Implementation date to be announced soon for new immigration rules

28 May 14

SOUTH AFRICA

IMPACT – HIGH

What is the change? South Africa is expected to announce implementation time frames for its Immigration Regulations that overhaul its visa and work permit regime.

What does the change mean? The regulations will bring enormous change, will cause significant delays and will take several months to transition into full force.

  • Implementation timeframe: Immediate and ongoing.
  • Visas/permits affected: All visas, work permits, and temporary and permanent residence permits.
  • Who is affected: All foreign nationals.
  • Impact on processing times: The transition into the new system will cause delays in processing.
  • Business impact: Businesses may face delays and disruptions of work assignments.
  • Next steps: BAL will alert clients to the implementation time frames as soon as they are announced.

Background: South Africa overhauled its immigration laws and visa regime in new regulations drafted in February. Last week, the Immigration Regulations were published in the Government Gazette. An implementation date and rollout schedule will be announced shortly.

The main changes are:

In-Person Appointments Required

Overseas applications. Foreign nationals (and dependent spouses/children) applying for temporary residence visas from abroad must apply in person at a South African mission in their country of residence or citizenship. If no mission is available there, they may apply at the South African mission designated to receive applications from that particular country.

Extensions of status. In-person appearances and strict deadlines apply to in-country applications to extend status. The filing deadline is no less than 60 days before the current visa expires (for visas issued for less than 30 days, no later than seven working days before the current visa expires). No exceptions will be made for late submissions. Under a new rule, foreign nationals must attest by affidavit that they have complied with the terms of their existing visas and South African laws. This is an important change, as it provides DHA with written evidence to pursue charges against foreign nationals who misrepresent themselves.

Change of status. Foreign nationals holding visitor’s visas or medical treatment visas may not change their status to another visa in-country unless exceptional circumstances exist, namely: emergency medical treatment longer than three months, changing from accompanying spouse of a business-visa holder to a study or work visa, or changing from a medical treatment visa to testify in a criminal trial upon initiation by a public prosecutor.

Section 11(2) Work Authorization

Section 11(2) work authorizations will now be processed by overseas South African missions. Companies must now include a specific list of information: purpose or need for the foreign national’s work, nature of work, qualifications and skills required for the work, duration and place of work, duration of the visit, proof of remuneration by the employer, and identity and contact information of the employer or host organization. The process of obtaining the Section 11(2) work authorization will follow the recently released DHA directive.

Intra-Company Transfer Work Visas

The main changes to the Intra-Company Transfer Work (ICT) Visa are that the foreign transferee must be employed by the overseas company for at least six months, the ICT Visas may be issued for up to four years and are not renewable (previously they were restricted to 24 months), and the employer must develop a plan to transfer skills to a South African citizen or permanent resident.

It is still unclear whether DHA will allow extension of ICT Work Permits issued before the amendments for an additional 48 months or whether the current process of applying for a waiver and a general work visa will continue.

General Work Visas

In a major change, employers must now obtain certification by the South African Department of Labour stating they have fulfilled labor market testing criteria, including a search of the local job market and inability to find suitable candidates. The certificate is a prerequisite to applying for a General Work Visa. Companies should anticipate significant delays and complications in the certification process. In addition, the new regulations have not set out a process for employers to seek review or appeal of a negative decision by the Department of Labour.

Other requirements remain in place, including evaluation of the foreign worker’s qualifications by the South African Qualifications Authority (SAQA), but the foreign worker no longer needs to submit annual proof of continued employment. General Work Visas may be issued for up to five years; renewals are subject to the employment contract.

Critical Skills Work Visas

The Critical Skills Work Visa, similar to the former Quota Work Permit, will depend on the list of critical skills to be published by the DHA. To apply, a foreign worker must demonstrate the critical skills or qualifications. One change is that the professional bodies, councils or boards attesting to the foreign worker’s qualifications must be recognized by SAQA. Previously, this was not necessary. Critical Skills Work Visas may be issued for five-year (renewable) periods.

Visitor’s Visa

Visitor Visas, issued for up to three years, will now allow work pursuant to a contract that partially requires certain activity in South Africa involving the following: teaching at an international school, film and advertising, journalists, visiting professors/lecturers, artists, entertainers, tour leaders, and witnesses in criminal cases.

Permanent Residence

Birth, marriage and police certificates must be apostilled for permanent residence applications, and employment-based applicants must prove they held a work permit for a continuous five-year period.

 

Other general changes:

Employer Bears Cost

All employers must now confirm in writing that they will pay any costs of deportation of foreign nationals and their family members should it become necessary. Employer are also now responsible for ensuring that foreign employees’ passports remain valid at all times.

Passports

All passports must have at least two blank pages and be machine-readable and be valid for at least 30 days after the foreign national’s intended date of departure from South Africa.

Police Clearance Certificates

Foreign nationals must submit police clearance certificates from all countries lived in for at least 12 months since age 18, and this must now be completed before submitting a visa application. For some, this will significantly lengthen the time required for preparing an application.

Change of Address 

All foreign nationals must inform DHA of any address change or other changes to contact details within 14 days or be in violation of the law.

Admission & Departure

  • Foreign nationals must fill out detailed arrival forms and may be refused entry for providing false information, such as stating that they are attending business meetings when they are actually entering to conduct work.
  • Biometric data will be verified upon entry and departure.
  • Parents traveling with minors must have birth certificates upon arrival and departure. If only one parent is traveling with the child, he or she must have written consent by the other parent to enter and leave South Africa. If parents are divorced, a court order is required. If widowed, a death certificate may be required.
  • Same-sex and opposite-sex couples declaring a permanent relationship must meet certain requirements, such as proving the relationship existed for at least two years and being interviewed simultaneously but separately to determine the authenticity of the relationship. The spouses must submit an affidavit two years after a visa or permanent resident permit is issued to confirm that the relationship still exists.

VFS Processing Centers 

VFS Global will open visa and permit centers across nine provinces in June according to the following schedule: Kimberly, Pretoria and Rustenburg on June 2; Bloemfontein, Durban and George on June 9; Johannesburg on June 18; Cape Town on June 20; and Nelspruit, Polokwane and Port Elizabeth on June 23. The centers will accept applications Monday to Friday, 8 a.m. to 4 p.m. and foreign nationals must apply in person to record their biometric information.

BAL Analysis: The Department of Home Affairs will meet with stakeholders in the coming days. At that time, we expect that many of the new procedures and timelines will become clearer. BAL will update clients as soon as this new information is available.

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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