Expatriates should beware of strict employment requirements

By Gautam Khurana and Promila Dhar, India Law Offices

When non-Indian citizens are employed in India, they become as responsible for obtaining employment visas and complying with immigration laws as the companies that are sponsoring them and offering employment. The immigration process is divided into three parts, pre-immigration, the duration of stay in India and departure. The last part, however, arises only in the case of the delays and exceptional circumstances that have become common due to covid-induced lockdowns and the blocking of international travel.

Gautam Khurana, Managing partner, India Law Offices
Gautam Khurana
Managing partner
India Law Offices

To qualify for an employment visa pre-immigration, the first condition an expatriate has to meet is that their remuneration should be more than USD25,000. Further, the person should be highly skilled and qualified in a manner that justifies their need to be in India. The would-be employee should apply for an employment visa of more than six months only once they have a clearly drafted, duly executed employment agreement setting out their remuneration of above USD25,000, a clear statement of their roles and responsibilities and the location of the employment. As the visa, if granted, specifies the employer and place of employment, the role, location and employer should be clearly agreed prior to making the employment visa application.

In the case of an NGO, the rules are more flexible. No condition for a minimum salary is applied, as even voluntary, unpaid work is permitted. However, the validity of the visa is initially for one year only. It is mandatory for expatriates associated with NGOs to report to the Foreigners Regional Registration Officer (FRRO) within 14 days of arrival.

Once an employment visa has been granted, the expatriate can immediately travel to India to take up the assignment. If the duration of employment is to be fewer than 180 days, the expatriate may commence work without taking any further steps. However, if the period of employment is to be more than 180 days, it is the responsibility of the employee and the employer company to register with the FRRO. An online appointment with the FRRO must be made after a residential address is established and the employee is sure that they may live at that address for a substantial part of their stay.

Promila Dhar, Partner, India Law Offices
Promila Dhar
India Law Offices

Often, documents that have not been scrutinised closely at the consulate are scanned meticulously by the FRRO. It is therefore prudent to seek professional advice when applying for an employment visa and when registering with the FRRO. It is common for the FFRO to seek clarification of matters in the application, or to request additional documents. An applicant can easily resolve such enquiries by submitting additional information online.

If the expatriate anticipates staying more than 180 days during a financial year in India that runs from April to March, they must register for income tax, as payment of such tax is mandatory. It is essential to obtain a permanent account number (PAN) as early as possible, as the employee will be subject to Indian taxation and required to pay taxes. The employer company is responsible for withholding taxes from the expatriate’s salary and a tax return has to be filed before 31 July of each year where the financial year ends on 31 March during the expatriate’s stay in India.

In the past, leaving India has not been a problem for expatriates. However, with the pandemic affecting the country since March 2020, there have been many instances where employment visas, FRRO approvals and even passports have expired. This has created a lot of trouble for expatriates. As a general measure, visas for expatriates were extended during both lockdowns, but there were cases where the invalidity of passports or deficient paperwork initially submitted to the FRRO caused delays to applications to exit the country.

It is therefore advisable that while pandemic conditions exist and uncertainty over foreign travel prevails, expatriates travelling to India should ensure that their passports are valid for at least a year instead of the usual six months when obtaining an employment visa. They should ensure that they extend their employment visas in good time instead of waiting until the last month of validity. Lastly, they should check that their FRRO registration process is error-free and that any deficiencies pointed out by the officer are rectified promptly after taking professional advice.

Gautam Khurana is the managing partner and Promila Dhar is a partner at India Law Offices

 India Law Offices Gautam Khurana Managing PartnerIndia Law Offices
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New Delhi – 110 049

Mumbai | Bengaluru
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Tel: +91 11 2462 2216 / +91 11 246 2218
Email: g.khurana@indialawoffices.com