India needs to frame a cogent policy on key business immigration issues and relocation of foreign personnel in India, in the light of rapidly changing market conditions. Ranjeet Malhotra explores…
Immigration law in India is a neglected area of law. The present immigration requirements are certainly not conducive to the substantial foreign direct investment that is presently taking place in India. The Government of India (the Government) has taken great care in suitably updating, modifying and introducing rules and regulations with regard to foreign equity investment into India, while the business immigration provisions have been completely ignored. As in the European Union, safeguarding freedom of movement for goods and capital is one thing, facilitating the free movement of business personnel is another? The Government should introduce a work permit regime for foreign nationals who want to set up businesses in India and run offices on behalf of multinationals.
All global giants now have a presence in India. They are tapping the cheap labour market. Sadly enough, their entry is unrestricted and without a price tag. More importantly, the fees for processing work permit applications could be a good source of revenue to the exchequer.
India has clearly remained an attractive destination for foreign investors. In the last decade, it had become very common for senior and middle level executives, employees and managers of foreign companies like consulting companies, banks, foreign multinationals and computing companies from overseas to send their employees for exploring the market conditions in India, with a view to potentially starting business operations in India.
However, what actually was happening in practice was that these so called business persons would come to India, and after looking at the favourable economic climate, commence full fledged business operations on the strength of their business visas. This is an outright breach of the immigration laws. This device was to obviate the necessity for the foreign employee to go back to his country of habitual residence, and to apply afresh for the employment visa. Such a practice also leads to tax evasion. As this practice developed and thrived, such foreign personnel on Indian soil would subsequently have their business visas converted into employment visas.
Of course, this shortcut avenue did entail its share of bureaucratic hurdles in so far, as it relates to the variation of leave. The Government could well come out with a policy allowing specified number of in-country processing of applications in a regulated and a controlled manner, of course for fast track processing, commensurate visa fees or premium fees should be charged. Dollar pricing could well be the benchmark, simply to be in tune with international visa processing fees of major jurisdictions.
Instead of formulating a clear cut policy for foreign workers on the basis of a government recommended shortage occupation list, the practice of granting business visas, on a knee jerk reaction on behalf of the Government, was extended to the level of workers of foreign origin, for infrastructure projects in power, telecom, oil and gas sectors. It is common knowledge that there has been a huge rise in the number of Chinese workers entering India on business visas to execute a range of specialised infrastructure projects. Generally, business visa holders are high end premium
applicants, but here one is confronted with a converse situation. If India had a work permit regime in place or some sort of tier system for engagement of foreign employees of different levels, certainly this faulty adhoc arrangement would not have occurred.
The Government, through a series of circulars in August and September, modified rules making it compulsory for those entering the country on 180 days business visas to have these converted into employment visas, if they have to work in India.
As of now, hundreds of troubled senior and mid-level managers of a large number of multinational companies are scrambling to comply with the new requirement and get their business visas converted to work visas, while industry bodies take up their cause with the Government.
A E Ahmed Secretary, Border Management, Ministry of Home Affairs
We have a very healthy visa regime, which caters to the entry of people in India, depending on the purpose including professionals and skilled work force, business persons, students and foreign tourists. One of the categories is of Business Visa (BV).We have a designed structure for visa to give those people, who want to come to India for a legitimate business purpose. As per the system, one normally gets a BV for a maximum period of five years. However, its time-span depends on the purpose. Steps have been taken to strengthen existing institutional mechanism and infrastructure to regulate or control cross-border movement, which inter-alia involves modernisation of 33 Immigration Check Posts (ICPs), installations of modern gadgets (passport reading machines, questionable document examiner machines and computer systems). This has resulted in faster immigration clearance in terms of International Civil Aviation Organisation (ICAO) norms and better security screening of the passengers.
Business visa is granted for establishing or to explore possibilities to set up industrial or business venture and to explore, purchase or sell industrial products in India. Setting up of industrial or business venture is a natural outcome of exploring the market. Carrying on full-fledged legitimate business is not a worry for the Government as long as law of the land is followed and taxes are paid.
The following documents are to be submitted along with the applications:
Our policy is to facilitate orderly migration. India has a robust visa regime in place to enable lawful inward movement of persons
Two-road projects in Himachal Pradesh, funded by the World Bank and being executed by a Chinese company, came to a standstill when 150 of their engineers and officials had to leave India in the month of September on account of visa problems. While 3000 Chinese professionals working on power projects in India on the strength of their business visas were repatriated in the month of September, 2009. For these expatriate workers, government had set a deadline till October 31, 2009 to leave the country and re-apply for work visas from their country of origin.
The change in rule was aimed mainly at about 25,000 low-skilled Chinese, working in India. This is the real opportunity for the Ministry of Home Affairs to come out with some sort of a clear cut directive on the employment of low level foreign workers for on going infrastructure projects in India. However, there should be a caveat to the number of foreign workers to let in the country. The quota regime should be strictly implemented, which can be reviewed on a rolling basis from time to time. This will protect the interest of domestic workers, and the return of skilled workers from places like Dubai, which are hit hard by the recession.
Foreign lawyers, who are handling infrastructure and transactional work, are making vigorous efforts to break into the Indian legal market. This arena also needs deliberation in so far, as it relates to immigration requirements.
including professionals and skilled work force, business persons, students and foreign tourists.
Curbing illegal migration is also a priority like all other countries, since it has serious security, economic and societal ramifications. Existing institutional and legal mechanisms, strengthening of infrastructure to regulate or control cross-border movement, and bilateral or multi-lateral consultations are sought to address the challenge of illegal cross-border movements.
Modernisation and up-gradation of immigration services is identified and included as one of the MMPs to be undertaken by the Ministry of Home Affairs (MHA), under the National e-Governance Plan (NeGP). The Mission Mode Project (MMP) is titled as ‘Immigration, Visa and Foreign Registration and Tracking (IVFRT)’. The core objective of this project is to develop and implement a secure and integrated service delivery framework that facilitates legitimate travellers while strengthening security.
Depending upon the visa stipulations, the foreigner is required to get registered with the concerned Foreigner Regional Registration Office (FRRO) or Foreigner Registration Office (FRO) in whose jurisdiction he is intending to stay. The submission of application for registration is followed by an interview with registration officials, wherein various mandated documents like address proof, employment letter and reference letter are verified before registration and grant of resident permit to the applicant.
Whenever a foreigner intends to stay beyond the validity of his visa, he is required to apply for extension of his visa period to the concerned FRRO, state government, FRO or MHA, New Delhi. Whenever a foreigner is found to be in possession of an invalid travel document, to adverse notice or overstays beyond the validity of visa, necessary enquiries are conducted by the law enforcement agencies. On completion of the inquiry and its consequent findings, the foreigner is either deported or granted exit as per the provision of section 3 (2) (c) of the Foreigners Act, 1946 or action is taken to book him under section 14 of the Foreigners Act, 1946.
The system of registration of foreigners coming on long term visa helps in tracking and taking requisite action in case of detection of overstays, illegal activities, reaching out to foreigners in case of distress. This system of FRT needs to be further strengthened. Improved tracking of foreigners by integrating and sharing information captured during visa issuance at missions, during immigration check at ICPs and at FRRO or FROs is one of the components of MMP.
No, we do not. First, there is a document-based granting of visa. The applicant has to furnish the invitation letters and basic documentation. As far as certain countries are concerned, which we feel are a security threat to India, they are prior-reference countries and do not get visas directly. Let us say, you are a citizen of country ‘X’ and your origin is of country ‘Y’. Suppose country ‘Y’ is a possible security threat to India, then no matter which country’s citizen you are; you will have to get a proper verification done.
The lacuna is that we are dependent on manual systems to a large degree that are vulnerable to human errors. We are not extremely technology-savvy. From the time that a person applies for a visa till the time he lands in India; he goes through the immigration, the time he spends in India and the time he exits our country, there are areas of vulnerability. We do not have a bio-metric system of supporting databases and connectivity between the various operating departments. In the light of this, one huge initiative that we are starting under the National E-Governance Initiative, a project on immigration, visa registration and tracking. The Ministry of External Affairs is doing a similar initiative in E-Passports.
The contours of Indian immigration policy need to adapt fast to the present day situation. Biometrics and electronic border controls is the need of the hour. It is indeed a major exercise, both in terms of time and expense. However, it is not even on our road map for the future. In this way, anybody with a multiple or a dubious identity should not be granted a visa.
In a nutshell, keeping in view the present economic scenario, a consolidated centrally regulated work permit regime in India is the need of the hour. Provisions need to be made forthwith also for biometrics and electronic visas, fast track processing of visas for blue chip workers, corporate personnel and health tourism, besides taking measures to cope with the trends of reverse migration at all levels. And of course, all these should come with a proper price tag rather than focusing on bulky and scattered confusing paper work requirements, in the absence of a clear cut business immigration policy without a steer.
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