Visa are required to register with concerned FRRO/FRO within two weeks from the date of arrival.
Q.8. What documents are required to be submitted alongwith application for Employment Visa?
Ans. (i) The foreign national must have a valid travel document and a re-entry permit, if required under the law of the country concerned.
(ii) The foreign national must submit proof of his/her employment or contract or engagement by the company/organization, etc. in India.
(iii) The foreign national must submit documentary proof of his educational qualifications and professional expertise.
Q.9 Can foreign nationals coming to execute projects in India be granted Business Visas?
Ans. No. A foreign national coming for executing projects/contracts will have to come only on an Employment Visa.
Q10 Can foreign nationals already in India for executing projects on Business Visas be allowed to extend their Business Visas beyond 31.10.2009?
Ans. No. A foreign national who is already in the country on Business Visa and engaged in executing project/contract should leave the country by 31.10.2009.
Q11 Can foreign nationals already in India for executing projects on Business Visas be allowed to convert their Business Visas to Employment Visas without leaving the country?
Ans. No.
Q12 Which category of Visa will be granted to family members of foreign nationals coming to India on Business Visas?
Ans. Indian Missions may grant an ‘X’ Visa [i.e. a Dependent Visa] to the family members of a foreign national granted a Business Visa at their discretion, subject to usual security checks provided the family members are otherwise eligible for grant of such a Visa.
Q13 Which category of Visa will be granted to family members of foreign nationals coming to India on Employment?
Ans. In respect of family members of a foreign national who is granted ‘E’ Visa, Indian Missions may grant an ‘X’ Visa [i.e. Dependent Visa]. The validity of the ‘X’ Visa could be co-terminus with the validity of the Visa of the principal Visa holder or for such shorter duration as may be considered necessary by the Indian Mission, subject to usual security checks provided the family members are otherwise eligible for grant of such a Visa.
Q15 Whether a foreign company/organization that does not have any Project Office/subsidiary/joint venture/branch office in India can sponsor a foreign national/employee of a foreign company for Employment Visa?
Ans. No.
Q16 Whether an Indian company/organization which has awarded a contract for execution of a project to a foreign company that does not have any base in India, can sponsor employee of foreign company for Employment Visa?
Ans. Yes.
Q17 If the Indian organization/entity sponsors an Employment Visa, does this mean that the Indian organization/entity has to necessarily be the legal employer of the person?
Ans. No.
Q.18 Which category of Visa will be granted to the foreign language teachers/interpreters?
Ans. Employment Visa.
Q19 Which category of Visa will be granted to the foreign specialist Chefs?
Ans. Employment Visa.
Q.20 Which type of Visa would be granted to senior management personnel and/or specialists employed by foreign firms who are relocated to India to work on specific project/management assignment?
Ans. Employment Visa.
Q.21 What is the format for applying for Business Visa or Employment Visa?
Ans: The application forms for Business Visa and Employment Visa are available on the website and/or offices of the Indian Missions in respective countries.
