Indian Employment Portability
November 27, 2015
By: Shanker Menon
Foreign nationals traveling to India for employment or temporary work assignments do so on employment visas which are strictly employer and location specific. Generally, an Indian employment visa does not permit free employment.
There may, of course, be situations where a foreign national desires to change employment after arrival in India, but there are only a small number of circumstances in which this is permitted, including:
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A change of employment between a holding company and its subsidiary, or between subsidiaries; and
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A change in the name of the employer by virtue of its amalgamation, merger, de-merger, acquisition, joint venture or legal name.
Change of employment between a holding company and its subsidiary, or between subsidiaries
A change of Indian employer or Indian visa sponsoring entity is generally not permitted during the validity of an employment visa once a foreign national has arrived in the country. An in-country change is permitted only if the change is between a registered holding company and its subsidiary (or vice-versa) or between subsidiaries of a registered holding company.
An in-country change of employer requires the individual to:
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Seek prior permission from the Ministry of Home Affairs (MHA);
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Have fulfilled all other conditions and eligibility requirements to qualify for an employment visa;
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Provide key corporate relationship documents between the old and new entity; and
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Change employment no more than once during the five year term of their employment visa. It is important to note that this does not entitle the foreigner to stay in India for any longer than five years from their original arrival date.
The processing timelines for such applications are quite extensive and range anywhere between four and six weeks and, until approval is granted by the MHA, the applicant cannot commence their new employment.
Change in name of employer
Applications for a change in the name of an employer due to an amalgamation, merger, de-merger, acquisition, joint venture or legal name of the company can be submitted once in India.
The individual can continue to work despite the change in the organization’s name and the application can be submitted at the Foreigners Regional Registration Office (FRRO) or the Foreigners Registration Office (FRO) once all relevant documents are available.
This is typically a one day process at the FRRO and between three and four weeks when filed at the FRO, as these applications are forwarded to the MHA for approval. However, there is the possibility of applications submitted at the FRRO also being referred to the MHA if the documentation provided as proof of corporate relationship between the two companies is incomplete or unclear.
Employment portability and OCIs
In addition to the benefits enjoyed by Overseas Citizenship of India (OCI) card holders, is the ability to freely change employment in India regardless of the relationship between the two companies. Such a change does not require any additional reporting or approval from any immigration authorities.
Change of employment between independent organizations
If a foreign national wishes to transfer to another, unrelated Indian organization, they must exit the country and apply for a fresh employment visa under the sponsorship of the new organization.
Failure to comply
Permission from the MHA is mandatory before changing employers and, if applications are not filed in a timely manner, foreign nationals will be required to exit the country immediately and obtain a new employment visa under the new sponsoring company before resuming work in India.
It is also important to note Indian taxes must be assessed and remitted by the visa sponsoring entity and that prior to a change in this or the tax paying entity, the authorities must be informed and permission granted by the MHA.
Penalties may also be imposed and, as such decisions are highly discretionary, this may pose a significant risk to employers and employees alike. It is advised that the company’s immigration consultants be briefed on any such anticipated changes to avoid non-compliance and associated penalties.
