Business and employment visa
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 Government of India has also decided that all foreign nationals coming for execution of projects/contracts in India will have to come only on Employment Visa (EV). Such visa will be granted only to skilled and qualified professional appointed at senior level and will not be granted for jobs for which a large number of qualified Indians are available.
The MHA has issued Frequently Asked Questions 1 (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.
In case of IT software/IT enabled service sector:
- The number of EV that may be granted to the skilled/highly skilled foreign nationals will not be subject to any limit.
- The salary of the foreign national should be in excess of USD 25,000 per annum.
In case of other sectors:
The number of EV that may be granted to the highly skilled and professional foreign nationals shall be subject to the limits prescribed by the Ministry of Labour and Employment (MLE) as follows:
- 1 percent of the total workers, subject to a maximum of 20.
- If 1 percent of the total workers are less than 5, then up to 5.
- Specific approval of the MLE would be required in case the number of EV desired exceed the above limits.
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.
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.
- Business visa with multiple entry facility can be granted up to a maximum period of 5 years and in case of US nationals up to 10 years.
- MHA, State Governments, Union Territories, Foreigners Registration Office, etc. can grant extension of business visa on year to year basis up to a total period of 5 years from the date of issue of the initial visa. However, the first extension of business visa will only be granted by MHA.
BV cannot be converted into EV in India
The business visa will not be ordinarily converted into any other visa except in certain specified situations, subject to the approval of MHA.
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.
The Ministry of Labour and Employment has issued revised guidelines for grant of EV to foreign nationals (as per the office memorandum dated 22 December, 2009 posted on the website of the Ministry of Labour and Employment). The key features of the revised guidelines are set out below:
1. The Indian missions abroad may at their level grant the EV up to 1 percent of the total workers working on the project with a minimum of 5 and maximum of 20. For Power and Steel sector the limit is 40, provided:
- The foreign nationals are skilled and qualified professionals, technical experts, senior executives or in managerial position; and
- Those kinds of skills are not available in India.
2. In case where the limit exceeds the above limits, necessary approvals have to be sought from the Ministry of Labour and Employment.
The changes in the tourist visa guidelines have been a mixed bag. On the one hand, the Government has introduced ‘On Arrival’ visa facility for some countries; while on the other hand, a gap of at least two months has been prescribed for foreign nationals returning to visit India on a tourist visa. The key changes on the tourist visa front are set out below:
- Tourist visa on arrival facility has been introduced for citizens of five countries namely Finland, Japan, Luxembourg, New Zealand and Singapore at four international airports in the country i.e. Delhi, Mumbai, Chennai, Kolkata.
- A gap of at least two months has been stipulated for foreign nationals who intend to make a return visit to India.
- Special permission is required from the Indian mission if the foreign national intends to visit India within two months of the last departure.