Immigration – Indian Business and Employment Law Updates

In a world that is characterized by globalization and a constant mobility of people across borders, countries are re-defining policies and enhancing compliance initiatives.

India has over the past few years seen a healthy surge in foreign nationals coming to India on employment visas. The Government of India through the Ministry of Home Affairs deals with all matters relating to visa, immigration, citizenship, overseas citizenship of India, acceptance of foreign contribution as well as hospitality. This article elucidates certain important, recent changes pertaining to foreign nationals in India as well as Indian origin foreign nationals.

Mandatory Reporting of Foreign National’s Stay

The Ministry of Home Affairs (MHA) has vide notification dated March 18, 2016[1] made it mandatory to report the stay of foreign nationals on the premises by a landlord.  This has been a requirement for several years but has not been enforced strictly prior to this.

Foreign nationals in India are under heightened scrutiny regarding their entry and stay in the country. Thus, the MHA has emphasized the mandatory requirement for hotel, guest houses, hostels, and private homes among others, to report the arrival and stay of any foreign national, within 24 hours of arrival at their premises. Rented accommodation falls within the ambit of ‘hotel’ specified under this notification. An online application in this regard has been made applicable. This reporting requirement is separate from the police verification that needs to be completed prior to registering at an FRRO/FRO or applying for a visa extension at an FRRO/ FRO.

Landlords also must register online and then generate Form C for each of its foreign national tenants.  To limit the liability of the landlord it is imperative that they also report the departure of any foreign national from their premises and the foreign national is required to sign the Annexure to the Order Form.

It is imperative for foreign nationals to register with the FRRO/FRO concerned having jurisdiction over the place where he or she intends to stay within 14 days of arrival when they are visiting India long term (more than 180 days) on a Student Visa, Employment Visa, Research Visa or Medical Visa.  Pakistani nationals however must register with the concerned FRRO/FRO within 24 hours of their arrival.  Usually, the entity that sponsors the visa is required to submit an undertaking to the FRRO/FRO on behalf of the foreign national “to ensure good conduct of the foreign national during his/her stay in India.” No registration for minors below the age of 16 is required.

Reporting the Repatriation of Foreign National Employees

During the course of employment, in case the employer wants to withdraw the “undertaking for good conduct” the employer is required to visit the office in person along with the foreign national to report and record the withdrawal.  This is likely to happen when the employee has been found to violate some law or when the employee wishes to change his employer etc.

The MHA has published a notification making it mandatory for employers to report the termination and/or departure of all foreign nationals working in India. Please note that this applies to all foreign national employees whether they are required to register or not.

Investment Related Residence Rights

The Government of India has decided to woo foreign investors with permanent residency rights and to provide financial support to facilitate trade with South–East Asian countries including Cambodia, Vietnam, Laos and Myanmar through the Export Import Bank of India to investors who bring a minimum of about USD 1.5 million in 18 months about USD 3.6 million in 36 months and generate at least 20 jobs every year[2].

The permanent residence status to foreign investors is expected to be for a period of 20 years. The foreign investor will be entitled to own one residential property and the spouse will be allowed to work or study here. This scheme will however not be made available to Pakistani or Chinese nationals.

An official statement issued states, “Permanent residence status will serve as a multiple entry visa without any stay stipulation and holders will be exempted from registration requirements. They will be allowed to purchase one residential property for dwelling purpose. Spouse and dependents will be allowed to take up employment in private sector (in relaxation to salary stipulations for employment visa) and undertake studies in India”. The statement further added that the fund will help to benefit domestic companies’ business expansion and grant access to cost competitive supply chains in addition to helping them integrate with global production networks.

Further, under current regulations most foreign nationals could qualify for naturalization as Indian citizens after staying in India for 12 years in qualifying long term status subject to certain criteria.

Expanded use of eVisas

With an eye to make Indian yoga and its age-old medicine system accessible to all nationals, the Government of India has decided to include ‘attending a short-term yoga programme’ to its existing list of permissible activities under Tourist and E-Tourist Visa[3].  The Government has also included ‘short duration medical treatment under Indian systems of medicine’ thus expanding the list of permissible activities for an E-Tourist Visa.

A foreign national may apply for a tourist visa for the purposes of recreation, sightseeing, casual visit to meet friends or relatives or attending a short-term yoga programme while a foreign national whose sole objective of visiting India is recreation, sightseeing, casual visit to meet friends or relatives, attending a short-term yoga programme, short duration medical treatment including treatment under Indian Systems of medicine or casual business visit may apply for an E-Tourist Visa.

It is pertinent to note that the main difference between a Tourist Visa and an E-Tourist Visa is that while an E-Tourist Visa must be applied online minimum four days prior to the date of travel.  This visa is issued with a validity of a period of 30 days and may be used twice in a calendar year.  Whereas, a Tourist Visa has to be obtained from the concerned Indian Mission prior to arrival in India and the duration of stay differs on a case to case basis.

Grant of Citizenship Made Easier for Certain Pakistan Nationals

A proposal has been put forth to simplify the procedures to grant Indian citizenship to minority Hindus from Pakistan[4].  Under the proposal, such Pakistani nationals staying in India on a Long-Term Visa will be permitted to open bank accounts with prior RBI approval, subject to certain conditions, to buy property, obtain a Permanent Account Number (PAN) and Aadhar Number, will be given permission to take up self-employment or for doing business.

The Collectors or District Magistrates of the following 18 districts will be empowered to grant citizenship to such individuals at heavily discounted fees:

  • Raipur in Chhattisgarh;
  • Ahmedabad, Gandhinagar, Rajkot, Kutch and Patan in Gujarat;
  • Bhopal and Indore in Madhya Pradesh;
  • Nagpur, Pune, Mumbai and Thane in Maharashtra;
  • West Delhi and South Delhi in The National Capital Territory;
  • Jodhpur, Jaisalmer and Jaipur in Rajasthan; and
  • Lucknow in Uttar Pradesh

PIOs to OCIs

The Government of India issued a notification dated January 9, 2015 regarding the merger of the Persons of Indian Origin (PIO) and Overseas Citizens of India (OCI) Schemes[5]. It stated that all existing PIO card holders registered as such under the new PIO card scheme of 2002 are expected to apply for an OCI card before December 31, 2016.

The deadline for the conversion of the cards has been extended several times since implementation of the scheme to give more time to PIO card holders to submit their applications for registration as an OCI card holder.  The previous deadline was June 30, 2016. 

Biometrics in London

The High Commission of India in London announced by way of a press release on August 5, 2016[6] that applicants for seven visa categories but not including business or tourist visas are required to register their bio-metric data effective August 19, 2016.

Individuals applying for any of the visas as set out below at the Indian Visa Application Centers in the U.K. will now be required to appear in person and submit bio-metrics – finger print data and facial photograph:

  • Employment Visa;
  • Journalist Visa;
  • Research Visa;
  • Student Visa;
  • Visit Visa (applicable only to Pakistani nationals);
  • Project Visa; and
  • Missionary Visa

It is pertinent to note that applicants under the age of 12 or over the age of 70 are exempt from the new biometric enrollment requirement.

It may thus be noted, that 2016 has seen a growth by 6.8% of foreign arrivals in India due to a series of initiatives taken by the government including the online visa facility which has now been extended to over 100 countries and other visa reforms whose impact is now being felt.

Disclaimer: The contents of this publication are not a comprehensive consideration of the subjects discussed and are designed to provide preliminary, general information.  Readers should not conclusively rely on the information as legal advice and should seek independent counsel before any action is taken with respect to these or other specific issues.

[1] http://egazette.nic.in/WriteReadData/2016/168653.pdf (Accessed on November 20, 2016)

[2] http://www.livemint.com/Politics/LQtHJFnhpg9YggO9fFd9IN/India-said-to-consider-Rs10-crore-residence-visa-to-lure-inv.html (Accessed on November 21, 2016)

[3] http://mha1.nic.in/pdfs/MaterialTV_02062016_01.pdf (Accessed on November 21, 2016)

[4] http://mha1.nic.in/pdfs/LTVFacilities_230816.pdf (Accessed on November 20, 2016)

[5] http://mha1.nic.in/pdfs/MaterialtobeplacedonMHAwebsiteregardingOCI080615.pdf (Accessed on November 20, 2016)

[6] http://www.vfsglobal.com/india/uk/pdf/Introduction-of-Mandatory-Biometric-Enrolment.pdf  (Accessed on November 20, 2016)

Ashwina Pinto

Ashwina Pinto

Junior Associate at LawQuest

Email: ashwina@lawquestinternational.com
Tel: +91 22 4002 0954

Ashwina Pinto joined LawQuest in September 2016 and is working as a junior associate. She graduated from the University of Mumbai in 2016.

Poorvi Chothani, Esq.

Poorvi Chothani, Esq.

Managing Partner at LawQuest

Email: poorvi@lawquestinternational.com
Tel: +91 22 4002 0954

Poorvi Chothani, Esq. is the Founder and Managing Partner of LawQuest, an immigration and employment law firm based in Mumbai, India. Poorvi's practice has been focused on immigration law since 2003 and she has more than 30 years of experience in dispute resolution, corporate and commercial laws. Poorvi is licensed to practice in India, New York and England and Wales.

Poorvi has been consistently nominated, amongst the world's leading immigration private practice lawyers in “Who's Who Legal” each year since 2009. She is often quoted in the Economic Times, India's leading business daily and on radio and CNBC-TV 18 and Zee Business News.

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About Poorvi Chothani, Esq.

Email: poorvi@lawquestinternational.com Tel: +91 22 4002 0954
Poorvi Chothani, Esq. is the Founder and Managing Partner of LawQuest, an immigration and employment law firm based in Mumbai, India. Poorvi's practice has been focused on immigration law since 2003 and she has more than 30 years of experience in dispute resolution, corporate and commercial laws. Poorvi is licensed to practice in India, New York and England and Wales. Poorvi has been consistently nominated, amongst the world's leading immigration private practice lawyers in “Who's Who Legal” each year since 2009. She is often quoted in the Economic Times, India's leading business daily and on radio and CNBC-TV 18 and Zee Business News.