MUMBAI: This is one case MNCs and thousands of expatriates working in India will be following closely in the coming weeks since it now appears that no foreign worker can get an Indian employment visa unless the annual salary is above Rs 11 lakh.
A Ukraine citizen has approached the Bombay High Court against the ministry of external affairs, challenging a policy that mandates a minimum annual salary of USD 25,000 (over Rs 11 lakh) as compulsory requirement for getting an employment visa.
The rule is not well-known or publised and many companies nationwide employ foreigners legally at much lower salaries.
The woman, 25-year-old Stelmakh Leonid Lulia, was refused visa by the Indian embassy in Kiev, Ukraine, after she got a job offer from J P Morgan as an analyst. Her salary package was negotiated at Rs 5.90 lakh per annum excluding other perquisites and bonus. The petitioner says that the job offer will lapse if she does not report to work in a week’s time.
The matter is expected to come up on Friday before a division bench of Chief Justice Mohit Shah and Justice S C Dharmadhikari for urgent relief. The petitioner has pleaded she has to come to India and will lose her employment. Her counsel Prashant Uchil told TOI, "This is a sensitive constitutional matter on foreigners’ right to employment and will have wide ramifications on foreign employees in the Indian services industry."
The petitioner completed her master’s degree in the US in 2010 and has been to India before on tourist visas, claiming she never overstayed or violated any visa requirements. According to her, the employment was obtained when this new rule did not exist and "since no prior notice of change of rule was notified, the petitioner in all good faith having applied for and granted employment, legitimately expects the respondent to issue visa…."
During the period preceeding April 2010, the ministry – through the embassy at Kyiv – issued employment visas without any pecuniary limit for salary earned in India. "After several rounds of inter-alia telephonic and email interviews, she was chosen for employment with M/s J P Morgan Services India Pvt Ltd for the position of an analyst because of her special domain knowledge and education," said the petition.
She then made an application to the Indian embassy in Kiev on June 3 for anemployment visa along with all supporting documents of her employer. "Petitioner submits that she was curtly told by the counsul officer at the embassy that she would not be granted employment visa as the rule has been introduced from April 2010 mandating a salary in India equivalent to USD 25,000 per annum for issuance of an employment visa," it said.
According to her, the embassy website does not carry the new rule. "It is for the embassy to give adequate notice of such drastic change so that applicants of such visas as also employers may plan accordingly," she said.
The petition has also said this `unreasonable’ classification of people earning less than USD 25,000 and more than USD 25,000 is "violation of Article 14 of the Indian Constitution, which applies to foreigners also". It has also asked the court to decide whether the denial of employment visa by the respondent is illegal and went against the tenets of international law governing free movement and work opportunities.
"The petitioner submits that in the circumstances stated here and in the interest of justice there is need of the mandatory directions, orders of this court directing the respondents to issue employment visa and quash and set aside the said rule," it said.