Poorvi Chothani

“Globalization,” “the world is flat,” “reverse migration” – these are just some of the words used to describe the increasing movement of business and people across borders. The borders over the Internet are virtually non-existent. U.S. citizens of are accustomed to visa-free travel to most countries and, when necessary, are readily granted short terms visas. However, it is more difficult for an individual to move to another country for work. Business decisions are usually driven by economic opportunities; only later are the hurdles of moving people across borders addressed.

This article will describe some of the critical issues that arise in the cross-border movement of people.   These issues are especially relevant to Indian companies as they continue to establish new ventures or buy existing businesses outside India. We also answer common questions about Indian business and employment visas, with a focus on the increasing, inward flux of foreign nationals, many of whom are either returning to their country of origin or are expatriates eager to participate in India’s economic growth.

Issues in Global Immigration

Immigration laws differ from country to country but most are intended to protect local work forces and national security. In a post 9/11 world, security has been of paramount concern and in a post recessionary world, protecting the local work force is gaining importance. Many countries have special visa arrangements by way of treaties or otherwise, facilitating visa free travel or preferential treatment. For instance, under the North American Free Trade Agreement, citizens of member countries enjoy specific privileges with regard to travel within the region for work or business. Also, under the Visa Waiver Program, many European countries, the U.S., the U.K., Singapore, Japan, Australia, New Zealand, among others, permit visa free pleasure or leisure travel for their citizens for short periods.   Additionally, several European countries have collaborated to issue Schenegen visas to third country nationals, facilitating short visits for business or pleasure.

The visa category required for travel generally depends on the nature of the proposed activity in the foreign country. The duration of stay may sometimes influence the visa category.   It is important that the employer examines the laws of the country that the employee will visit and determine whether a business visa or work permit will be required. Travel for business is routine, especially among personnel of multinational companies. A business visa, which is usually easy to obtain, is suitable for short visits to explore business opportunities and to meet with clients or business associates. Employers often believe that sending individuals in connection with short-term assignments is permitted on a business visa. However, such individuals are often engaged in gainful employment or are involved in activities for which an employment visa is required. Failure to obtain the appropriate visa is a violation of the law and could result in deportation of the individual, detention in some instances, or pecuniary penalties.

Visa Processing Time and Validity

Visa processing time often depends on a combination of the applicant’s nationality and the country she proposes to visit.   The duration of the visa also varies considerably. For instance, the U.S. often grants multiple entry business visas with a validity of 10 years while the immigration officer at the port of entry in the U.S. determines the length of stay on each visit. A business visa for India may be granted for a maximum of five years permitting multiple entries but the duration of stay on each visit is limited to a maximum of six months. However, U.S. nationals could be granted business visas with a validity of 10 years.   In the U.K., applicants may ask for a specific duration, but officers are at liberty to grant a visa for a shorter duration.

Employment visas are generally issued for a minimum statutory period or for the duration of an employment contract, depending on the host country. In-country renewals or extensions may be permitted, but it is important to file timely applications and ensure that the foreign national worker does not fall out of status during the term of the employment.   Also, for most extensions, it will be necessary to show continued employment, and evidence of having complied with local tax and social security contributions among other things.

Visa applications are generally filed at the appropriate consulate of the host country that has jurisdiction over the individual, usually based on the place of her residence.   Consular posts are sometimes restricted from accepting applications from third-country nationals unless these individuals can provide evidence to show that they are lawfully resident in the jurisdiction where they file the application. Additionally, applications from a third-country national could be subject to additional checks or referred to the host country’s consular post in the foreign national’s home country. This could lead to unpredictable and/or extensive delays.

Some countries extend preferential visa privileges to nationals of specific countries. For instance, citizens of the European Union (“E.U.”) get preferential treatment in E.U. member countries. Also, some E.U. countries grant visa privileges to non E.U. countries, including the U.S., which enables nationals of these countries to enter the E.U. country where they wish to work and process the work authorization in country.

India extends privileges to foreign nationals who are persons of Indian origin (PIO’s) or are married to Indians or PIO’s. Meeting staffing requirements in India by employing foreign nationals who could be eligible for Overseas Citizenship of India or registration as PIO’s is advantageous because these categories permit visa-free employment, are not subject to a minimum salary requirement, and are either permanent or have extensive validity periods. Additionally, such individuals have preferential in-country registration requirements or are exempt from registration.

Almost all countries have laws that strictly prohibit the employment of unauthorized foreign nationals. The consequences of employing unauthorized foreign nationals may include fines and/or criminal action for lack of a visa or for missing or inadequate paper work. The company may also face a temporary or permanent ban on employing foreign nationals. In addition, the foreign national may be deported due to a visa or work authorization violation.

Employment Visas

It is important to understand the employment sponsorship requirements of the host country. Countries such as India, Australia, and the U.K. require that a formally incorporated entity or registered sponsor employ the foreign national. Therefore, it may be impossible to post an individual in a country where there is no qualifying entity. In other countries, it is necessary that the business entity in the host country is an affiliate or branch of the foreign entity where the foreign national was employed, often for a stipulated period of time. Informal affiliations with local businesses may not fulfill this requirement. Yet, in other countries such as Canada and the U.S., highly skilled workers could file petitions themselves to obtain independent work authorization.

When identifying employees for international postings, it is necessary to determine that the individual has the required qualifications to obtain an employment visa for the host country. Most countries have basic requirements to ensure that foreign nationals are not going to usurp jobs for which domestic workers are available. It is necessary to justify, at the very least, that the foreign worker is important for the employer, has important skills that are in short supply and/or will be employed at a high level post.

An employment visa is generally granted to render specific services in the host country.   Once the visa has been granted, the employee might be questioned by immigration officers when she arrives at the host country to begin her job. If the employee cannot clearly describe the job duties or what she describes is not consistent with what has been stated in the visa application, then she may be denied entry into the country. Each employee being deployed abroad should be carefully briefed about her visa, the specific laws that apply to her, or her employer and the job, as well as the consequences of a failure to comply with these laws. Even when describing the employee’s job duties in the visa application it is critical to ensure that the description is accurate and consistent with the visa requirements.

Many countries have laws requiring the payment of a minimum salary to foreign national employees.   For instance, no foreign national in India may be paid a salary of less than USD 25,000 per annum. In the U.S., employees on an H-1B visa (temporary workers) have to be paid the prevailing wages depending on the location of the work site, the qualifications of the individual, and her experience. In the U.K., intra-company transferees must be paid a minimum, prescribed salary if the transfer is for 12 months or less. The minimum, prescribed salary is higher if the work is for more than 12 months and/or if applying for an in-country extension. Similarly, under Australia’s 457 visa (temporary work visas), the employer/sponsor must ensure that the terms and conditions of employment provided to 457 visa holders are no less favorable than those provided to Australians to perform equivalent work in the workplace at the same location. If there is an Australian worker in this workplace performing the same duties as the foreign national, then the foreign national has to be paid the same salary as the Australian worker, unless the salary is more than AUD 180,000. Additionally, no foreign national should be paid less than AUD 47,480, nor should she be employed in a job for which the market rate is less than AUD 47,480.

Family Members and Dependents

In most instances a foreign worker is permitted to bring her spouse and children. Few countries extend this privilege to same sex partners, civil union or common law partners, or those in similar relationships. Most countries permit children to live with the working parent as long as they are minors. An important factor to be considered when deploying foreign nationals with families is whether the spouse (or qualified children) can work in the host country. Some countries and/or specific visa categories permit dependents to work. India, however, does not permit this and the spouse and/or qualifying children must obtain independent work visas.

Income Tax and Social Security Benefits

Though income tax and social security benefits are not strictly immigration issues, it is important to consider these issues when an individual is employed in a foreign country.   For instance, this is extremely essential when employing U.S. nationals because they are subject to tax on global income no matter where they are situated. As a result, an individual could be subject to double taxation unless there is a double taxation avoidance agreement between the U.S. and the host country. In most countries other than the U.S., income tax is generally levied on the basis of physical presence of the individual and/or a nexus between the source of income and the country levying the tax.

Immigration Implications of Certain Corporate Actions

As Indian and U.S. companies expand their operations locally and globally they often acquire existing businesses. Other corporate changes that typically have immigration consequences are stock or asset acquisitions, mergers, consolidations, initial public offerings, spin-offs, corporate name changes, changes in payroll source, and the relocation of an employer or its employees. Most corporate actions involve a large pool of employees, some of whom may be foreign nationals in the host country. Business lawyers often overlook the immigration issues relevant to these foreign nationals, resulting in serious consequences.

The consummation of a transaction by a corporation may have significant implications. First, visas or pending applications of employees could potentially be affected by the deal. Second, employers are generally barred from hiring unauthorized employees and are required to maintain documentation demonstrating that each of their employees is legally permitted to work in the particular jurisdiction where they are employed. Finally, companies may also be required to file additional documents to legalize the status of certain employees. Importantly, when acquiring a company in the U.S. one may have to address immigration issues with multiple government agencies, including the U.S. Citizenship and Immigration Services, or the U.S. Immigration & Customs Enforcement, the enforcement bureau of the U.S. Department of Homeland Security. Likewise, similar agencies in the U.K., Canada, Australia, and the E.U. enforce immigration regulations.

Applying for and receiving permanent residence rights in some countries, such as the U.S., may take several years and require a variety of filings with three different government agencies. The effect of corporate action on employees depends on the stage of each individual’s process at the time the transaction closes. The transfer of pending applications to the acquiring company also depends on whether it assumes all of the rights, duties, obligations and assets of the acquired company. Even the simple act of a corporate name change may result in immigration delays and/or compliance issues. The acquiring company and foreign national employees could face different issues depending on whether the transaction is a stock or asset sale or if the business is simply being reorganized.

Before closing a corporate merger or acquisition, or restructuring of a business, one should consider the following:

• Weigh the pros and cons of the acquisition or restructuring from an immigration perspective.
• Examine the potential cost involved in legalizing foreign national employees.
• Examine employment and immigration records to determine the level of existing compliance and the effect of potential compliance requirements.
• Identify all employees that are currently in immigration or visa status that might require additional filings in order to maintain their lawful status or continued employment.
• Check for unlawful immigrant employees.
• The company being acquired should have an authorized representative execute a sworn statement on behalf of the acquiring company expressly acknowledging the assumption of all obligations, liabilities and undertakings arising from or under attestations.

Conclusion

Transnational companies need to carefully assess immigration related issues before deploying personnel abroad, or engaging foreign workers. A similar analysis should be done before any corporate changes to ensure compliance and avoid problems, delays, and inconvenience.

Indian Employment and Business Visas – Frequently Asked Questions

Poorvi Chothani

What visa category should one apply for?

The visa category generally depends on the nature of proposed activity in the foreign country. It can be a business visa for short visits to attend business meetings, explore opportunities, establish businesses, purchase or sell industrial products, or to undergo training, among other things. In most instances, an individual who wants to work or take up employment in India requires an employment visa.

How long does it take to process an Indian visa?

The processing time depends on a combination of the applicant’s nationality and the consular post where she is eligible to file the application.

How long can a foreign national be employed in India?

An employment visa may be granted for an initial period of two years or the duration of the employment contract, whichever is less. It can be extended for one year at a time for a maximum of five years, after which the foreign national must obtain a new visa from her home country. There is no cap on the total duration of employment in India.

Do you need an Indian employer?

Yes, there has to be an Indian entity that will employ and sponsor the foreign national’s Indian visa application. In some instances, if there is no qualified Indian employer, a business affiliate or client may qualify as the sponsoring entity. The sponsoring entity must provide evidence of registration of a company under the Indian Companies Act, 1956, or proof of registration of a firm in the State Industries Department, the Export Promotion Council, or other recognized authority, industrial or trade body.

What qualifications should an individual possess to apply for an Indian employment visa?

The individual should be a highly skilled and/or qualified individual on a higher post, such as technical expert, senior executive, or manager, and should have important skills that are in short supply. Employment visas are not granted to individuals who will be employed in routine, ordinary, secretarial, or clerical jobs in India. The law does not define these terms and visa applications are adjudicated in an ad hoc manner at the discretion of the adjudicating officer.

What activities are permitted on Indian employment visas?

An employment visa is generally granted to render specific services in India.

Is it necessary to pay foreign nationals a mandatory salary?

In India, with limited exceptions, foreign nationals have to be paid a basic salary of more than USD 25,000. Payments made by way of perquisites to the foreign national cannot be included when computing the basic salary.

What benefits can be availed by family member and/or dependants of the applicant while on a dependant visa?

The spouse and children of a foreign national, who has been granted an employment visa, are generally granted co-terminus “X” or dependent visas. Dependents cannot take up employment in India on a “X” visa. If they wish to work, then they need independent employment visas.

Are foreign nationals working in India subject to Income Tax and Social Security payments?

All income earned by the foreign national while she works in India is taxable in India and the employer is subject to a withholding requirement. In some instances, the foreign national is deployed to India but continues to remain on the payroll of a foreign company. The Indian employer or sponsoring entity is responsible for compliance with the foreign national’s tax liabilities in India. In addition all residents in India are taxed on their worldwide income.

Additionally, employers and employees are required to contribute 12% of the salary to the local Public Provident Fund, with the employer withholding the employee’s contribution from her salary. In most instances, foreign nationals cannot benefit from these contributions unless there is an applicable totalization or Social Security agreement between India and the foreign national’s home country, granting credit to the foreign national for such contributions in her home country.

Under what circumstances are visa extensions or renewals granted?

In cases where business visas have been granted for a period of less than five years the visa may be extended for an additional period provided the gross revenue from the business activity (for which the visa was initially issued) is not less than INR 1 crore (approximately USD 220,000) per year. This revenue has to be achieved within two years of establishing the business. The first extension in such cases must be obtained from the Ministry of Home Affairs. The Foreigner’s Regional Registration Offices or the Foreigner Registration Offices may grant subsequent one-year extensions for a period that does not exceed five years from the date of first issue of the business visa.

An employment visa extension is granted where the application is timely filed and the Indian entity ensures that the foreign national worker is not out of status during the term of the employment.   Also, for most extensions, it is necessary to provide evidence of compliance with local tax and social security contributions among other things. Extensions of employment visas are granted for one year at a time, permitting the foreign national to live and work in India for a maximum period of five years from the date of first issue of the visa. After five years, the foreign national must leave the country and apply for a new visa in the country of her nationality.

Can third country nationals apply for Indian visas at a particular consular post?

An Indian visa is generally issued from the country of origin or from the country of habitual domicile, provided the period of residence in the latter is two or more years from the date of visa application. If the applicant has been a resident in a particular country for less than two years, her application will be decided at the discretion of the consular officer. The Indian consular post in the applicant’s home country is informed after the visa has been issued.

 

 

Poorvi Chothani is a founder and managing member of LawQuest, a law firm in Mumbai, India, and a Vice Chair of the India Committee. She is admitted to the New York State Bar with an LL.M from the University of Pennsylvania, and is registered as a Solicitor in England and Wales. Poorvi has been practicing law in India since 1984 and is admitted to the Bar Council of Maharashtra and Goa. She can be reached at info@lawquestinternational.com.