Draft regulations toughen permit procedures for foreign workers

7 Mar 14

SOUTH AFRICA

IMPACT – HIGH

What is the change? The South Africa Department of Home Affairs has published the much-anticipated draft Immigration Regulations that further defines proposed amendments under the Immigration Amendment Act of 2011.

What does the change mean? The regulations impose many new requirements and procedures for work permits and stricter penalties for non-compliance, including bars to reentry for visa overstays.

  • Implementation timeframe: The regulations could take effect as early as April 1, but may happen slightly later.  
  • Visas/permits affected: Work visas, visitor visas, Section 11(2) work endorsements, relatives’ visas and others.
  • Who is affected: All foreign nationals.
  • Impact on processing times: It is too early to tell, but there are likely to be lengthy delays in the short run as the government transitions to the new rules.
  • Business impact: These represent significant changes that can add to cost and document preparation time.
  • Next steps: If feasible, companies should apply for work permits immediately, before the new regulations take effect.

Background: In late February, the Department of Home Affairs published the new draft Immigration Regulations. They are open for public comment and could still change before they are implemented. A new procedural step is that employers applying for General Work Visas must obtain a certificate from the Department of Labor stating that the employer meets various criteria of labor market testing. Only after the certificate is issued can the employer apply for the General Work Visa at the Department of Home Affairs. This implies that there is now a labor approval application process (which is yet to be defined) followed by the formal application process with the South African Department of Home Affairs.

Here are the other highlights of the regulations:

I. In-person appearance when submitting applications both in-country and abroad.

A major change is that foreign nationals must apply for a visa in person in South Africa at an overseas South African mission or visa center. This means that foreign nationals living in countries where South Africa does not have a mission may have to travel long distances to find the nearest post to file their visa application.

II. Short-term projects

The Section 11(2) endorsements allowing short-term work on a visitor visa will continue to be available, but the documentary requirements are more stringent and they will not be valid for longer than 90 days. Applicants must submit documents or statements evidencing the purpose and nature of the work, job qualifications, employment period and duration of stay, job location, proof of salary and name and contact information of the employer.

III.  Police clearance

A foreign national visiting for tourism or business for longer than 90 days must provide a Police Clearance certificate from all countries where he or she has lived for 12 months or more since age 18.

IV. Strict extension and renewal deadlines

Foreign nationals applying to change or extend their visa status in-country must do so 30 days before their current visa expires – without exception – and submit their application in person. No incomplete applications will be accepted. If a foreign national fails to file on time, he or she must leave the country and file overseas. Foreign nationals holding visitor visas or medical treatment visas may only change status to another visa while in South Africa, under four “exceptional circumstances,” defined as medical treatment over three months, family members of work/business visa holder changing to a study or work visa, circumstances the Minister of the Department of Home Affairs deems reasonable, and a visitor required to testify as a material witness in a criminal proceeding.

V. Intra-company transfers

Intra-company transfer work visas will have a maximum duration of four years, instead of the current maximum of two years.

VI. Critical skills visa

A new critical skills visa category will replace the Quota and Exceptional Skills Work Permit categories. The list of critical skills categories will be published by the Minister of the Department of Home Affairs in the government gazette. A foreign worker must show proof of accreditation from a professional body registered with the South African Qualifications Authority (SAQA), which will evaluate his or her qualifications. The Department will no longer accept verification of a worker’s qualifications by universities.

VII.  Study visas

Foreign nationals studying in South Africa must obtain a study visa. There will no longer be an exemption for student stays of less than three months. The draft regulations also propose stricter proof of registration with bona fide institutions, would allow only part-time work on a study visa up to 20 hours per week, and would eliminate work authorization to do practical training.

VIII.  Occupations exempted from work visas

Foreign nationals working in certain jobs can obtain a visitor visa valid for up to three years under an employment contract with a foreign employer that partially requires work in South Africa. The regulations list 10 occupations, including teachers at international schools, visiting professors or lecturers, tour leaders, foreign journalists, artists and performers. The list includes a catch-all category for any activities the Director General of the Department of Home Affairs considers a benefit to society.

IX. Entry requirements

Entry requirements will be stricter. Foreign nationals must provide a local address, verify biometric data, and notify the Department of Home Affairs of any changes to their address or host within 48 hours. Parents traveling with children must carry a birth certificate for the children. If only one parent is traveling, he or she must have written permission from the spouse or, if divorced, a court order. These requirements also apply to adults traveling with children not theirs biologically.

X. Overstays

A foreigner who overstays a visa, even once, may be refused reentry for two to ten years, depending on how long he or she overstayed.

BAL Analysis: South Africa is generally taking a tougher stance on work visas for foreign employees, evidenced by stricter documentary requirements, in-person appearances, and stiffer penalties for overstays. In particular, the new police clearance requirements combined with the absolute deadline for submission of a complete application for extensions and renewals makes it imperative for companies to allow sufficient lead time. At the same time, the regulations leave many decisions to the discretion of the immigration minister, who can publish changes or additions to criteria at any time.

This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact your BAL attorney.

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