In an effort to protect India’s lesser skilled workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs (MHA) has issued an order and released a new FAQ (frequently asked questions) document stating that employment visas are intended for foreigners desiring to come to India to work if the applicant is a highly skilled and/or qualified professional engaged or appointed by a company, organization, or industry undertaking in India on a contract or employment basis.
Employment visas will not be granted for positions for which qualified Indians are available, the FAQ states. Also, employment visas will not be granted for “routine, ordinary or secretarial/clerical jobs.”
The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.”
Further, the FAQ states, the foreign national being sponsored for an employment visa in any sector should draw a salary above US $25,000 per year, with the exception of ethnic cooks, language teachers (other than English) and translators, and staff working for the “concerned Embassy/High Commission in India.”
The MHA also has announced the elimination of the prior maximum of 1% of the total workforce, or up to 20, for each Indian company that sponsors foreign workers.
The employment visa must be issued from the country of origin or country of domicile of the foreigner, provided the period of permanent residence of the applicant in that country is more than 2 years.
Documentation pertaining to the proposed employment, such as registration of the company under the Companies Act, proof of registration of the firm in the State Industries Department or the Export Promotion Council concerned, or any recognized promotional body in the field of industry and trade, will be reviewed to decide the category of visa that may be issued.
The name of the sponsoring employer or organization must be clearly stipulated in the visa sticker.
The following categories of foreign nationals are also eligible for employment visas provided they meet the basic conditions for an employment visa:
(i) Foreign nationals coming to India as consultants on a contract for whom the Indian company pays a fixed remuneration (this may not be in the form of a monthly salary).
(ii) Foreign artists engaged to conduct regular performances for the duration of an employment contract given by hotels, clubs, or other organizations.
(iii) Foreign nationals coming to India to take up employment as coaches of national or state-level teams or reputed sports clubs.
(iv) Foreign sportsmen who are given contracts for a specified period by Indian clubs or organizations.
(v) Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or other such highly skilled services in their capacity as independent consultants, provided the provision of such services by foreign nationals is permitted under law.
(vi) Foreign language teachers and interpreters.
(vii) Foreign specialist chefs.
(viii) Foreign engineers or technicians coming to India to install and commission equipment, machines, or tools under the terms of a contract for the supply of such equipment, machines, or tools.
(ix) Foreign nationals deputed for providing technical support or services, or transfer of know-how or services, for which the Indian company pays fees or royalties to the foreign company.
Regarding the duration of the employment visa, the rules have different validity dates depending on the employment arrangement. These are summarized as follows:
(i) A foreign technician/expert coming to India under a bilateral agreement between the Indian government and the foreign government, or pursuant to a collaboration agreement that has been approved by the Indian government, may be granted a multiple employment visa for the duration of the agreement, or for a period of five years, whichever is less.
(ii) Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors may receive a multiple entry employment visa for up to three years or for the term of assignment, whichever is less.
Applicants who are not covered under any of these two arrangements may obtain a multiple entry employment visa for up to two years or the term of assignment, whichever is less.
Finally, the rules provide for extensions beyond the initial visa validity period, up to a total period of five years from the date of issue of the initial employment visa, on a year-to-year basis, subject to the individual’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns and to there being no adverse security inputs relating to the foreign national. The period of extension shall not exceed five years from the date of issue of the initial employment visa.
The FAQ, which contains additional details on business and work-related visas issued by India, is available at http://www.mha.nic.in/pdfs/work_visa_faq.pdf.
Cyrus D. Mehta
