New regulations make it tougher to hire foreign workers in South Africa – what you need to know

IOL – 03 August 2022

The Department of Employment and Labour (DEL) has published an annexure to South Africa’s immigration regulations, making sure that all work visa applications are vetted by the department first.

Labour and immigration experts at Cliffe Dekker Hofmeyr said that employers must ensure that they comply with new requirements to avoid any administrative delays in the processing of visa applications.

The new annexure clarifies “uncertainty” about the DEL’s involvement in the visa application process, now making it a critical step, said Cliffe Dekker Hofmeyr.

There is now a compulsory preliminary process to be followed before work visa applications are submitted to Visa Facilitation Services (VFS), which was not the case prior to the annexure.

Previously, an employer was required to register a vacancy with the DEL and had to interview all prospective candidates referred to them by the department. Under the new annexure, visa applications to fill the position must be submitted to the DEL for vetting.

The annexure deals with the following:

  • A general work visa (GWV);
  • A corporate visa;
  • The renewal of an existing visa (to a GWV);
  • The change of conditions or status of an existing visa (to a GWV);
  • A permanent residence permit for foreigners who receive an offer of employment while in possession of a valid work visa.

According to Cliffe Dekker Hofmeyr, in terms of the preliminary process, the following steps must be taken by the client employer – and not the foreign worker – before a visa application is submitted to VFS:

  • The employer must register the employment opportunity with the DEL by completing a registration form.
  • After completing the employment opportunity form, the DEL will try to provide the employer with suitable candidates for placement. The client employer is required to inform the DEL whether any of its referred candidates have been employed.
  • The visa application form must be completed and delivered to the relevant DEL provincial office, together with the respective supporting documents. When submitting the visa application, the client employer must also provide the DEL with its contact details and business address for purposes of future compliance audits.
  • After the visa application is submitted to the DEL, a “visa finalisation notification” will be emailed to the employer after a recommendation certificate has been submitted by the DEL to the Department of Home Affairs (DHA).

In terms of the annexure, the DEL’s recommendation is not appealable, and an appeal can only be directed to the DHA, added Cliffe Dekker Hofmeyr.

Only after the employer receives the notification from the DEL it can submit the work visa application to the DHA. The turnaround time for the DEL to process a work visa is said to be 30 working days. However, the department currently faces a backlog.

Zero-tolerance stance

The DHA announced at a recent Xpatweb conference that it has the mandate to address immigration in South Africa. It urged employers to ensure that all expatriate staff are in possession of legally obtained and issued work visas.

The department’s approach has been necessitated by years of employers failing to comply with the provisions of the Immigration Act through the consistent employment of illegal foreigners without valid work visas, said Cliffe Dekker Hofmeyr.

Under the Immigration Act, employers are prohibited from employing illegal foreign nationals. The new zero-tolerance approach by the government means that employers who are found to have contravened the Immigration Act will be shown ‘no mercy’.

Cliffe Dekker Hofmeyr said that employers must make a good faith effort to ascertain the status or citizenship of any foreigners they intend to employ, not to contravene the Immigration Act.

This could be done by:

  • Verifying the validity of prospective employees’ work visas, refugee or asylum permits through either the Department of Home Affairs or a third-party service provider such as the Managed Integrity Evaluation Services; or,
  • Conducting an immigration audit of all current foreign employees.

An illegal foreign national under the Immigration Act is a foreigner whose status does not authorise them to be employed by a particular employer. Or any foreigners on terms, conditions and/or in any capacity other than the capacity provided for based on their status, said Cliffe Dekker Hofmeyr.

If an employer is in contravention of the act, it is guilty of an offence and liable to either a fine or imprisonment upon conviction, the firm said.

The DHA said it is currently working its way through businesses and arresting illegal ex-pats and relevant company representatives.

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