August 20, 2010
The Ministry of Home Affairs in New Delhi has issued a new set of guidelines for employment and business visas, in the form of a “Frequently Asked Questions” or “FAQ” sheet. This can be accessed here. The main points of the new guidelines are summarized below.
IT and Ites Sectors
The rules for employers in Information Technology (IT) or Information technology enabled services (ITes) announced at the end of May this year (see Global Brief (here) remain unchanged. Those details are summarized below:
- No limit on number of skilled/highly skilled foreign nationals.
- Salary of foreign national should be at least $25000USD per annum.
- Visas may be granted for validity of up to three years or to the term of assignment whichever is less
Non IT/ITes Sectors
For non IT or ITes firms in India, the following new rules have been announced:
- A cap on numbers of skilled/highly skilled foreign nationals to be hired at 1% of the total workforce up to a maximum of 20 foreign nationals. This quota system was originally introduced in July and October 2009. In June 2010, Pro-Link GLOBAL was informed that it has been removed altogether – however, the new FAQ issued by the Ministry of Home Affairs reinstated the quota system. However, the following relaxation has been introduced:
- Where 1% of the workforce is less than 5 employees, such companies may bring up to 5 foreign national employees in.
- No minimum salary cap is specified
- Visas may be granted for validity of up to two years or to the term of assignment whichever is less.
- Holders of visas valid for longer than 180 days will be required to register with the Foreigners’ (Regional) Registration Office within 14 days; this requirement will be noted on the visa as before.
Business visas may now be granted up to a maximum period of five years, or for US nationals up to a maximum validity of ten years, usually with a maximum duration per stay of six months, which will be noted on the visa. Previously, business visas were granted for a maximum duration of one year.
If the validity is less than five years, the visa can be extended in India by the Ministry of Home Affairs (MHA).
Further extensions, in increments of one year, up to a total duration of five years from the initial date of issuance, if required, may be granted by the State Governments/ UT administrations/ FRROs/ FROs at their discretion.
In the event that the stays on the business visas are not limited to six months, the business visa will note that registration with the Foreigners’ (Regional) Registration Office will be required within 14 days.
The FAQ sheet issued by the Ministry of Home Affairs emphasizes that foreign nationals in India to undertake project or contract work must obtain employment visas, not business visas. However, 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 technical guidance may obtain business visas.
Previous FAQs issued by the Ministry of Home Affairs were very clear that imparting training was an activity that required an employment visa, while coming to India to receive training was permissible on a business visa. The newly issued FAQ sheet, however, does not discuss training activities, and so Pro-Link GLOBAL anticipates that each case will be assessed on its own merits.
ACTION ITEMS FOR EMPLOYERS
Note that for non IT/ITes companies, a limit on foreign nationals has been reinstated, at 1% of the total workforce up to a maximum of 20 foreign nationals.
However, a relaxation of the limit has been introduced – where 1% of the workforce is less than 5 employees, such companies may bring up to 5 foreign national employees in.
Note that rules for It/ITes companies remain unchanged.
Note that business visas may now be issued for five years, or ten years for US nationals, but that maximum duration of stay per visit remains at 6 months.
Caveat Lector | Warning to Reader
This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification.
Pro-Link GLOBAL worked with our PLG|KGNM correspondent office in India to provide this Global BRIEF alert to you.