ESOP for NRI and Non-Resident Employees in Gurugram

Gurugram is where India's unicorn and enterprise-SaaS economy concentrates, the Zomato, Delhivery and Policybazaar tier in the millennium-city cluster, the SaaS and ITES names along DLF Cyber City and Udyog Vihar, and the venture-backed startups off Golf Course Road and Sohna Road. These companies hire globally and almost always carry a US connection: a co-founder who relocated to San Francisco, an enterprise sales lead in New York, a product head on an OCI card. The day equity is promised to any of them, a routine ESOP grant becomes a cross-border foreign investment, and the RBI reporting sits on top of your scheme, your Section 62 steps, and any Section 80-IAC startup planning.

Patron Accounting runs that employer-side workload for Gurugram companies end to end, from the eligibility check through the FEMA structuring, the Form ESOP filing routed via your authorised dealer bank, and the pricing and repatriation set-up. Note the registry quirk: a Cyber City firm does not file with a Gurugram registrar at all, its corporate records go to RoC Delhi, which administers Haryana.

This page speaks to the employer, not the grantee. For the employee's own residency test, perquisite, capital gains and DTAA relief, see our dedicated ESOP tax page for NRIs and non-residents.

It helps to be precise about direction. A Policybazaar-style insurtech in Gurugram granting its own shares to a non-resident hire is doing the inbound leg, an Indian company placing equity abroad, which is the mirror image of a local Udyog Vihar engineer receiving RSUs from a US parent. For a millennium-city SaaS or ITES employer with a US-facing team, three workstreams fire at the same grant.

• FEMA: issuing ESOPs to a person resident outside India is a foreign investment under Schedule I of the FEMA (Non-debt Instruments) Rules, 2019, read with the Mode of Payment and Reporting Regulations, and reported in Form ESOP.
• Companies Act, with a registry twist: the grant follows Section 62 and Rule 12 and the company's scheme, but because Haryana sits under RoC Delhi, the corporate filings go to the Delhi registry rather than a Gurugram one.
• US-side tax: the grantee's eventual tax runs on the India-US DTAA with a foreign tax credit via Form 67, and a DPIIT-recognised startup can defer the perquisite tax under Section 80-IAC.

• The Sohna Road startup angle: for the city's venture-backed, DPIIT-recognised names, the perquisite tax at exercise can be deferred under Section 80-IAC, and the same startups retain some latitude on ESOP pricing, so DPIIT status is the first thing to nail down before fixing a grant price.
• Where the price floor sits, and the 5 percent ceiling: a non-resident cannot be issued below fair value certified by a CA or merchant banker on a method such as DCF; and under general permission a company may issue up to 5 percent of its paid-up capital to non-resident employees, or to staff of an overseas JV or wholly owned subsidiary, directly or through a trust, with extra conditions once that band is crossed.
• How a US-based grantee gets paid out: sale proceeds route through the grantee's NRE or NRO account, the India-US DTAA decides the tax, and Form 67 carries the foreign tax credit; a grantee already non-resident when granted may sit on a repatriation basis, whereas a Cyber City engineer who acquired shares while still resident in Gurugram before relocating usually holds on a non-repatriation basis.

The errors we see most often in Gurugram are not the textbook ones; they cluster around the city's startup status, its Haryana-to-Delhi registry routing, and the heavily US-resident grantee pool.

All fees and charges listed are indicative only and do not constitute a binding offer. Final amounts may vary depending on the volume of work and the complexity involved.

Professional service charges for drafting, filing, and representation are separate from the statutory fees. The exact fee depends on the complexity of the case, disputed amount, and number of hearings required. Contact us for a detailed quote.

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Patron Accounting LLP is a CA and CS firm with 15+ years on FEMA, NDI Rules, RBI reporting and ESOPs for Indian companies with global teams.

With offices in Pune, Mumbai, Delhi and Gurugram, Patron Accounting serves businesses across India, both in-person and remotely.

For a millennium-city SaaS or logistics-tech company, the moving parts split across two regulators and two timelines, the RBI on the FEMA leg and RoC Delhi on the corporate leg. This is the trigger-to-filing map we work to.

For a Gurugram employer the same statutes apply as anywhere in India, with one local consequence: corporate filings land at RoC Delhi, the registry for Haryana, while the FEMA reporting runs to the RBI on a separate track.

Eligibility and registry: the grant is made under Section 62(1)(b) of the Companies Act read with Rule 12 of the Share Capital Rules, under which a non-resident employee or director qualifies subject to the promoter and over-10-percent-director exclusion, with the corporate filings lodged at RoC Delhi because Haryana falls under that registry.

Foreign investment: the issue to a person resident outside India is a foreign investment under Schedule I of the FEMA (Non-debt Instruments) Rules, 2019, read with the FEMA (Mode of Payment and Reporting of Non-Debt Instruments) Regulations, 2019.

Reporting and pricing: Form ESOP is filed within 30 days through the FIRMS portal and the AD bank, with a late submission fee for delay; shares must be priced at not less than fair value certified by a chartered accountant or merchant banker.

Tax and repatriation: for the common US-based grantee the tax position runs on the India-US DTAA with a foreign tax credit claimed via Form 67, a DPIIT-recognised startup can defer the perquisite under Section 80-IAC, and sale proceeds route through the NRE or NRO account depending on whether the shares are held on a repatriation or non-repatriation basis under FEMA.

Authoritative sources: the Reserve Bank of India (NDI Rules, FIRMS, Form ESOP reporting), the RBI FIRMS portal, the Ministry of Corporate Affairs (Section 62, Rule 12), and the FEMA, 1999 and NDI Rules bare text.

The Form ESOP deadline is just 30 days from the grant, and it is the step employers most often miss, building up late submission fees and a FEMA exposure that surfaces in the next audit or fundraise. The fair-value certificate and the repatriation basis also need to be in place at the grant, not retrofitted later. Set the FEMA workflow up before you grant to your NRI team, so the equity is compliant from day one.

Giving your NRI and non-resident employees equity is straightforward in principle, they qualify like any employee, but the moment shares cross to a non-resident, FEMA and RBI reporting apply, with a 30-day Form ESOP deadline, fair-value pricing and repatriation to manage.

Patron Accounting LLP, a CA and CS firm with 15+ years of FEMA and ESOP experience, runs the employer side end to end and coordinates with the tax workstream, so your global team gets its equity cleanly and compliantly.

Start with the national ESOP for NRI and Non Resident Employees service, then explore complementary ESOP services across India.

• ESOP for NRI and Non Resident Employees in India - the national parent service
• ESOP Services Hub - the full ESOP advisory hub - route by stage, scenario or tax
• ESOP Scheme Design - design the option pool, vesting schedule and leaver terms
• ESOP Valuation Services - Rule 11UA fair-market-value reports for grants and exercises
• ESOP Corporate Filings - MGT-14, PAS-3 and Form SH-6 register filings
• ESOP Perquisite Tax (Sec 17(2)(vi)) - perquisite tax and TDS computation at exercise

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