Guidance on issuance of Indian business and employment visas
22nd October 2009
In recent months, the Indian authorities have made significant changes to policies and procedures regarding Indian visa applications, including clarification on the issuance of business visas, application for employment visas by third country nationals and the process for Chinese nationals applying for a visa.
Issuance of business visa
The Indian Ministry of Commerce and Industry, Department of Industrial Policy and Promotion on behalf of the Indian Government has issued a letter clarifying the visa requirements for foreign personnel executing projects/contracts in India.
The new guidelines limit the issuance of business visas to strictly business related activities, including attending meetings and discussion. The guidelines specifically refer to the following as the purpose for business visits:
- Establishing an industrial/business venture
- To explore the possibility of setting up industrial business ventures in India
- To purchase/sell industrial products in India
Foreign nationals who are currently present in India on a business visa on the basis of executing a project/contract are required to leave India by 31 October 2009. The immigration authorities have the ability to impose penalties for non-compliance, although this is not specified in the new guidelines.
Foreign nationals conducting activities which do not fall under the permissible business activities for business visas whilst in India, must obtain an employment visa. The guidelines for the issuance of employment visas on the basis of executing projects/contracts have been tightened.
Applicants must be:
- skilled or qualified professionals; or
- engaged or appointed by an Indian company/organization/industry/undertaking on a contractual or employment basis; or
- in a senior level position / a technical expert / in a managerial position.
The issuance of employment visas are prohibited for positions where there is a large number of qualified Indian nationals available, including but not limited to clerical, routine or secretarial positions.
Applicants applying for employment visas are required to apply at the Indian Diplomatic Post in their country of citizenship. Regardless of the length of prior residence, they are no longer permitted to apply at the Indian Diplomatic Post in a country where they have work or resident status. This change in policy does not apply to applications for business visas.
Chinese nationals applying for employment visas
The guidelines introduce an additional requirement of security clearance for Chinese nationals applying for an employment visa.
In the past, applications requiring security clearance were referred by the Indian Diplomatic Post to the Ministry of Home Affairs (MHA) in India, which caused extended delays in such applications. Before the guidelines were issued, the security clearance procedure was guarded in secrecy and known only to senior internal personnel within the Ministry.
The guidelines have clarified the application process for Chinese nationals submitting employment visa applications, including the security clearance process:
- Application to be submitted at the Indian Diplomatic Post, together with additional information not previously required including educational qualifications of the applicant and their current job and a detailed job description of the position in India
- A copy of the application to be submitted to Ministry of Home Affairs, Foreigners Division (MHA, FD)
- Indian Diplomatic Post to send copy of the application to the (MHA, FD)
- MHA, FD to forward a copy of the application to the Intelligence Bureau, which is required to give their opinion within 15 days
- MHA, FD to forward a copy of the application to the Ministry of Labour , which is required to give their opinion within 45 days
- MHA, FD issues the approval/refusal of the visa to the Indian Diplomatic Post
- Indian Diplomatic Post informs the applicant
Employment visa applications from Chinese nationals will take a minimum of 60 days, possibly longer, to be processed.
In the guidelines, the Indian government also announced that Diplomatic Posts will collate details, including visa holder's name, validity of visa and sponsoring entity, on all business visas issued to Chinese nationals issued from 1 January 2008. This information will be held by the Intelligence Bureau, who will verify the information and if necessary, take action against individuals and sponsoring entities in violation of the immigration rules.
Penalties can include monetary fines, blacklisting of the company and individual, re-entry ban on the individual or imprisonment.
Conclusion
These changes, in addition to the recent changes in procedure for former Indian nationals applying for an Indian visa, indicate that the Indian authorities intend to restrict the entry of semi-skilled foreign nationals by tightening their control on the issuance of visas. The guidelines may have significant implications for foreign nationals who have previously travelled to India for business purposes, as they may now be required to apply for employment visas.
It is anticipated that applications for business and employment visas will be scrutinised more closely by the Indian Diplomatic Posts. It is therefore of paramount importance that employers consider carefully the nature and activities of any potential visit to India to ensure that the correct visa is applied for.
It has been common practice for many employers to seek to avoid the more difficult process of applying for an employment visa, and the subsequent requirement to register with the Foreigners Regional Registration Office on arrival in India, by applying for business visas for short term assignments. Diplomatic Posts have not in the past refused such applications but it appears that this will no longer be permitted and employers should be aware of this in the future. In addition, employers with individuals currently present in India should carry out an immediate review of each individual's visa status to ensure that they are not in breach of the new legislation.