Sweeping changes to work permit regime are coming

6 Feb 14

SOUTH AFRICA

IMPACT – HIGH

What are the changes? The South African government has amended its Immigration Act to further reform and enhance the existing legislation, and soon-to-be-released regulations are expected to significantly impact corporate employers and foreign nationals.

What do the changes mean? The Immigration Amendment Act will change the current work permit regime, require that foreign workers apply in-person, potentially create stricter criteria for labor market testing and intra-company transferees, and impose stiff penalties for non-compliance.

  • Implementation timeframe: Legislative amendments were initially made to the principal Immigration Act in 2011 and it has taken the Department of Home Affairs an extensive period to finalize the proposed Immigration Regulations. It is anticipated that the regulations to the amendments will be published in the month of February for public comment. All changes to the law are expected to take effect by June 1.
  • Visas/permits affected: All permits will now become known as visas. The changes will impact the following existing categories: General Work Permits, Intra-Company Transfer Work Permits, Exceptional Skills Permit, Quota Work Permit, Corporate Permits, and Exchange Permits.
  • Who is affected: Companies hiring and assigning foreign workers to South Africa.
  • Impact on processing times: None at the moment, but when the changes take effect, there are likely to be delays while all government ministries adapt to the new rules.
  • Business impact: Depending on how the new law is further defined in the Immigration Regulations, these broad changes may significantly impact foreign workers and corporate employers.
  • Next steps: Companies should anticipate major changes in the coming year. The Immigration Regulations are expected to be released in February for public comment and will further clarify how the changes will be applied on the ground. BAL will report on the Immigration Regulations as soon as they are published.

Background: The changes stemming from the Immigration Amendment Act are generally aimed at cracking down on abuse of the current legislation, refining the existing legislation to make it more effective in achieving its objectives, enhancing security and providing stiff penalties for non-compliance.

Anticipated changes

  • Intra-Company Transfer Work Permit. Most likely, the duration of this permit will be increased from two years to four years. It is also likely that more restrictive criteria will be imposed.
  • In-country change of status. Those entering South Africa as visitors will no longer be able to convert to a Work Visa unless there are “exceptional circumstances.”
  • In-person application. Foreign nationals applying for status within South Africa and from abroad will be required to appear in person to submit their applications.
  • Critical Skills Work Permit. The existing Quota Work Permit and Exceptional Skills Work Permit categories will be replaced by a new Critical Skills Visa category for foreign nationals who possess skills that are critical to South Africa.
  • Corporate Permits. Corporate Permits for companies employing large numbers of foreign nationals will become known as Corporate Visas. A foreign national will now be restricted to working only for the sponsoring entity specified on the Corporate Visa. This will impact third-party brokers that previously obtained Corporate Visas to hire foreign workers on behalf of companies. Certain industries will also be excluded from applying for Corporate Visas.
  • Overstays. A foreign national who overstays his or her visa may now be declared an “undesirable person” and will be barred from re-entering or obtaining temporary or permanent residence. A foreign national who wishes to re-enter will have to apply to the Director General of the Department to waive the “undesirable” designation.
  • Stiffer penalties for non-compliance. The Amendment Act also introduces much stiffer penalties for employers and foreign nationals for non-compliance with periods of imprisonment being increased to a period of between five and 15 years.

BAL Analysis: We anticipate that the Immigration Amendment Act will usher in major changes this year. Companies and foreign nationals should plan to confront generally more restrictive rules on work visas and slowdowns as the new rules take effect.

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

Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@balglobal.com.