India: New Guidelines for Stricter Enforcement of Business and Work Visa Requirements

India: New Guidelines for Stricter Enforcement of Business and Work Visa Requirements

Indian diplomatic posts worldwide are no longer accepting employment visa applications from individuals who are not nationals of the country where the post is located. Instead, these applicants are advised to file their applications at the post in their country of citizenship. This change does not affect business visa applications. The government has issued new guidelines which prescribe stricter enforcement of business and work visa requirements for foreign nationals engaging in contractual or project work, including specific processes in relation to Chinese nationals.

The Indian government recently issued guidelines introducing new requirements governing where foreign nationals may submit employment visa applications. The guidelines also prescribe stricter enforcement of employment visa requirements for foreign nationals entering India for contractual or project work, and clarify the procedures for the adjudication and issuance of employment visas to Chinese nationals engaged in contractual or project activities.

Work Visa Applications to be Filed in Home Countries

Pursuant to the guidelines, Indian diplomatic posts now accept employment visa applications only from nationals of the country where the post is located. Other nationals, including those with work or resident status overseas, are now required to file their employment visa applications at the Indian diplomatic post in their country of citizenship.

This change does not apply to business visas, which can still be obtained at the diplomatic post nearest to the applicant’s current place of residence.

Clarification on Permitted Business Activities and Work Visa Requirements

The guidelines clarify the scope of allowable business activities for business visa holders and the eligibility criteria for employment visas with reference to certain provisions of the Visa Manual, an internal policy document of the Ministry of Commerce and Industry.

It is no longer possible to use a business visa to enter India and engage in project or contractual work. While there is no official definition of “project or contractual work” in India, it typically refers to working in oil exploration, power generation, heavy engineering, and similar major projects. However, in this context, the Indian immigration authorities likely intend to cover productive work in general, regardless of industry or service area.

The new guidelines now limit the issuance of business visas to strictly business-related activities, which generally are regarded as attending business meetings and discussions, although the guidelines refer specifically to exploring opportunities for investment, establishing a business, and purchasing or selling industrial products in accordance with the Ministry of Commerce and Industry’s internal criteria. For activities that do not clearly fall under the usual permissible activities for business visitors, an employment visa is required.

The guidelines state that business visa holders already in India and performing contract or project work must leave the country by September 30, 2009 or before their existing visas expire, whichever is earlier. An employment visa will be required to re-enter India to continue the relevant activities. While the guidelines do not specifically discuss consequences, the immigration authorities have the ability to impose penalties for non-compliance, which under current practice are determined on a discretionary and case-to-case basis.

Similarly, individuals with pending business visa applications to conduct contract or project work activities will have their applications returned by the consular authorities. They will also be directed to obtain employment visas.

The guidelines also tighten the criteria for individuals who intend to perform contractual or project work to qualify for employment visas. Applicants must hold a senior-level, skilled position with the sponsoring company, such as a senior executive, technical expert, or manager. This requirement applies to intra-company transferees and directly hired employees alike. Applications involving jobs for which a large number of Indian nationals qualify or which are low-skilled in nature will not be considered.

Processes Affecting Chinese Nationals

Chinese nationals applying for employment visas are subject to an additional requirement called a security clearance. In the past, security clearance applications were referred by Indian diplomatic posts to the Ministry of Home Affairs (MHA) and were often delayed there indefinitely. Until the issuance of the guidelines, the clearance process was known only internally to the relevant government agencies.

The guidelines clarify the application process for security clearances. Individual applicants and their sponsoring entities are required to file the application with the relevant Indian diplomatic post and submit a copy to the MHA in New Delhi. The diplomatic post endorses the application to the MHA, who in turn forwards copies of the application to the Intelligence Bureau and the Ministry of Labour for review. Based on the recommendation of these agencies, the MHA conveys the approval or denial of the application to the diplomatic post. The clearance process is expected to take around 60 days or longer.

The guidelines also announced that the Indian government is monitoring Chinese nationals who may be on expired business visas and working on projects or contracts in India. Diplomatic posts are working with the Intelligence Bureau to compile information on business visas issued to Chinese nationals since January 1, 2008, including the visa holder’s name, sponsoring entity, visa validity period, and educational qualifications, among other details. Individuals and sponsoring companies found in violation will face penalties, which under current practice are discretionary and may take any of the following forms: negative publicity against the company, monetary fines, blacklisting of the company or individual, re-entry bars on the individual, or imprisonment.

Further updates on these developments are expected to be announced shortly. Fragomen is monitoring these developments in India and will issue updates as they become available.

The content herein is provided for informational purposes only. If you have any questions, please do not hesitate to contact the global immigration professional with whom you work at Fragomen Global Immigration Services or send an email to INInitiations@fragomen.com.

Source: Fragomen