• We can conclude that as per FEMA the residential status is determined on the intention of the person to stay or leave the country.

• “Person resident outside India” means a person who is not a resident in India;

• An Indian citizen residing outside India is generally known as NRI. NRI status is legally defined under Act and FEMA for applicability of respective laws. However, in some cases there may be variations from general definitions.

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Explanation:

 

• 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.
   

• 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 is primarily determined basis the intention of the person to stay in India.

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Person of Indian Origin

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PIO is not defined by FEMA. However, RBI in its various FEMA notifications has defined PIO.

In general, PIO means a citizen of any country (other than that of specified countries), if:

1. he has at any time held an Indian passport or

2. he or his parents or any of his grandparents were citizens of India by virtue of the Constitution of India or the Citizenship Act, 1955

3. The person is a spouse of an Indian citizen or a person referred to in (1) or (2) above.

 

Further, each FEMA notification has specifically restricted transactions by PIO residing in specified countries. Some of such restrictions are:

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• Restriction on Acquisition or transfer of immovable property: As per the notification pertaining to acquisition or transfer of immovable property in India Citizens of Bangladesh, Pakistan, Sri Lanka, Afghanistan, China, Nepal, Iran, Bhutan, Macau and Hong Kong are not permitted to acquire or transfer immovable property.

• Restriction on establishing a Branch/ Liaison/ Project office: No entity or person, being a citizen of Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran, China, Hong Kong and Macau shall establish in India, a branch / liaison / project office or any other place of business without the prior permission of the RBI.

 

Overseas Citizen of India

 

The Constitution of India does not allow holding dual citizenship i.e. Indian citizenship and citizenship of a foreign country simultaneously.

 

A foreign national is eligible for registration of OCI

• 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 and his children and grandchildren,

provided his country of citizenship allows dual citizenship in some form or other under the local laws, is eligible for registration as an OCI.

 

Minor children of such person are also eligible for OCI. However, if the applicant had ever been a citizen of Pakistan or Bangladesh, he will not be eligible for OCI.

 

**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.