In this article, Arnaaz Pestonji pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses all you need to know about Business Visa issued by India.

Introduction

Foreigners intend to enter India in order to start up their own business. For the entry of foreigners, Central Government has made certain rules and Acts were legislated by Indian Parliament.

In India, administration of all matters and statutes related to the visa of foreign nationals is governed by The Foreigners Division of Ministry of Home Affairs (MHA). The Foreigners Division of MHA implements and formulates visa policy including their rules, regulations, and procedures.

The Consular, Passport and Visa Division acts as an advisory body and accompanies the Foreign Division of MHA in policy making and administration of visas. Also, the Passport Act 1920, Foreigners Act 1946 and the Registration of Foreigners 1939 are the primary acts that provide provisions related to the entry and stay of Foreign national in India and exit of foreign national from India.

Available Visas

A foreign national depending upon the purpose of the visit in India will accordingly apply for a visa. For instance, a tourist intending to visit India for a tour will apply for a tourist visa, a student intending to study from a university in India will apply for a student visa and so on.

Types of visas

1. Tourist Visa
2. Employment Visa
3. Business Visa
4. Student Visa
5. Entry Visa
6. Research Visa
7. Journalist Visa
8. Medical Visa
9. Return Visa
10. Project Visa
11. Conference Visa
12. Transit Visa

Business Visas

Foreign nationals who want to establish their business in India will apply for a business visa. In order to conduct business activities in India, business visa applicants that are collaborating or joining into a business venture with an Indian company or organization, will require the organization to provide a letter stating the nature of the business, duration of stay, places to be visited, and intention to meet expenses as a part of the business visa application.[1]

The basic difference between a business visa and employment visa is that the applicant won’t be working for, and earning an income from, an organization in India as it is in the case of an employment visa where the person works as an employee and is not an entrepreneur.

Documents

1. Passport which must be valid for a minimum period of six months
2. Recent photographs
3. Non-immigrant visa application which is signed by the applicant
4. Visa Fee
5. Proof of intent to return to his/her country of residence

Essentials

• The foreign national must have all valid travel documents and a re-entry permit.
• The Foreign national cannot be insolvent and must have a sound financial standing.
• The Foreign national should be an expert in the intended field of business or should be a person of credibility in the society.
• The Foreign National must comply with all necessary requirements prescribed by the Government of India.

Restrictions

• The foreign national cannot enter into the business of money lending.
• The foreign national cannot run a petty business or petty trade.
• The foreign national cannot have full-time employment in India.
• The foreign national cannot take part in activities related to remuneration which includes project work at the company’s location or at the client site.
• The foreign national cannot perform training activities which include on the job training activities or activities related to process transition or transfer of any kind of expert knowledge.
• The foreign national cannot audit activities whether internal or external.

Activities Allowed while on a Business Visa in India

Foreign nationals are allowed to establish industrial or business venture or perform activities related to exploring the possibility of setting up industrial or business venture in India.

There are some activities which are allowed on a Temporary Business Visa in India:

1. Foreign nationals are allowed to purchase/sell industrial products, commercial products or consumer durables.
2. Foreign nationals are allowed to attend board meetings, annual general meetings or any type of technical meeting for providing support of business services in the discussions.
3. Foreign nationals are allowed to conduct required activities to recruit manpower for their business.
4. Foreign nationals are allowed to be appointed as partners in a Partnership firm or function as Directors of a company.
5. Foreign nationals are allowed to provide consultations regarding exhibitions and can also participate in exhibitions, trade fairs, business fairs etc.
6. Foreign nationals are allowed to enter into business transactions relating to goods or services procuring in India with Indian suppliers or potential suppliers and can place an order or make evaluations regarding the quality of the product or inquire about the specifications or enter into negotiations for further transactions.
7. Foreign nationals, being specialists in their respective fields, intending to provide their expert guidance on various work-related matters and monitoring the performance of the company are allowed conduct meetings in India including meetings with Indian customers.
8. Foreign nationals are allowed to conduct pre-sales or post-sales activities related to their business.
9. Foreign nationals who are trainees by profession are allowed to provide in-house training in the Indian company and their regional hubs.
10. Foreign nationals who are students and are sponsored by AIESEC are allowed to perform internship on project-based work in Indian companies or Indian Industries.
11. Foreign nationals who are tour conductors and travel agents by profession are allowed to conduct business tours of foreigners or conduct business relating to it.
12. Foreign Nationals can make Investment in India through various mediums as a form of business.[2]

Types of Foreign Investment Allowed in India

A foreign national is allowed to make investments in India in order to conduct business activities. The following are the routes through which a foreign national can make investments in India:

• FPI – Foreign Portfolio Investment
• FDI- Foreign Direct Investment
• FII – Foreign Institutional Investors
• FVCI – Foreign Venture Capital Investor
• G-Sec – Government Securities
• LLP – Limited Liability Partnership Firm
• NCD – Non-convertible Debenture
• QFI – Qualified Foreign Investor
• RFPI – Registered Foreign Portfolio Investor

As 100 percent FDI is now allowed in various sectors, it has become easier for foreign nationals to conduct business in India. However, there are certain norms prescribed by the Government of India that need to be followed. This is provided in the Consolidated Foreign Direct Investment Policy issued by way of circulars by the Department of Industrial Policy and Promotion (DIPP), Ministry of Commerce & Industry, Government of India.[3]

Automatic Route, Government Route, and Prohibited Sectors

Foreign citizens are allowed to make investments by issuing shares or debentures of an Indian company by following either the Automatic Route or the Government Route.

Automatic Route

Under this, the foreign national does not require any approval from Government of India to make an investment in India.

Government Route

Under this, prior approval of the Government of India is required. Foreign Investment Promotion Board is the regulating authority for foreign investment that considers proposals for a prior approval under this route

Prohibited Sectors

Foreign Nationals are prohibited to invest in these sectors, directly or indirectly:

• Lottery Business including Government /private lottery, online lotteries, etc.
• Gambling and betting including casinos etc.
• Chit funds
• Nidhi Company
• Trading in Transferable Development Rights (TDRs)
• Real Estate Business or Construction of Farm Houses
• Manufacturing of Cigars, cheroots, cigarillos, and cigarettes, of tobacco or of tobacco substitutes
• Activities/sectors not open to private sector investment e.g. Atomic Energy and Railway Transport (other than permitted activities).
• Foreign Technology collaboration in any form for Lottery Business and Gambling and Betting activities (including licensing for franchise, trademark, brand name, management contract) [3]

Contravention of Indian Laws by Foreign National

Choosing the appropriate visa category depending upon the purpose behind the visit to India is of utmost importance as in the case of any misinterpretation the Foreign national may have to face grave consequences as illegal entry and overstay is criminally prosecutable in India.

If there is any non-compliance it is not only the foreign national who will be subject to the appropriate consequences, the consequences will extend to the Indian entity that’s sponsoring and inviting the foreign national to conduct business with them as well.

Consequences of Non-Compliance for the Foreign National may include:

• Investigation and questioning by the Intelligence Bureau or Bureau of Immigration; and
• Imprisonment up to one year or more, expulsion from the country and any penalties as deemed fit by the immigration authorities; and

Penalties as prescribed by Indian law, which may include imprisonment and heavy fines.

Consequences for such Indian Entity may include:

• Investigation and questioning by the Intelligence Bureau or Bureau of Immigration; and
• Prosecution and monetary penalties for mobilizing an unauthorized individual as well as the blacklisting of the company or entity, which may impact the inflow of future foreign employees and business travellers from the same entity. [4]

How to report any wrongdoings

Any person against whom an offence has been committed by foreign national or is a witness to the offence can lodge a complaint in the nearest Police Station by filing an FIR (First Information Report) and can also attach a copy of the complaint to the Central Vigilance Commission (CVC), Ministry of External Affairs and Home Minister.

The police will then conduct their investigation, record their findings on a charge sheet and if there is enough proof the Foreign national will be tried before a competent Court which has the required jurisdiction.

In case of crimes committed by Foreign National which are heinous in nature or are of a greater magnitude and have violated any fundamental rights provided under the Indian constitution, the complainant can file a writ petition directly in High Court under Article 226 or in Supreme Court under Article 32 for relief which can be in the form of compensation or imprisonment or both.

Offences committed by Foreign Nationals

Any Foreign National who contravenes or violates provisions or laws under Acts such as Foreigners Act 1946, Passport (Amendment) Act 2002, Foreign Exchange Management Act 1947, Code of Civil Procedures 1908, Criminal Code of Procedures, Indian Penal Code or Narcotic Drugs and Psychotropic Substances (Amendment) Act 2014 or any other statutory act as prescribed by the Constitution of India can be tried for an offence in India as per the Indian laws. For instance, if a foreign national commits any kind of fraud, cheating or dishonesty while setting up business in India, a case under section 420 of the Indian Penal code(IPC) can be registered against him/her.

In the event some documents are forged as valuable security or will, section 467 of IPC is applicable. Whereas if the document or record is forged for cheating a case under section 468 of IPC can be registered.

Punishment

• The punishment which is given under section 420 and section 468 of IPC is imprisonment for a term which may extend to seven years, and also be liable to fine. These offences are cognizable and fall under the category of Non-Bailable.
• An offence under section 467 of IPC is punishable with imprisonment for life, or with imprisonment of for a term which may extend to ten years, and also be liable to fine.
• When a foreign national is a party to the criminal conspiracy to commit a crime, section 120B of the IPC is added to other sections of FIR. This offence is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

References

[1] Title- Citizenship Pathways and Border Protection: India, Author – Tariq Ahmad, dated – March 2013, Retrieved from – https://www.loc.gov/law/help/citizenship-pathways/india.php

[2] Title- FAQs Relating to Work-Related Visas Issued by India, Retrieved from- http://mha1.nic.in/pdfs/ForeigD-work_visa_faq.pdf

[3] Title- Business Visa India, Immihelp; Retrieved from- https://www.immihelp.com/nri/indiavisa/business-visa-india.h

[4] Title – Indian Immigration Compliance: Mobilizing Foreign Business Travellers, Author – Manal Galaria, dated- 17th August 2015, Retrieved from – https://www.fragomen.com/insights/blog/indian-immigration-compliance-mobilizing-foreign-business-travellers

Other References

• Foreign Exchange Management Act 1999
• Passport Seva – http://passportindia.gov.in/AppOnlineProject/online/visaServices
• Passport (Entry into India) Act 1967
• Foreigners Act
• Foreigners Division
  Ministry of Home Affairs
  The Government of India ( http://mha1.nic.in/foreigDiv/ForeigHome.html)
• Bureau of Immigration
• Ministry of Home Affairs
  The Government of India (http://boi.gov.in/content/business-visa-b )