What is an OCI and What are its Perks?
Overseas Citizenship of India (OCI) offers a unique option for eligible foreign citizens, allowing for unlimited travel to, and residence within, India. The OCI program offers a range of benefits over traditional visa options. For example, the OCI holder will benefit from an unlimited duration multiple re-entry visa, reduced residency requirements for Indian residency outside of India, and other reduced requirements compared to traditional visa options. However, the OCI holder is not entitled to vote in Indian elections, and is not subject to Indian taxation for overseas income .
Eligibility for OCI applies to foreign citizens who were formerly Indian nationals, or the children or grandchildren of such former citizens, provided that they do not hold passports of any other country (a dual national with a foreign passport is not eligible for OCI, but may be eligible for a PIO card). While the eligibility criteria is fairly straightforward, the application process for OCI has been known to take some time. There is no requirement for the recipient of the OCI card to appear at the Indian consulate to apply for an OCI or to receive an OCI card: the process can be done entirely online and via post.
Legal Rights of OCI Parents
In terms of legal status, the parents of OCI holders have to abide by the same laws as other foreigners; however, it is important to understand that they are not deemed to be Indian citizens or persons of Indian origin holding OCI cards. Rather, the parents simply hold the same immigration or visa status as any other foreign individual of that type (Tourist, Employment, Long-Term, etc.).
Ex: The status of an OCI holder’s Indian citizen parent will be that of a Tourist visa holder with an Unlimited Duration of Stay.
The OCI regulations indicate that the visas of minor children (under the age of 16) of OCI holders will be co-terminus with the life of the OCI card, which means that they will remain valid for the duration of the validity of the OCI card. However, there is no law of India, or even OCI regulations confirming as to what will happen to such minor children upon the reaching the age of 16 years at which point parents will need to apply for regular visas. The OCI regulations do not state that the minor children are eligible to apply for a regular visa or even qualify for the grant of an OCI card. Since OCI cards are available only to those who are of Indian origin, there is no possibility of applying for an OCI card for minor children under the present law.
As a small note of interest, the OCI regulations do permit applications for the grant of an OCI card to parents of minors, but only in those cases where the minor has been granted citizenship of a country other than India.
OCI Parents under Citizenship Laws of India
The provision of the OCI card for legal parents, essentially defines such legal parents as permanent residents and the term „legal parent" shall apply to any biological or naturalizing parent having full custody of an individual. In addition, specifically in the case of parents from abroad, they must not have been naturalized by any foreign State within the previous 10 years. The section therefore is specifically subject to the residency requirement of the said visa category.
Indian citizenship laws currently state that children of persons who were originally Indian citizens by birth, and who are living outside of India, are eligible for Indian citizenship by registration provided such persons comply with certain conditions. In this regard, it is very important to note that a number of legal provisions are to be strictly adhered to. Where a person voluntarily renounces his or her Indian citizenship of India, that would amount to a permanent loss of Indian citizenship. Such a loss of Indian citizenship cannot be reversed and parental rights of KV can not be enforced unless such parent(s) have resumed Indian citizenship and renounced their citizenship of their new countries.
Visa & Residency Options
There are several visa and residency options available for parents of OCI cardholders. Most of them only allow for the parents’ temporary residency in India.
A person who has lived in India for 182 days or more, either continuously or during several visits, during the preceding financial year is considered to be a resident of India. All parents of OCI cardholders who visit India only occasionally will qualify as non-residents as long as they are not tax residents in India. Such non-resident parents may apply for and obtain Indian visas to visit and reside in India on a short term basis. For example, tourist, medical, and entry visas can be obtained from an Indian Embassy or Consulate abroad.
Parents of OCI card holders may also apply for a visa on the grounds that they wish to accompany their child to India. They may apply for an entry visa as the accompanying parent of a person of Indian origin who is a citizen of another country. Alternatively, parents may apply for a medical visa to accompany a person of Indian origin who is a citizen of another country for medical treatment at a reputed and recognized institute in India. Medical visas are granted for a period of up to one year. The Medical Attendant Visa (M-visa), issued to accompany a medical visa, is issued for the duration of the medical visa plus 30 days.
Parents of OCI card holders may also qualify for an employment visa or a student visa if they wish to become self-sufficient. However, the employment visa may be difficult to obtain since the parents would have to secure a position with a company registered in India. Obtaining the employment visa would also involve serious personal and legal risks since the employment visa is tied to the employment with a single employer. A typical work contract does not generally preclude termination of employment without notice, meaning parents could be terminated without being provided an adequate opportunity to look for alternative employment.
Case Studies for OCI Parents
Ms. K and Mr. P can freely travel to India as the parents of their son, who is a minor OCI Cardholder. Even though they are not OCI Cardholders themselves, they will be treated as OCI Cardholders for the purposes of the PIO/OCI scheme. However, they are required to obtain relevant entry visas when traveling to India.
Ms. S and Mr. C both traveled to India for work. Each had an OCI spouse, but neither had OCI status themselves. Upon arrival in India, each was told that they were not the main OCI Cardholder and therefore were not permitted to rely on the OCI scheme as a basis for entry. They were asked to obtain tourist or business visas. Mr. C entered India on a tourist visa, but Ms. S was asked to leave India on the next flight.
Ms. D is a Chinese national with an OCI spouse. She had previously been staying in India on an employment visa, which expired in December 2017. Ms. D began the process of obtaining an extension, after which she planned to apply for OCI. As part of the extension application, she sought an emergency extension of her employment visa. After receiving her emergency extension, she also lodged her application for OCI. However, Ms. D’s visa expired while her OCI application was being processed, and she remained in India after that time. Ms. D changed her address as required to the immigration office but did not realize that she was also required to seek a new visa . As a result, Immigration authorities in India determined that there was no record of a visa extension having been granted. In 2018, she returned to China with an OCI Visa and entered India on the basis of her OCI status. She is currently undergoing the process for surrender of her Indian employment visa and would like to remain in India as an OCI Cardholder.
Mr. M is a U.S. national who lives and works in India. He is married to an OCI spouse, who was previously an Indian national but has since renounced her Indian citizenship. Mr. M’s OCI spouse is on a spousal visa, which is due to expire in August 2018. Mr. M and his wife applied for OCI in July 2017. However, Mr. M has been unable to continue living and working in India while the OCI application is still pending. He does not want to be in India overstay; and in April 2018, faced with the visa expiry Mr. M traveled to Thailand to apply for a visa. He intends to wait for his OCI application to be processed and return to India as an OCI cardholder in August 2018.
Ms. L is a U.S. national with OCI status. She is married to an Indian national, who is an Indian Permanent Resident Cardholder (PRC) and a well-known professional in India. Ms. L would like to work in India but holds an OCI and not PIO status. She has applied for PIO status but has been waiting for over a year and has received no decision. However, Ms. L’s partner can support her application for an employment visa.
Legal Issues and Considerations
Immigrant parents face significant legal challenges regarding their status and residency. There is an increasing risk that they may become embroiled in U.S. immigration norms at the expense of their children. When children travel, considering their parents’ immigration statuses is essential.
Consider that, while many parents of children born in India or abroad are aware that their children are eligible for OCI status at birth, few realize that they, as parents, can never derive any immigration status through this process. The most common situation occurs when a child born abroad to a U.S. citizen becomes eligible for OCI by virtue of the citizenship of one of his or her parents. But U.S. citizen parents of such foreign-born children are not eligible to accompany their children to India on their OCI status; instead they are obliged to apply for and obtain an Indian visa or other status. Even in the most common situations at birth, 1) where the child is a minor, and either parent is an Indian citizen; or 2) where one parent is an Indian citizen and the other is a foreign national, the adult parent(s) are still not permitted entry into India unless they have their own Indian OCI/PIO status or visa.
The Indian Government has indicated abilities of parents to enter India with OCI children under certain circumstances, if the parents each have Indian origin, such as through birth in India. However, it is not yet clear how this will be applied in practice.
In addition, there is, as a matter of Indian statute law, a requirement that visitors, particularly from foreign countries have a visa issued in their passport before they can utilize an OCI card to enter India. Therefore, although it is not yet clear whether the Indian Government will issue OCI to parents who have Indian origin, even this option will not help in cases where they do not have Indian origin.
Some parents have attempted to use status of other family relatives such as grandparents, but this is also not a path forward, because block E (Spouse of Indian Origin) is also not available to close relatives, like grandparents.
Under Indian law, there is no visa category for grandparents, other close relatives or parents without Indian origin. The only options are a visa or OCI from the parent’s country of nationality, which is, in the case of grandparents, not particularly helpful.
Additional legal challenges may arise during the OCI application process. The process is long and requires the submission of many documents including identity and address proofs, birth certificates, passports, photographs, and marriage certificates. Missing even one of these documents may cause an OCI application to be rejected altogether.
Parents may also be subject to strict restrictions on their length of stay in India. Foreigners must leave within 180 days of entering the country or obtain an exit permit from the Foreigners’ Regional Registration Office. Re-entry in the same calendar year is subject to bureaucratic delays and, in the case of long-term visitors holding visas, conditions such as, requiring a couple of days out of the country.
Legal issues and considerations abound when parents of OCI cardholders are involved. When traveling to India, parents should ensure that they meet all necessary entry requirements including possessing a valid visa or OCI card.
Future Legal Implications
There is also the possibility that parents of OCI cardholder may be granted OCI status in the future. There is no assurance that such expansion of OCI status will eventually happen. We will watch this issue. We recommend that you keep checking back at our site for any updates on this and any other Indian immigration related issues.
There is currently a discussion going on in India to completely do away with PIO card and merge that status with that of OCI card. The pending proposed legislation of the proposed Parent of a Citizen of India Bill, 2013, would create the new visa category of parent of a citizen of India (OCI) and extend such status to sibling of OCI card holder. While this Bill has not yet passed , it is an important development that would aid in resolving some of the inconsistencies that have arisen between the U.S. and Indian laws concerning extraordinary ability green card holders and their parents/relatives.
Much like the PIO facility presently being issued to foreign parents of an OCI cardholder, the proposed Parent of a Citizen of India Bill, 2013 would provide for issuance of a Parent of a Citizen of India visa to foreign parents who are required to accompany their OCI child, to all places in India except restricted and prohibited places as specified by the Indian government. The proposed visa will also be valid for fifteen years from the date of entry in India and multiple entries will be permitted.