Employer Sponsorship Obligations for Indian Visas
February 28, 2014
By: Shanker Menon
When employing a foreign national in India, companies have many obligations to fulfill to remain compliant with Indian immigration regulations.
To start with, foreign nationals can only enter India on an employment visa, which must be sponsored by a registered Indian company. The sponsoring entity can either be the Indian subsidiary of the foreign national’s employer or an Indian client of the employer. The sponsoring entity has to fulfil certain obligations before they can bring the foreign national to India.
Recent updates have clarified that the Indian sponsoring entity does not become the legal employer of the individuals holding the employment visas unless they are direct or local hires, wherein the sponsor and the employer are one and the same.
As Indian employment visas are employer-specific and location-specific, the sponsoring entity must be a registered company in India with a local presence or client’s office at the location where the foreign national is expected to work. Consular and immigration officials will consider the availability of local talent who can perform the role that the foreign national is proposed to undertake. An employment visa will only be issued if there is no suitable Indian national available. The sponsoring entity may be required to provide a labor market test as part of the employment visa application process to prove the same.
In the event that the Indian company decides to hire a foreign national currently in India, they must ensure that the immigration status of the individual is updated to disclose that the foreign national is now under their sponsorship.
Indian employment visas are issued to highly-skilled specialists, managers and executives or applicants with considerable work experience, and so sponsoring entities have to ensure that they evaluate the foreign national’s credentials prior to the start of the assignment. They must also ensure that these qualifications are maintained throughout the validity of the employment visa. Documentary evidence of the foreign national’s education, skills and experience is more often than not required as part of the visa application.
There is a minimum salary requirement of USD 25,000 per annum and the sponsoring entity must ensure that the applicant meets the same in order for the visa to be approved. Sponsoring entities are responsible for the individual while they are in India including the assessment, deduction and remittance of their appropriate income tax to the Indian government.
Additionally, the sponsoring entity needs to ensure that the foreign national and any accompanying dependents are not a financial burden on the Indian government by providing a declaration, signed by an Indian national, that guarantees the financial undertaking for the duration of the assignment.
The sponsoring entity must issue a contract of employment and provide all the supporting documents for employment visa processing and in-country immigration processes, such as registrations and any visa extensions at the Foreigners Regional Registration Office (FRRO) / Foreigners Registration Office (FRO).
In the unfortunate event of the foreign national’s death in India, the sponsor must ensure that the death is reported to the immigration authorities, all legal obligations in India are upheld, and the remains and possessions of the deceased are sent back to the next of kin in the home country. Accompanying dependents should be repatriated.
The sponsor must ensure good conduct and decorum of all sponsored foreign nationals, including accompanying dependents. If these foreign nationals are found non-compliant, the sponsor must ensure their repatriation.
In the event of termination or resignation, the sponsor’s financial undertaking needs to be discharged by submitting an application at the FRRO / FRO.
In summary, the regulations require that an application for an Indian employment visa is supported by an Indian corporate sponsor, which must issue a contract of employment and provide all the supporting documents for employment visa processing, foreigner registration, and visa extensions.
As the visa is employer and location specific, the visa holder is required to work and live in the same location as the sponsoring entity. This is regulated by the endorsement of the entity's name and the work location on their visa.
The general practice indicates that authorities deem the sponsoring entity to be responsible for the individual while they are in India, including assessment, deduction and remittance of the appropriate income tax and steps to repatriate them as needed.
If the company has no corporate presence in India (an incorporated entity), the host / agent company in India is required to sponsor the employment visa applications and undertake all activities and responsibilities described above.
