Indian Immigration Compliance: Mobilizing Foreign Business Travelers
August 17, 2015
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By: Manal Galaria
India has numerous categories of visas for foreign nationals visiting the country, and the type of visa which applies is based on the purpose of travel. More often than not, the fine line between a Business and an Employment Visa is unwittingly violated, leading to non-compliance with Indian immigration regulations.
Business Visas
An Indian Business Visa is generally issued to a foreign visitor who intends to travel to India for business purposes. The government has strict rules regarding the activities which can be undertaken during their visit.
Activities which are permissible when traveling on a Business Visa include:
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Attending business or technical meetings and discussions, providing business service support at board meetings or attending exhibitions and trade fairs;
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Visiting staff in Indian entities, observing operations and processes and performing team evaluations;
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Short duration expert or specialist visits to monitor the progress of a project or conduct meetings to provide technical guidance;
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Exploring entrepreneurial possibilities, including the purchasing or selling of industrial products;
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Recruiting manpower, receiving in-house training or undergoing professional development or retraining programs;
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Conducting visits for pre- or post-sales activities without entering into a contract or project;
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Monitoring specific projects without performing hands-on work;
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Lecturing at institutions at higher academic levels or for professional education; and
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Attending in-house training for multi-national companies in the India-based regional hub of the company.
The granting of a Business Visa also outlines a number of prohibited activities. These include:
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Productive employment;
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Participating in remunerative activities including project work, whether at a company’s location or at a client site;
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Training activities such as on-the-job training or any activity involving knowledge transfer or process transition; and
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Internal and external audit activities.
New visa categories related to the Business Visa category
Recent changes in regulations introduced a new visa category which has brought about a small split within the activities permissible on a Business Visa. Foreign nationals visiting India with the sole intention of attending symposiums, international conferences, seminars or workshops are now required to obtain a Conference Visa. However, if a visit will entail both business and conference attendance, a Business Visa alone will be sufficient.
The Indian government has eased the administrative side of Business Visas with the introduction of the visa on arrival program (e-Tourist Visa). This permits business visitors from eligible countries to use this facility for “casual business meetings”. These may include a meet and greet with Indian teams, high level meetings or discussions, attendance at board meetings, general business meetings, client visits and discussions involved in high level contract negotiations. This change is significant as it allows higher numbers of business visitors to travel to India. It also reduces costs and administrative burdens for employers or travelers who would previously have needed to apply for a Business Visa at Indian embassies or consulates abroad prior to travel.
However, despite the broad guidelines laid out by the Indian government, it is still extremely easy to miss the finer aspects of the process and stray into grey areas which may result in being non-compliant with Business Visa regulations.
In short, any activity which generates revenue, contributes directly to an organization’s output, displaces or replaces an Indian national worker, or is performed on a remuneration basis cannot be performed when traveling on a Business Visa. Likewise, any activity which is performed on a project or contractual basis over a lengthy period of time or which involves knowledge transfer or hands-on training resulting in the transition of work to India is equally prohibited.
Employment Visas
Any form of productive work must be performed under the Employment Visa category. These are employer and location specific and the sponsoring entity can either be the Indian subsidiary of the foreign national’s employer or an Indian client of the employer.
The greatest mistake made by employers and Indian sponsors is in assuming that duration of stay determines the category of visa to be sought. If any work-related activities are performed – even for the shortest duration – an Employment Visa must be obtained.
It is well known among employers that the business traveler must not be paid in India for any services performed. Many employers and business travelers tend to steer off course by arguing that the business traveler is being paid in their home country, hence a Business Visa should be sufficient. Here again, if any work-related activities are performed, an Employment Visa must be obtained, irrespective of the fact that the business traveler is being paid in their home country.
Among the many obligations that lie with the Indian visa sponsoring entity, the three most important factors which must be considered prior to sending an employee to India on an Employment Visa are:
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The minimum salary requirement of USD 25,000 per annum;
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The assessment, deduction and remittance of appropriate income tax to the Indian government by the Indian sponsoring entity while the employee is in India; and
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The need for a guaranteed financial undertaking by the Indian sponsoring entity for the duration of the employee’s assignment in India.
Noncompliance implications
Compliance plays a crucial role in choosing a visa category based on the purpose of a visit to India. If misinterpreted, there can be grave consequences for employers and employees alike.
For the employer and Indian sponsoring entity inviting the business traveler these may include:
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Investigation and questioning by the Intelligence Bureau; and
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Prosecution and monetary penalties for mobilizing an unauthorized individual as well as the blacklisting of the company, which may impact the inflow of future foreign employees and business travelers from the same entity.
The consequences of noncompliance for the employee or business traveler may include:
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Imprisonment of up to one year, expulsion from the country and any penalties as deemed fit by the immigration authorities; and
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Penalties as prescribed by Indian law, which may include imprisonment and heavy fines.
