Changes affect technology companies wanting to seize new opportunities for international suppliers in India’s $40 billion electronics manufacturing and services industries. India must avoid restrictions that could crimp Indian economic growth. No longer permissible to use business visas to enter India for project or contract services work. Foreign expatriate community frustrated with Indian visa unpredictability.
In a marked change in its former immigration policy, the government of India (GOI) increased restrictions for foreign business and tourist travel into India during the past year. In response to increasing challenges in combating terrorist activity and illegal immigration, new guidelines now restrict the scope of allowable business activities for business visa holders, limit tourist entries to India, and recommend stricter enforcement of work visa requirements for foreign nationals entering India for contractual or project work.
While the Indian government has eased norms for nationals of some countries in the form of a ‘visa on arrival’ process, the overall impact of the changes is restrictive.
These changes will affect foreigners who travel to India to seize new opportunities opening up for international suppliers in its booming electronics manufacturing and services industries, which is valued at an estimated $40 billion and expected to grow substantially in the next five years.
As the Indian government has been effectuating the changes via announcements circulated to Indian overseas missions and consular posts rather than through formal rule-making, there have been reports of widespread confusion and inconsistent application of the new requirements.
In response to these concerns, the Indian government has issued a series of ‘FAQ’ postings on its Ministry of Home Affairs (MHA) website, www.mha.nic.in.
The lack of a formal legal change continues to concern global employers and impact travelers who need to enter India to fulfill business or employment duties. This article addresses the most recent changes to the business, employment and tourist visa categories. (OEM Exclusive: Request list of EMS/ODM providers anywhere in India)
India business (B) visa
The government of India’s new policies limit the scope of allowable business activities for business visa holders. According to the guidelines, it is no longer permissible to use a business visa to enter India and engage in work activities such as project or contract services.
‘B’ visa applicants may only engage in non-productive activities permissible under this new limitation such as the observation of project work, provision of high level technical guidance, business meetings, and in-house training.
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Also permissible under the new guidelines are activities to explore opportunities for investment, establish a business, or purchase or sell industrial products.
Indian ‘B’ visas may be issued for multiple entries for a period of five years, and contain a maximum per-stay stipulation of six months.
Scenarios
- Western electronics company representative enters India to ensure a development project is proceeding according to schedule. Representative will not engage in the design or testing of electronic components directly, but will observe work being conducted by the Indian local team and provide guidance from his home office regarding expectations and needs of the client. He will review detailed processes and protocols, request the India team demonstrate testing of various aspects of the project deliverables, and advise regarding coordination with the home office regarding these issues.
- Customer representative will enter for a similar purpose, to ensure the project is being conducted according to client specifications.
Either of these candidates qualifies for a business visa under the new guidelines.
Letters of invitation
To avoid problems upon exit or readmission, the visitor should carry on his or her person letters of invitation from both the home country employer and the India sponsor upon departure, and again for any readmission on the authorized business visa.
The invitation letter from the Indian company sponsor should confirm the precise purpose of the visitor’s planned entry.
In the first scenario, the visa application should specifically note the candidate is entering as an employee and representative of the foreign, home country office, she will be paid and supervised exclusively by the home office, and she is entering purely in an observational capacity.
To avoid confusion and inconsistent application of the laws, it is recommended that specific language from the MHA’s FAQs pertaining to the visitor’s purpose be referenced in the letter.
Further, it is imperative the visitor be well-versed in the permitted activities under this visa category and be prepared to answer any questions related to the purpose of the trip.
It is essential all business visitors comply with all applicable India tax laws. The MHA expressly references this obligation, and it appears likely Indian authorities will collaborate to enforce this provision, therefore, advice and counsel regarding this tax compliance is essential.
India employment (E) visa
The government of India has limited ‘E’ visas to ‘senior level’ skilled and qualified professionals or individuals appointed by the company on a project or contract basis. The Indian government further specifies ‘senior level’ applies to skilled positions such as technical experts, senior executives, or managers.
Visa applications involving administrative or routine jobs for which a large number of Indian nationals qualify or which are low-skilled in nature typically will not be approved.
As those sub-skilled workers will no longer be able to obtain a ‘B’ visa for contract and project work, but may not meet the qualifications for the ‘E’ visa, the Indian government is considering establishing the ‘P’ visa category specifically for the execution of government-sponsored infrastructure projects and projects considered to be of national strategic importance, such as work on military defense bases or building of national nuclear power facilities.
Meanwhile, Indian authorities indicated the following specific categories of workers would be eligible for ‘E’ visas:
- Individuals fulfilling project or contract work;
- Individuals entering to repair plant or machinery as part of warranty or annual maintenance contracts;
- Engineers or technicians who will install and commission equipment or machinery;
- Experts entering India to provide training to the employees of an Indian company;
- Individuals assigned to provide technical support / services or knowledge transfer for which the Indian company pays a fee;
- Foreign consultants;
- Self-employed foreign workers coming to India to provide highly skilled services such as engineering, medical, accounting or legal services.
Additionally, employment visa applications must now be filed in the foreign national’s country of citizenship (or country of last residence) provided the period of permanent residence in that country is over two years.
Indian consular posts are accordingly requesting evidence of birth nationalities or residency.
Evidence of the professional qualifications or skills and experience of candidates are also required, as is proof of employment or contract work to be conducted in India.
An Indian sponsor is also required to support the employment visa application.
An Indian company that awards a contract to a foreign company that does not have a presence in India may act as the sponsor without having to be the legal employer of the visa candidate. In either case, the Indian government will hold the Indian sponsor responsible for the conduct of foreign workers, including for ensuring that they depart India timely.
The type of work the foreign national is engaging in determines the duration of the employment visa.
A foreign technician / expert coming to India pursuant to a bilateral agreement with the government of India and the foreign government (or pursuant to a collaboration agreement approved by the government of India) may be granted a multiple-entry employment visa for the duration of the agreement or for a period of five years.
Highly skilled foreign personnel employed in the information technology sector may be granted a multiple entry visa up to three years or the term of the assignment.
For most other types of employment, the foreign national will be granted a multiple entry visa valid up to two years or the term of the assignment. However, in all cases, the MHA will only grant extensions up to a maximum of five years from the initial date of visa issuance. Subsequent extensions should be lodged with the appropriate Foreigners Registration Office.
Dependents accompanying B and E visa holders must apply for an ‘entry’ (X) visa. Its validity is typically for the same duration as that of the principal visa holder
Tourist (T) visa
Foreign nationals who travel to India on a multiple-entry tourist visa must maintain a gap of at least 60 days between each visit to India. Where the visitor needs to visit India again before fulfilling the 60-day period, permission must be sought from the relevant Indian consulate indicating the specific reasons for another visit within a short period.
The MHA has relaxed this 60-day rule for those who use India as a hub to visit neighboring countries, permitting up to three entries into India if the itinerary shows visits to India and other countries as part of the same trip.
This 60-day mandatory gap between two visits applies to all tourist visa holders including those from countries where visas are issued on arrival, but expressly does not apply to business or employment visaholders.
Tourist visa on arrival (TVOA)
Beginning January 1, 2010, the government of India implemented a new tourist visa on arrival (TVOA). This experimental program, valid until December 31, 2010, allows nationals of Finland; Japan, Luxembourg, New Zealand and Singapore who hold biometric passports to enter India without first obtaining a tourist (T) visa.
TVOA admissions will be granted at the Chennai, Delhi, Kolkata or Mumbai airports. Any TVOA admission may be granted only for a single stay of 30 days, and remains discretionary.
Looking forward
As security concerns continue to affect India increasing restrictions on visa admissions are expected to continue. Multiple reports of travelers not being authorized for readmission to India have been circulated by the media, and the foreign expatriate community has expressed ongoing frustration with the unpredictability of the changes in traditional visa categories.
Reciprocal scrutiny of visa applications by Indian nationals applying to enter other countries is also reported to be on the rise.
In the short term, global employers need to alert their business managers and human resource managers of the changing landscape and align their visa programs to manage the impact of these new restrictions.
In the long term, negotiations to avoid blanket restrictions that pose obstacles to legitimate business activity (and crimp economic growth for India) need to be explored. A vocal business reaction seeking cross-governmental solutions will be essential to achieve that goal.
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