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Nasscom gmc2013 indian_immigration

Oct 22, 2014

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Page 1: Nasscom gmc2013 indian_immigration

GLOBAL MOBILITY CONFERENCE 2013

1www.fragomen.com

Page 2: Nasscom gmc2013 indian_immigration

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• Indian Immigration – Historical Perspective (Pre & Post 2009)

• Recent Developments - Post 2011

• Implications for Organizations

• Business and Employment visas – Permitted and Prohibited activities

• Indian ‘E’ Visa Process – Key attributes & Highlights

• Penalties for Noncompliance

Agenda

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Historical Perspective –

Pre (◄) & Post (►) 2009

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Pre (◄) 2009 Post (►) 2009

• Detailed guidance/regulations unavailable for public use

• Limited focus on tax and security issues

• Minimal use of technology with broad based interpretation & discretionary adjudication

• Less cumbersome consular and in-country processes, lighter penalties

• High degree of centralized control at MHA and MEA

• Clearer guidelines published since 2009, increased documentary requirements

• Minimum salary criteria of USD 25,000 per annum introduced across Industries

• Implementation of 2 year residency requirements for 3rd country nationals

• Increased focus on specialized knowledge, tax and minimum salary

• Additional security clearance process at MHA for restricted nationalities (such as Pakistan, China, Bangladesh, Sri Lanka and Afghanistan)

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• Introduction of IVFRT system to streamline immigration processes and track non–

compliance

• Delegation of powers from MHA to FRRO/FRO for immigration matters

• Tourist Visa-on-arrival extended to 11 countries with plans of further inclusions

• 2 month interim cooling period eased out for certain nationals excluding restricted

nationals

• Inconsistent application of Indian immigration policy due to increased discretionary

powers

• Stricter compliance requirements & enforcement

• In-country conversion possible for X (Entry) Visa to E (Employment) Visa for spouse

of an employee on intra-company transfer

• Provisions for change of employer in India within the same group of companies

• Evidence of local recruitment efforts required for Registration in Hyderabad and Kochi

• Residence permits for company Directors - issued and extended on a 3 month basis

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Recent Developments - Post 2011

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• Continued and frequent changes in the regulations without prior notification.

• Close scrutiny of the applications by the respective adjudicating officers.

• Lack of tax and other related documentation may lead to upright rejections at the

local FRRO/FROs for visa extensions.

• Mandatory online application and appointment system at certain FRRO locations.

Appointments to be preplanned to avoid impacting compliance and international

travel

• Varied endorsements made by Indian Consulates on visas which conflict with the in-

country regulations. The FRRO/FRO process in such situations can be time consuming

and delayed.

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Implications for Organizations

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Permitted () & Prohibited (Ø) Activities on B Visa

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Permitted () activities Prohibited (Ø) activities

Attending business meetings, discussions, seminars, conferences

Visiting staff in Indian entities, observing operations and processes, team evaluations

Exploring entrepreneurial possibilities, purchasing or selling industrial products

Recruiting manpower, Receiving in-house training, professional development & retraining programs;

Conducting visits for pre/post sales activities without entering into a contract or project

Monitoring specific projects without performing hands-on work

Lecturing at institutions of higher academic or professional education

Ø Productive employment

Ø Participating in remunerative activities including project work whether at company location or client site

Ø Training activities – on the job training involving knowledge transfer/process transition

Ø Audit activities – internal and external

Grey Area: Imparting training

Duration of Visa: Varies from 6 months to 10 years (Reciprocity, Nationality & Discretion)

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• Employment Visas issued for one year or for the assignment duration which ever isless

• For remunerative or productive activity (international assignments or projects) inIndia

• Used for both intra-company transfer as well as direct hiring arrangements

• E visa is both location and sponsor specific – does not allow free employment

• Processing time: 2 days to 3 months, dependent on nationality, country of lodgment

• Consulates issuing visas without a stamped seal/signature and with uniqueendorsements

• Employment visa extension : up to a total period of 5 years from the date of issue ofthe initial Employment Visa, on an year to year basis. In-country filing is mandatory

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E (Employment) Visa/ Work Visa

Category of Visa for Interns

Students: Student visa or Business visa

Fresher/Paid Internship: Employment visa

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• E Visa process is essentially consular and jurisdiction based unlike most countries

• Registered Corporate entity with Indian operating presence is a must to sponsor

E visas

• Sponsorship of visa application does not create an Employer - Employee

relationship

• Indian corporate sponsor must issue an employment/offer letter and supporting

documents

• Employment visa available only for highly skilled professionals

• Proof of residence in India is mandatory at the time of visa application filing (few

countries)

• Indian immigration status of foreign local/direct hires must be verified prior to

hiring

• Personal appearance may be required during the visa application process

Indian ‘E’ Visa Process – Key Attributes

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Foreign nationals with multiple valid passports must use same passport only for all their Indian visa applications

Previously issued visas are deemed to be cancelled even if it is not manually cancelled & only the Latest issued visa is considered to be as valid

Applications filed outside the home country or country of birth may bereferred back for internalclearances by the Consularofficers

FRRO authorities now conducting initial background verificationson new corporate entitiesprior to issuing resident permits in certain instances

Indian authorized signatory required for signing certain

immigration documents (Financial undertaking etc.,)

Dependent (X) Visa holders must reside in the same city as the Employment (E) Visa holder

Check to be made by Organizations on immigration status of local hires and on any change in immigration status of existing employees

Resident permits and visas must be valid at the time of departure from India

Termination of foreign employee must be notified to the local FRRO/FRO authorities and appropriatesteps should be taken for immediate repatriation

Other Highlights of Indian Regulations

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Penalties For Non-Compliance

# Registration of Foreigners Act/Rules 1939/1992 and Foreigner’s Act 1946

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