The employee must have worked in the Indian business on a full time basis for a continuos period of at least one year during the preceding three years. The definition of employee is quite complex and each case must be analysed on its own merit. The determining factor is degree of control over the employee’s activities rather than payment of salary.
 

The U.S. company and the Indian company must be related in a specific manner.
The law states that the company abroad must be the same employer of a subsidiary or affiliate of the U.S. company. The meanings of these terms can be very complex and each case must analysed carefully before a determination can be made. Generally, one company must have control of the other company or both companies must be controlled by the same third company, individual, or group of individual shareholders. The following are examples of acceptable configurations:

• Both the U.S company and the company abroad are branch offices of the same corporation.
• The U.S company owns more than 50% of the company abroad are majority-owned more than 50% of the U.S Company.
• Both the U.S company and the company abroad are majority-owned (more than 50%) by the third company, or the same individual or same group of individuals.
• The U.S company is a joint venture (50% owned by each of two companies) or the U.S company is one of the joint ventures ( 50% owner) of the foreign company from which the transferee will come.

The employee to be transferred must have been employed abroad in an " executive" or managerial" position or a position involving " specialised knowledge"

The terms "executive", managerial and " specialised knowledge" have complex meanings and need proper attention.
 

• An executive is one whose primary duties are to direct the management, a major component, or a function of the organisation. He establishes organisational goals and policies. He exercises a wide latitude of discretionary decision-making. He receives only general supervision or direction from higher level executives, the board of directors, or shareholders of the company. He must supervise the work of other persons or he must supervise a function.
• A manager is one whose primary duties are to direct the organisation, a customarily recognised department, or subdivision of the organisation or function. He controls the work of other professional, supervisory or managerial employees (unless he manages a function). He exercises discretionary authority over day to day operations.

Staffing levels are taken into account, and will be considered in relation to the reasonable needs of the business and its stage of development.

The employee must be coming to the U.S Company to fill an executive, managerial or specialised knowledge capacity.
The employee need not fill the same capacity in the U.S that he filled abroad.

The employee must be qualified for the position by virtue of his prior education or experience.

The employer must have the financial ability to pay an executive or manager and other workers who will perform the tasks necessary t produce the product to provide the services of the company.