In this article, Shubham Kumar of Hidayatullah National Law University discusses the eligibility and process of getting an employment visa. 

Introduction

The entry and stay of foreigners into India is governed by The Passport Act, 1920, The Passport Rules, 1950, The Foreigners Act, 1946 and the Registration of Foreigner Rules, 1992. All the policies related to foreigners are issued by Ministry of External Affairs. The Ministry of External Affairs issues various types of visas depending upon the purpose of visit in India. For instance, in case a diplomat is coming to India ‘D’ visas are issued, whereas in case a tourist is coming for touring purpose ‘T’ visa is issued. The duration of stay, rights, and liabilities of all visas are different. In this article, we would focus on employment types of visas granted to foreigners desirous of working in India.

What is an employment visa?

An employment visa allows a foreign national to work in the country for a temporary period of time. This usually involves a sponsorship by the employer. However, employment visas are issued for a short period. They are also called as work visas or work permits.

Who are eligible for an employment visa?

• Any foreign national coming to India for employment in a company or a firm or an organization registered in India
• Any foreign national coming to India to execute some project awarded to a foreign company
• Any foreign national coming to India as a consultant on a contract getting paid a fixed remuneration
• Foreign artist coming to India for regular performance in hotels, clubs or other organizations
• Foreign nationals who are experts in sports can get employment visa for acting as a coach in any national or state team or any reputed club
• Foreign sportsperson who is awarded a contract by any sports club
• Professional foreign nationals like engineers, doctors, accountants, lawyers desirous of practicing in India
• Foreign language interpreters
• Foreign chefs
• Foreign engineers or technicians to set up plant and machinery procured from outside India
• Foreign national coming to India to provide training and technical support to employees of an Indian company for which the company pays them a fee

What are the conditions to be fulfilled for getting an employment visa?

• The applicant should be a highly skilled or a qualified professional who is being engaged by an Indian Company.
• Employment visas will not be granted for jobs for which qualified Indians are available or for routine, ordinary or clerical jobs.
• The foreign national being employed by an Indian company should be given a minimum salary of US$ 25,000 per annum. However, this condition will not apply to foreign chefs, interpreters, staffs working in the foreign embassy, foreigners working with any NGO.
• For nationals of Bangladesh, Afghanistan, China, Iran and Sri Lanka the condition of a minimum wage is relaxed. In their case, employment visa will be granted if they are offered a minimum salary of US$ 14,000 per annum.
• The foreign national must hold a valid passport.
• The foreign nation must comply with the tax liabilities.
• The foreign national must submit proof of the employment contract with the Indian Company.
• The foreign national is also required to submit his proof of professional expertise which can be in the form of degree certificates.
• The visa sticker should contain the name of the employer.

What is the duration of stay in case an employment visa is granted?

• A foreign national coming to India to provide technical expertise as per the contract between Indian Government and Foreign Government may permit to stay in India for the duration of employment or for a period of 5 years, whichever is less.
• A foreign national who is a skilled professional and is being employed by an IT sector is allowed to stay for a period of three years or for the duration mentioned in the contract, whichever is less.
• A foreign national coming for any other purpose is permitted to stay up to two years.

Can the period of stay be extended?

• Yes, the duration of stay can be extended by the permission of FRROs/FROs. The total period of stay, however, cannot be extended for more than five years from the date of the initial employment visa. This is subject to producing yearly filing of Income Tax returns.

What are the documents required to get an employment visa?

• • Passport Requirement: Original passport and one photocopy of passport with at least two blank passport pages available for India visa stamp.
• Indian Visa Application Form: The foreign national is required to submit one signed application form and one copy of the form. The signature is required at the bottom of the photograph and bottom of the second page of application form. The application form can be accessed at https://indianvisaonline.gov.in/visa/. It must be noted that any downloaded form or handwritten form is not acceptable. The application is completely online.
• Photo requirement: One 2×2 passport sized photograph in colour with a white background should be pasted on the form. Glasses should not be worn in the photograph.
• Proof of state residency can be in the form of driving license of the applicant or state issued ID card.
• A letter of appointment must be submitted by the applicant containing the name of the company, nature of job, duration, position, and salary. Salary must be at least US$25,000.
• The applicant’s resume also needs to be submitted.
• Memorandum of Association or Article of Association of the company being employed in, for proving that the company is registered in India.
• A tax liability letter, from the company in India certifying that the Indian company shall be liable to pay tax in case the applicant defaults.
• A justification letter by the employer stating that applicant is a skilled, qualified professional, senior executive or a technical expert.
• Other documents required can be seen at https://www.immihelp.com/nri/indiavisa/employment-visa-checklist.pdf
• Visa application form link of different countries is available at https://www.angloinfo.com/how-to/india/working/work-permits.

Employment visas for foreigners working with NGOs

• A foreigner working wishing to work with an NGO can be granted an employment visa with a special endorsement on E-Visa mentioning “TO WORK WITH NGO”, name and place of the NGO.
• Other conditions remain the same.

Can the visa be granted to family members of a foreigner coming to India for employment?

Yes, family members or dependents of the foreign national can be granted with an ‘X’ visa. An ‘X’ visa is an entry visa in the country. To get an entry visa same formalities and documents need to be submitted. The validity of entry visa is for the same duration for which employment visa is granted. If the period of stay of the employed foreign national is extended, the same will apply to their family members, however, approval of FROs need to be taken.

Can the employment visa be converted to any other visa during the period of stay?

No, the employment visa cannot be converted to any other visa during the stay except under the following situations:

• If the foreign national who has come to India on employment visa marries an Indian national during the period of stay and after that does not wish to continue his employment, his employment visa can be converted into entry visa on submission of the marriage certificate.
• Any foreigner who falls ill after coming to India rendering him unfit for employment and he/she requires specialized medical treatment, his employment visa can be converted to medical visa on producing a medical certificate from any government hospital. In such cases, visa of family members is also converted into Medical Attendant visa.
• Employment visa of a Person of Indian Origin can be converted to entry visa. Such conversion of visa can only be done by FROs after approval of Ministry of Home Affairs.

Can a foreign national change his employer during the stay period?

No, a foreign national who has come to India on employment visa sponsored by a particular employer cannot change his employer. However, employment can be switched to a holding company or a subsidiary company of the original employer. Change of employer is also permitted under the following circumstances:

• Permission to change employer is taken from MoHA.
• Employment change can be permitted at a senior level.

What if I overstay after the expiry of my employment visa?

Overstaying in India is a criminal offense. The punishment for overstaying is US $30 per day fine and jail for up to 5 years.

Under what circumstances can my employment visa be recalled?

Employment visa granted can be recalled at any time by Ministry of Home Affairs if you are fired by your employer or you are found evading taxes or you are found to be involved in any criminal activity in India.

What to do if my employment visa is lost in India?

Steps to be taken in case you lose your visa:

• Report to nearest Police station and take FIR copy
• Contact the FRRO/FRO where foreigner is registered with the copy of the FIR and do the necessary formalities.
• Contact the Embassy of the foreigner’s Nationality country with FRRO report and do the necessary formalities.
• Report to the concerned employer to which the foreigner is associated with.

What are the tax liabilities of foreigners working in India?

For details regarding tax liabilities please read https://blog.ipleaders.in/foreigners-working-in-india-visa-entry-permit-and-tax-registrations/.

Conclusion

Thus, all rules and regulations related to getting employment visa have been dealt in detail. The procedures related to the application of employment visa, documents required, period of stay, grant of visa to family members of the foreign national getting employed have all been dealt in this article.