This article - Residential Status – FEMA 2021 would be pertinent for NRIs and would help them in understanding their Residential Status under FEMA 2021. This article is written in FAQ style to address most common questions & issues.
How to determine residential status of a person under FEMA?
ANSWER: "Person resident in India" means—
(i) a person residing in India for more than one hundred and eighty-two days during the course of the preceding FY but does not include—
A. a person who has gone out of India or who stays outside India, in either case—
• for or on taking up employment outside India, or
• for carrying on outside India a business or vocation outside India, or
• for any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
B. a person who has come to or stays in India, in either case, otherwise than—
• for or on taking up employment in India, or
• for carrying on in India a business or vocation in India, or
• for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
a) The residential status of a person leaving India will be determined as under:
If a person leaves India for the purpose of employment, business or for any other purpose that indicates his intention to stay outside India for an uncertain period; then he becomes a person resident outside India from the day he leaves India for such purpose.
b) The residential status of a person returning to India will be determined as under:
If a person comes to India for the purpose of employment, business or for any other purpose that indicates his intention to stay in India for an uncertain period; then he becomes a person resident in India from the day he comes to India for such purpose.
Under FEMA, stay for a period of 182 days is also stated. However, it shall be noted that the residential status of a person in our opinion is primarily determined basis the intention of the person to stay in India.
ii) any person or body corporate registered or incorporated in India,
(iii) an office, branch or agency in India owned or controlled by a person resident outside India,
(iv) an office, branch or agency outside India owned or controlled by a person resident in India.
"Person resident outside India" means a person who is not a resident of India.
Residential status as per FEMA under various scenarios for person leaving India on 1st June 2019:
Residential Status – Person resident in India/ Person resident outside India
Person leaves India for taking up employment or vocation or profession in UK
Person resident outside India from day of leaving for employment.
A person residing in India for more than 182 days during the course of the preceding FY but who leaves India in current year for the employment or business or otherwise with intention to settle outside India
Such a person shall be Person resident outside India from the day he leaves India -need to ignore condition of having stayed in India for more than 182 days.
A person leaves India for US as he received Green Card but has no employment or business but he intends to settle or stay there for an uncertain period
Person resident outside India since he has left India for an uncertain period.
Person has taken US citizenship even though his wife and children are in India. He travels to India to meet his family and is in India for more than 250 days.
Person resident outside India as he has no intention to stay in India for uncertain period.
Person comes to India for family marriage. She fell sick while she was in India and is unable to go back. She stays in India for more than 182 days.
Person resident outside India since she has no employment/business in India; and has employment or business abroad; plus house / office etc.
Person a foreign citizen of non-Indian Origin sets up a proprietary concern in India on 1st June 2019 for carrying on business with intention to settle in India.
Person resident in India w.e.f. 1st June 2019 as he came to India for carrying on business and settle in India.
What is the residential status of students from India going abroad for studies?
ANSWER: It is observed that when students leave India for taking up a course of specified duration, such stay outside India exceeds the period officially intended. While taking up studies, or further advance courses, students may have to take up job or seek scholarship to supplement income to meet their financial requirements abroad. As students have to earn and learn and may even borrow, their stay for educational purposes gets prolonged than what is intended when leaving India.
It is clear that their stay and intention to stay outside India is for an uncertain period when they go abroad for their studies; they are treated as Person resident outside India as per the circular issued by RBI.
Can the residential status of person vary for the same FY as per FEMA and the Act?
ANSWER: Yes. The residential status of a person for a particular FY may vary as per FEMA and Income Tax i.e. a person may be a “resident” person in India as per the Act and a person resident outside India as per FEMA and vice versa.
Who is a PIO?
ANSWER: Person of Indian Origin (PIO) means a person resident outside India who is a citizen of any country other than Bangladesh or Pakistan or such other country as may be specified by the Central Government, satisfying the following conditions:
• Who was a citizen of India by virtue of the Constitution of India or the Citizenship Act, 1955 (57 of 1955); or
• Who belonged to a territory that became part of India after the 15th day of August, 1947; or
• Who is a child or a grandchild or a great grandchild of a citizen of India or of a person referred to in clause (a) or (b); or
• Who is a spouse of foreign origin of a citizen of India or spouse of foreign origin of a person referred to in clause (a) or (b) or (c)
Who is an OCI?
ANSWER: The Constitution of India does not allow holding dual citizenship i.e. Indian citizenship and citizenship of a foreign country simultaneously.
However, after repeated demand from persons of Indian origin for allowing dual citizenship, Government in 02.12.2005 started Overseas Citizen of India scheme. However, it is to be noted OCI is not dual citizenship of India. Registration as an OCI provides the registrant few benefits as specified in FAQ. h below.
However, as per Gazette notification No. 26011/01/2014IC.I published on 09.01.2015 all the existing PIO card holders registered as such under new PIO Card scheme 2002, shall be deemed to be Overseas Citizens of India Cardholder (OCI).
Therefore from 09.01.2015, one can only register as OCI cardholder and existing PIO cardholders may be considered as OCI cardholders.
Who are eligible to be OCI holder?
ANSWER: A foreign national is eligible for registration as OCI holder if one falls under any of the below criteria:
• who was eligible to become a citizen of India on 26.01.1950** or
• was a citizen of India on or at any time after 26.01.1950 or
• belonged to a territory that became part of India after 15.08.1947
• Person of Indian Origin (PIO) card holders are deemed to be OCI
Children and grandchildren including minor children of the above referred persons are also eligible for OCI, provided his/her country of citizenship allows the same in some form or other under local laws, and is eligible for registration as an OCI.
However, if the applicant had ever been a citizen of Pakistan or Bangladesh, he will not be eligible for OCI.
• Spouse of foreign origin of a citizen of India or spouse of foreign origin of an OCI card holder registered and whose marriage has been registered and subsisted for a continuous period of not less than 2 years immediately preceding the presentation of the application.
Provided that for eligibility for registration as OCI, such spouse shall be subjected to prior security clearance from a competent authority in India.
**Any person who, or whose parents or grand-parents were born in India as defined in the Government of India Act, 1935 (as originally enacted), and who was ordinarily residing in any country outside India was eligible to become citizen of India on 26.01.1950. An OCI card holder is eligible to visit India without obtaining a VISA.
What are benefits of becoming an OCI?
ANSWER: Few major benefits of becoming an OCI are as below:-
• A multiple entry/ multi- purpose life-long visa for visiting India
• Exemption from registration with local police for any length of stay in India
• OCI may be granted Indian citizenship after 5 years from date of registration provided he/she stays in India for 1 year before making application
• Employment allowed in all areas except mountaineering, missionary and research work and other work requiring PAP/RAP (PAP-protected area permit, RAP- Restricted area permit)