Diwan Advocates

Immigration Law Practice

A senior executive from a German company is being posted to India for three years to head the India operations. She will need a business visa converted to an employment visa, a Foreigner Regional Registration Office registration within 14 days of arrival, her dependants will need dependent visas, and her employer will need to ensure its HR compliance obligations under the immigration framework are met. If any step is missed or delayed, she faces overstay violations that affect both her and her employer.

An Indian-origin professional settled in the United Kingdom for 22 years wants to return to India permanently. He holds an OCI card. He wants to buy property, open business bank accounts, and invest in Indian companies. His OCI status gives him certain rights but not others. His FEMA classification as an NRI versus a person resident in India will change once he returns. His income tax residential status will shift after the first year. Getting these transitions right requires understanding immigration, FEMA, and tax law together.

Immigration law in India governs who can enter, how long they can stay, what they can do while here, and the consequences of non-compliance. It also governs Indian citizens' rights to passports, OCI status, and the legal consequences of prolonged foreign residence. At Diwan Advocates, we advise foreign nationals, their employers, NRIs, and OCI holders on the full range of immigration and citizenship matters.

Visas and Entry into India

Entry into India is governed by the Foreigners Act, 1946 and the visa conditions prescribed by the Ministry of Home Affairs. The principal visa categories relevant to work and business are the Employment Visa for foreign nationals employed by Indian companies, the Business Visa for persons visiting for business meetings and transactions without taking up employment, the Project Visa for specific construction and infrastructure projects, and the Intern Visa for foreign nationals undertaking internships. Each category has specific conditions on the nature of work permitted and the documentation required.

Employment Visa

An Employment Visa is issued to a foreign national who is being employed and paid by an Indian entity or by a foreign company for work to be performed in India. The applicant must be a specialist or skilled professional in their field. The minimum salary threshold for an Employment Visa is prescribed by the Ministry of Home Affairs and is reviewed periodically. The visa is typically granted for an initial period of one year and can be extended at the Foreigners Regional Registration Office. Holders must register with the FRRO within 14 days of arrival if their stay is expected to exceed 180 days.

Business Visa

A Business Visa permits the holder to visit India for business activities that do not constitute employment: attending meetings, exploring investment opportunities, participating in trade fairs, and similar activities. A Business Visa holder cannot draw a salary from an Indian source. Persons on Business Visas who are found to be performing activities that require an Employment Visa face cancellation of their visa and potential deportation.

Visa Extensions and Conversions

Extensions of employment and business visas, and conversions from one visa category to another, are processed by the Foreigners Division of the Ministry of Home Affairs or by the FRRO depending on the category. Extensions are not automatic and must be applied for before the existing visa expires. We manage extension and conversion applications for corporate clients and individual applicants and advise on the documentation required to avoid rejections and delays.

FRRO Registration and Compliance

Foreign nationals who are issued a visa for a stay exceeding 180 days must register with the Foreigners Regional Registration Office within 14 days of arrival under the Registration of Foreigners Act, 1939. Registration involves filing a form with supporting documents and obtaining a Residential Permit. The RP specifies the permitted period of stay, the permitted activities, and any other conditions. Changes of address, employer, or marital status must be reported to the FRRO within prescribed timelines. Failure to register or to report changes is a violation of visa conditions and can result in penalties and visa cancellation.

OCI and Citizenship

Overseas Citizenship of India is governed by the Citizenship Act, 1955. OCI is not full citizenship but a lifelong visa with multiple entry rights and parity with Non-Resident Indians on most economic, financial, and educational matters. OCI holders cannot vote, hold constitutional office, or purchase agricultural land. OCI is available to persons of Indian origin who are citizens of a country that allows dual citizenship, and to their spouses and minor children.

OCI Applications and Renunciation

OCI applications are made through the Indian diplomatic mission in the applicant's country of residence. The process requires documentation of Indian origin, current foreign citizenship, and a clean criminal record. We advise on OCI applications, on the situations in which OCI status can be cancelled, and on the process for renouncing OCI if a holder wishes to apply for Indian citizenship. An OCI holder who acquires Indian citizenship is required to surrender their OCI card.

Indian Citizenship: Acquisition and Loss

Indian citizenship can be acquired by birth, descent, registration, or naturalisation under the Citizenship Act. Citizenship is lost by renunciation, termination, or deprivation. A person who voluntarily acquires the citizenship of another country automatically loses Indian citizenship. The rules around citizenship for persons born to Indian parents abroad, and for persons who have spent extended periods outside India, are complex and fact-specific. We advise on citizenship status and on the documentation needed to establish or demonstrate Indian citizenship.

Detention, Deportation, and Enforcement

When immigration authorities detain a foreign national for visa violations, overstay, or suspected illegal entry, immediate legal action is required. A habeas corpus petition before the High Court is the primary remedy for a person in unlawful detention. The petition must be filed quickly and must establish that the detention is not in accordance with the procedure established by law. We file habeas corpus petitions in immigration detention cases and appear at urgent hearings before the High Courts.

Deportation orders can be challenged before the appropriate authority and, where the order is unlawful or disproportionate, before the High Court. Persons who have lived in India for extended periods, have family ties in India, or whose country of origin poses a risk to their safety if they are returned can argue against deportation on those grounds. We advise on the available grounds of challenge and pursue them urgently given the timelines involved.

NRI Legal Status and FEMA Classification

An Indian citizen who has been residing outside India for a period exceeding 182 days in the preceding financial year is classified as a Non-Resident Indian for income tax purposes and as a person resident outside India under FEMA, 1999. This classification determines their rights to hold foreign currency accounts, invest in Indian securities, purchase property in India, and repatriate income from Indian sources. When an NRI returns to India permanently, their FEMA status changes after the return and their income tax residency changes after meeting the prescribed number of days. The transition period requires careful management of bank accounts, investments, and ongoing FEMA compliance.

Why Diwan Advocates for Immigration Law?

Legislative Reference Index

Immigration compliance is not optional and the consequences of getting it wrong affect both the individual and their employer.

Diwan Advocates manages these matters so our clients can focus on why they are in India.

We handle the paperwork. They handle the business.

Diwan Advocates  |  Delhi, India