“Dependent VISA to Independent employment: Government allows conversion”

Introduction

The Ministry of Home Affairs (“MHA”) is responsible for framing guidelines on procedure for issuance of various types of visa for entering India. One of the visas is an entry ‘X’ visa which is granted to the dependent of the foreigner. Earlier, a foreigner who was accompanying his/her spouse to India on an entry ‘X’ visa was not allowed to seek employment or carry business in India. However, recently the MHA has published guidelines as per which the spouse of foreigners on an intra-company transfer is allowed to convert his/her visa from an entry ‘X’ visa to an Employment Visa (“Guidelines”).

This bulletin shall highlight the conditions to be fulfilled for conversion of an entry ‘X’ visa into an employment visa and aims to point out the clarity which the MHA needs to provide regarding the same. Further, it is to be noted that these guidelines are applicable only to those foreigners whose spouse are in India on an intra-company transfer.

1.0 Entry „X‟ visa

Entry ‘X’ visa is granted to (i) a foreigner of Indian origin who wishes to visit relatives in India and/or to come to India for a holiday, (ii) spouse and children of a foreigner of Indian origin, and (iii) spouse or children of a foreign citizen coming to India on a valid visa. The MHA defines a foreigner of Indian origin is any person:

• Who prior to change of citizenship held an Indian passport;
• Who was born in India;
• Whose parents, grand-parents or great grand-parents, were born in and were permanently resident in India. However, the parents, grand-parents or great grand-parents should not have at any time been citizens of Afghanistan, Bangladesh, China, Pakistan, Sri Lanka or any other country that the Indian Government may specify from time to time; or
• Whose spouse is a citizen of India or a person of Indian origin as mentioned above.¹

2.0     The scenario prior to Guidelines

Prior to the release of the Guidelines, the MHA clearly stated in its FAQ relating to entry ‘X’ visa that foreigners holding an entry ‘X’ Visa would not be allowed to engage in any type of business or seek employment in India. In case a foreigner did engage in a business or sought employment on an entry ‘X’ visa in India, he/she could have his/her visa cancelled, be extradited or even be imprisoned for a maximum period of five (5) years.² Further, in case a foreigner on an entry ‘X’ visa desired to gain employment or engage in a business in India,

he had to go back to his home country and make a fresh application for obtaining employment or business visa. This cumbersome and lengthy process often deterred entry ‘X’ visa holders from seeking employment or engaging in any business in India.

3.0       Conditions to be met for conversion

Due to the release of the new Guidelines, foreigners holding entry ‘X’ visa can seek employment in India by getting their respective entry ‘X’ visa converted to an employment visa. However, such conversion is subject to the fulfillment of the following criterias:

1. Foreigners desirous of converting their entry ‘X’ visa must be highly skilled and/or qualified professional;

• Such foreigner is to be offered employment by company/organization/undertaking/ industry in India on a contractual basis;

• There are not many qualified Indians readily available for the job being offered to the foreigner;

• The foreigner is not being offered routine or clerical job; and

• The foreign national is drawing an annual salary in excess of US $ 25,000.

It is to be noted that a foreigner wishing to convert his/her entry ‘X’ visa into an employment visa is not required to show an annual salary of US $ 25,000 in case he is seeking employment as an ethnic cook, a foreign language teacher,³ a translator or he is part of the staff working for the concerned embassy or High Commission in India.

For conversion of an entry ‘X’ visa to employment visa, a foreigner will be required to seek permission from the Foreigners Division of the MHA. The MHA shall decide whether the entry ‘X’ visa is to be converted or not after receiving a report from the Foreigners Regional Registration Office (“FRRO”).

4.0       Duration of visa

The time period for which the visa is granted is for a maximum of five (5) years with multiple entry facility and is determined by the work to be carried out by the foreigner in India. For instance, in case the foreigner is a technician or an expert in his field coming to India on a bilateral agreement or a foreign collaboration between India and his country, then the foreigner can be granted an employment visa either for the duration of such agreement or for a maximum period of five years with multiple entry facility (whichever is less). In case the foreigner is highly skilled personnel in the IT sector, then the employment visa will be either granted for the term of contract or three (3) years with multiple entry facility, whichever is less. In case the foreigner does not fall under the aforementioned categories, then he/she will be granted a visa for either a period of two (2) years or for the term of

assignment, whichever is less with multiple entry facility. Further, regardless of the duration of stay permitted on the employment visa, in case the period of stay exceeds a year, the foreigner will be required to renew his registration with the local FRRO.

It is important to note that an entry ‘X’ visa can be converted only into an employment visa. This means that a foreigner can only seek employment and cannot engage in any type business in India.

Conclusion

The MHA, in its Guidelines, has mentioned that for conversion of entry ‘X’ visa, a foreigner will be required to gain approval of the MHA, which in turn would communicate its decision to the foreigner on receiving the FRRO’s report. In this regard the Guidelines are silent on (i) the contents of the application made to the MHA, (ii) whether the documents to be submitted (if any) are the same as required for obtaining an employment visa, (iii) the contents of the FRRO report and (iv) the time period in which the applicant would be informed of the status of his conversion application. Further, the MHA in its FAQ on Work Related Visas has mentioned that a foreigner who wishes to work as a volunteer with an NGO can apply for an employment visa. However, the MHA Guidelines do not specify whether the foreigner wishing to volunteer with an NGO will be allowed to convert his/her entry ‘X’ visa into an employment visa. Accordingly, the MHA needs to provide clarification regarding the aforementioned.

The release of the Guidelines is definitely a step forward as now the foreigners on entry ‘X’ visa interested in gaining employment in India will not have to return to their country and apply for a fresh visa (employment visa). Instead, such foreigners can exercise the option of getting their entry ‘X’ visa converted to employment visa⁴ in India itself.

Authored by:
Divij Kumar

1 Page 2 of Frequently Asked Questions (“FAQ”) relating to Entry ‘X’ visa
2 Section 14 of the Foreigners Act of 1946
3 English language teachers are not included in this category.