Reverse Immigration: Foreign Nationals Working In India
This article originally appeared in www.cyrusmehta.com.
At the time of writing this article (May 18 2004), Italian-born Sonia Gandhi, leader of the Congress party that won the largest number of seats in India’s latest parliamentary election, almost became India’s next Prime Minister. Although Mrs. Gandhi acquired Indian citizenship in 1983, her foreign antecedents were constantly vilified by her political opponents during the campaign. This vilification became more intense when she was being considered for the top post by her party after the polls. Even if she has decided to step aside, despite fervent entreaties from her supporters, this election has shown to the world India’s openness in accepting a foreign-born prime minister, something that is legally impermissible in the other big democracy, the United States of America. The Times of India (Editorial, May 13, 2004) stated that, “Persistent questions about Sonia’s foreign antecedents should be silenced once and for all by the huge groundswell of support for her party. This is the age of ‘liquid nationalism’, where citizenship and allegiance are – or, at least, ought to be – matters of choice rather than descent.”
This article will focus on how foreign nationals can work in India. A subsequent article will discuss how foreign nationals can acquire Indian citizenship.
Times have changed since the 1980s when there was an exodus of skilled, trained and educated workers from India to the United States and several other developed countries. There is no exodus of workers to India as yet, but there is definitely great interest among foreign nationals to work in India. According to some estimates there are about 30,000 foreign nationals currently working in India and the number is increasing. This trend seems likely to continue for the next few years.
Several factors have contributed to this interest. The increasing rate of unemployment in certain developed countries due to the paucity of high end jobs, coupled with the economic growth of India, are two of the main factors influencing foreign nationals seeking employment in India. Foreign nationals are being posted in India by their employers abroad and are also directly seeking employment by applying for jobs with recruitment firms or by responding to employment advertisements and postings on the World Wide Web. Some recruitment firms have also reported that they have received unsolicited applications from abroad.
Several organizations need skilled and knowledgeable expatriates to work in India in several areas including fashion, hospitality, health care and biotechnology. Further, foreign companies setting up businesses in India frequently need individuals with special expertise not available in India. These types of individuals arrive in India to either start up an organization or to transfer knowledge to the local employees and return to their home countries. India also needs people with strong foreign language skills to work in Business Process Outsourcing (BPO) units that provide services to non-English speaking countries.
Another group of foreign nationals seeking to work or set up businesses in India are persons of Indian origin. These individuals or families choose to return to India, to their roots, and often to raise children in an “Indian culture.”
All foreign nationals that wish to come to India to work or otherwise require a valid passport of their country and a valid, appropriate Indian visa. India does not issue ‘Visas on Arrival’ to any foreign national; nor does it have any visa waiver program or any visa reciprocity schemes. However, in the case of emergencies or while in transit, certain foreign nationals are allowed to enter India under the Temporary Landing Facility or Temporary Landing Permit on arrival in India without a visa.
Foreign nationals are required to apply for a visa at an Indian Embassy or at the Indian High Commissions abroad that have jurisdiction over their place of residence. The application form is common to all visa categories and the applicant has to indicate on the form the type of visa he/she requires. Visas are available for single entry and multiple entries for periods ranging from 6 months to 10 years, depending on the need and category. The fees range from US $ 10 to US $ 75 depending on the nationality of the applicant, the duration of the visa desired, the number of entries required and the category of the visa. It is advisable to carefully follow the instructions provided with the application form and confirm its provisions with the relevant foreign post.
Following are the types of visas available to work or set up a business in India:
a. Business visa:
Business visas are issued with a validity of six months or one year with multiple entries. It is prudent to attach a letter from the sponsoring organization, if any, indicating the nature of the applicant's business, probable duration of stay, places and organizations to be visited. The letter may also include a guarantee to meet expenses of the foreign national for the duration of his/her stay in India. US nationals are eligible for 10 year multiple entry business visas. A supporting letter indicating the need for such a visa would augment the application.
b. Employment visa:
Employment visas are initially issued for a one-year stay. It should be noted that an employment visa is given only for jobs that require very high levels of skills and expertise. A copy of the contract with the employer must be submitted with the application form. The principal applicant needs to apply for visas for his/her spouse and children. Spouses and children are granted visas with the same validity period as that of the principal applicant. If the spouse wishes to work in India, he/she has to make an independent application for an employment visa based on his/her own employment contract. Employment visas can be extended. This is dealt with in detail below.
Processing Time in the US:
Normally, visa applications of US nationals are processed the same day. . They normally receive visas the same day in the evening, if the application has been submitted early in the day, unless additional clearances are required.
Visas are issued with a validity period from the date of issue, usually for the period requested. Visas once issued cannot be changed into another type of visa unless authorized by the Ministry of Home Affairs in New Delhi, under exceptional circumstances.
Procedure on Arrival into India:
The Indian Bureau of Immigration (BOI) handles the immigration services at the major International Airports in India and the registration of foreign nationals in five major cities.
The field officers in charge of immigration and registration activities at Delhi, Mumbai, Kolkata and Amritsar are called Foreigners Regional Registration Officers (FRROs). The designation of the officer in Chennai (Madras) is Chief Immigration Officer (CHIO). Foreign nationals that do not fall under the jurisdiction of the five major cities are required to register with the concerned Superintendents of Police that act as Foreigner’s Registration Officers (FROs) in the other districts within India. These officers are referred to as Registration Officers in this article.
All passengers arriving in India, both Indians and foreign nationals, are subject to immigration checks on their arrival into and departure from the country. On arrival, passengers are required to complete Card D, the disembarkation card and on departure, Card E, the embarkation card. These cards require the individual to submit information about him/her as well as travel to or from the country.
Registration of Foreign Nationals:
The Registration of Foreigners Act, 1939 and Registration of Foreigners Rules, 1992, regulate the registration of foreign nationals. Foreign nationals entering India on a Student, Employment, Research or Missionary visa, which is valid for more than 180 days, are required to register with the Foreigners Registration Officer under whose jurisdiction they propose to stay. This should be done within 14 days of arrival in India, irrespective of their actual period of stay. The foreign national is required to appear in person for registration before the appropriate Registration Officer. Registration is important and failure to register may lead to punishments and/or penalties.
Foreign nationals, visiting India on any other category of a long-term visa that is valid for more than 180 days, are not required to register if their actual stay does not exceed 180 days on each visit. If such a foreign national intends to stay in India for more than 180 days during a particular visit, he/she should get registered within 180 days of arrival in India. Foreign nationals visiting India on visas that are valid for less than 180 days and children below 16 years of age are not required to register. Nationals of certain countries are required to register within 24 hours to 7 days of their arrival in India.
There is no registration fee. However, if the foreign national overstays or is late in registering with the Registration Officer, a fine is levied, unless the overstay is condoned by the competent authority.
Registration facilities are not provided at the airport. Foreign nationals have to register only at the offices of the appropriate Registration Officer.
Formalities To Be Observed By Foreign Nationals Subject To Registration:
A registered foreign national is issued a Registration Booklet or Certificate containing his latest photograph, details of residence etc. In addition, the foreign national’s passport is stamped as proof of registration. If the foreign national changes his/her address permanently, he/she is required to inform the appropriate Registration Officer of such change. A foreign national is also required to inform the Registration Officer of any material changes in circumstances. Thus, the foreign national must inform the Registration Officer when he/she proposes to be absent from his/her registered address for a continuous period of 8 weeks or more. In addition, a foreign national, who stays for a period of more than 8 weeks at any place away from the district of his/her registered address shall inform the Registration Officer of that district of his/her presence.
Documents Required At The Time Of Registration:
All foreign nationals subject to registration should provide the following documents.
In addition, business visa holders should submit:
· Prescribed, completed registration form;
· 4 photographs;
· Proof of residential address in India; and
· Photocopies of the pages of the passport including the photograph page, and pages showing personal particulars, the Indian visa and latest arrival stamp in India.
Employment visa holders should also submit:
a. Business related papers showing the authenticity of the business.
b. Copy of the approval from Government of India in case of joint venture or collaboration (in duplicate).
c. Copy of permission from the RBI (Reserve Bank of India) in case of business/joint venture, etc.
Form To Be Filled Up By Foreign Nationals Staying At Hotels:
a. Letter of terms and conditions from the employer;
b. Copy of contract with concerned Indian company;
c. Covering/request letter from the company; and
d. An undertaking from the Indian employer indicating that it will take full responsibility for the activities and conduct of the foreign national during his/her stay in India. If anything adverse comes to notice during the employment period, the Indian company undertakes to pay for the cost of travel and repatriation of the foreign national.
All foreign nationals are required to fill up Form-C under Rule-14, Registration of Foreigners Rules, 1992, when they stay in any hotel or other similar commercial premises. However, it is the responsibility of the hotel owner to have the foreign national fill up this form.
Visa Extension / Conversion:
When the foreign national arrives in India, the BOI grants him/her entry to the country for a specific time depending on the purpose of the visit. Thereafter an application is to be made for extensions on the prescribed form along with supporting documents. The MHA has the authority to extend and/or convert a visa. The change of visa status from one category to another category is normally not allowed and the Ministry of Home Affairs (MHA) considers applications for conversions only in extraordinary circumstances.
Foreign nationals living in Delhi can file their applications for extension/conversion to the Foreign Nationals Division, MHA, Lok Nayak Bhavan, Khan Market, New Delhi. Foreign nationals not residing in Delhi may apply to the Registration Officer concerned who would forward their papers to the MHA for approval. Applications for extensions/conversions should be made well in advance as it can take a long time to process the papers.
The appropriate Registration Officer may extend certain categories of visas issued to specific groups of people without forwarding the application to the MHA.
After obtaining an initial approval from the MHA, the appropriate Registration Officer can extend that visa for a further period of four years on a year-to-year basis. This is discretionary and is decided by the Registration Officer on a case-by-case basis.
Restricted or Protected Areas:
Foreign nationals are allowed to travel and/or live in most parts of India, except areas that are designated as restricted or protected areas. These areas are sensitive due to political, ethnic or religious strife and are considered unsafe for foreign nationals. The government of India also wishes to protect these areas from the potential risk of foreign nationals infiltrating these regions with a view to increasing tensions. Foreign nationals can visit restricted or protected areas for a short period of time if they obtain permission from the pertinent Registration Officer. The foreign national should make a request in the form of a letter that should be submitted with the prescribed, completed application form.
Information for Persons of Indian Origin:
Persons of Indian Origin (PIO) who hold the nationality of another country cannot travel to India on an Indian passport. They too will be subject to the same visa requirements as discussed above. However, PIO’s can presently apply for a PIO card at an Indian consulate. Upon obtaining a PIO card, this individual would not have to obtain an Indian visa.
A PIO cardholder is exempt from registration if his/her stay in India does not exceed 180 days. However, if the stay exceeds 180 days, the PIO Card holder has to register within 30 days of the expiry of 180 days with the concerned Registration Officer.
"Person of Indian origin" means a foreign citizen not being a citizen of Pakistan, Bangladesh and other countries as may be specified by the Central Government from time to time if.
(i) he/she at any time held a Indian passport; or
(ii) he/she or either of his/her parents or grand parents or great grand parents was born in and permanently resident in India as defined in the Government of India Act, 1935 and other territories that became part of India thereafter provided neither was at any time a citizens of any of the aforesaid countries (as referred to in 2(b)above; or
(iii) he/she is a spouse of a citizen of India or a person of Indian origin covered under (i) or (ii) above.
(c) "PIO Card" means a card issued under the PIO scheme.
On December 22, 2003, legislation was passed by the Indian Parliament to grant dual citizenship, or overseas citizenship, to persons of Indian origin who are citizens of the following countries: Australia, Canada, Finland, Greece, Ireland, Israel, Italy, Netherlands, New Zealand, Portugal, Republic of Cyprus, Sweden, Switzerland, United Kingdom, and the United States of America. The law has yet to take effect, as the Indian government has to formulate rules, forms and procedures. The new law is likely to eliminate the need for Overseas Citizen passport holders to register for staying in the country.
About The Author
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City. He is Incoming Chair of the Board of Trustees of the American Immigration Law Foundation and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York and former Chair of the Committee on Immigration and Nationality Law of the same Association. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555 or firstname.lastname@example.org.
Poorvi Chothani is a U.S. attorney at law and an advocate, licensed to practice in India since July 1984. She is the Correspondent Attorney in Mumbai, India for Cyrus D. Mehta and Associates, P.L.L.C. In May 2003, she graduated with an LL.M. degree from the University of Pennsylvania Law School and passed the New York State Bar Examination conducted in July 2003. She is admitted to practice law in the State of New York. For further information please write to email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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