New law changes Section 11(2) work authorization process

20 May 14

SOUTH AFRICA

IMPACT – HIGH

What is the change? The Department of Home Affairs has issued a directive that significantly changes the process for foreign nationals seeking Section 11(2) work authorization.

What does the change mean? Visa-exempt foreign nationals must now a obtain a pre-approval letter for their Section 11(2) work authorization from the appropriate South African mission overseas, rather than applying electronically with the Department of Home Affairs (DHA). Visa-required foreign nationals must apply for a Section 11(2) at a South African mission (rather than DHA) at the same time that they apply for a visa.

  • Implementation timeframe: Immediate.
  • Visas/permits affected: Visitor’s visas; Section 11(2) work authorization.
  • Who is affected: Foreign nationals applying for work authorization under Section 11(2).
  • Impact on processing times: For foreign nationals who do not require a visitor’s visa, there are likely to be lengthy delays as the overseas missions implement this new procedure. Foreign nationals who require a visitor’s visa may see improved processing times because they will now apply for their visas and Section 11(2) work authorization in tandem rather than wait for pre-approval from DHA before applying for a visa.
  • Business impact: The change in procedures maydelay assignments in South Africa while the new system is rolled out.
  • Next steps: Employers should plan well in advance and begin applying for Section 11(2) work authorization as soon as possible, as these new procedures will take time to sort out at each South African mission around the world.

Background: On May 13, without notice, the Department of Home Affairs released an immigration directive changing the Section 11(2) work authorization process. Section 11(2) is a popular route that provides work authorization to foreign nationals on visitor’s permits. South Africa recently overhauled its immigration laws in amendments that could take effect as early as June 1, but in all likelihood may require additional time to implement fully.

The May 13 directive orders South African consular missions to assume the process of issuing Section 11(2) work authorization letters. Under the former system, visa-exempt foreign nationals applied for these letters electronically via the Department of Home Affairs and presented them upon arrival. Under the new process, visa-exempt foreign nationals will now submit their Section 11(2) work authorization requests to the appropriate South African consular post in their home country and then present the Section 11(2) letter upon arrival.

Previously, many visa-required nationals needed to obtain pre-approval letters from DHA for the Section 11(2) work authorization before applying for their visitor’s visas. For nationals of India, for example, this often added 5-10 days to the process. With the new directive, a foreign national who requires a visitor’s visa to enter South Africa will apply at an overseas mission for the visa at the same time as requesting Section 11(2) work authorization, which will streamline the process.

Unfortunately, the Department of Home Affairs’ directive is ambiguous with regard to issuing Section 11(2) work authorization letters to visa-exempt nationals. In the past, such letters could be obtained in days, and employees could be assigned on short notice. Currently, missions are scrambling to implement the new requirements. Because the Head Office of the Department has not provided clear guidance about the type of documents the missions should request in support of a Section 11(2) request or the format or content of the approval letters, BAL envisions delays and complications. In addition, the requirements and processes may differ vastly from one South African mission to the next.

BAL Analysis: Employers are urged to plan for delays and apply for Section 11(2) work authorization as early as possible to account for complications during the transition and varying rules among overseas missions. In the United States and elsewhere, BAL has already observed a great deal of variation in how the missions are issuing pre-approval letters to visa-exempt nationals.

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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