South African Work and Work Related Visas

South African Work- and Work-Related Visas

South African Work Visas have undergone serious changes since 2014 and to a large extent our DHA have made the process more complicated than it ought to have been especially where foreigner is still abroad, and the requirements are often confusing.

Regrettably, the technicalities are misunderstood by the DHA officials’ themselves which makes the acquisition of Work Visas all the more challenging.

Legal Immigration Services are extremely adept and proficient to unravel the complexities of the new Work Visa categories to ensure success. We can provide assistance in obtaining the following South African Work- and Work-Related Visas:

  1. Section 11(2) Short term 90 days Working Visas – see Visitor’s Visas
  2. General Work Visas – Section 19(2) of the Act
  3. Critical Skills Work Visas – Section 19(4) of the Act
  4. Intra-Company Transfer Work Visas – Section 19(5) of the Act
  5. Corporate Work Visas & Corporate Worker Visas – Section 21 of the Act
  6. Exchange Visas – Section 22 of the Act

 

Note: The Act since 2014 has repealed the old “scarce skills” category in terms of section 19(1) of the Act and combined two categories into one under the Critical Skills Work Visa in terms of the new section 19(4).

The DHA has combined the old “scarce skills” and modified it significantly by extending skills (regrettably in some instances removed essential skills like education and accounting) that are essential to South Africa set out in a list of “Critical Skills’ whilst at the same time done away with the old “Exceptional Skills category”.

Section 11(2) – Short term Work Visitor’s Visas

The Section 11(2) work visa is a short-term right to enter South Africa and pursue work related activities for a period of 90 days and even extend it for a further 90 days whilst in South Africa.

Such application since 2014 requires a formal application at the nearest SA Mission in your country of origin wherein a compliant application may be submitted.

Legal Immigration Services are often engaged to assist in the preparation and advices in the acquisition of such visa and its extension once in South Africa. There are important requirements to demonstrate in order to successfully acquire such visa. It is also normally issued in less time than the usual longer-term visa application.

Extension of a Section 11(2) – Short-terms Work Visitors Visas

The 2014 Immigration Regulations have allowed for the extension of such 11(2) short-term work visa via Regulation 11(7)(e), read with section 11(1)(a) of the Act, of a further 90 days whilst in South Africa.

General Work Visas – Section 19(2) of the Immigration Act

A General Work Visa is potentially a significant category to enter South Africa as a skilled worker.

The General Work Visa envisages a common situation where a skilled foreign worker is offered employed by a South African registered employer and determined to be the most suitable candidate after the employer has unsuccessfully attempted to find local skills for that employment position.

Unfortunately, the General Work Visas now requires a formal two-stage process in order to acquire a General Work Visa. This has caused major turmoil in the success of any applicant for such visa.

Stage 1 – Department of Labour (“DoL”) interventions

Before any foreign applicant can apply for a General Work Visa, such applicant must first approach the the DoL to formally issue and provide a DoL Labour Certificate to the local South African employer after the DoL has conducted an assessment of such employer and considered their recruitment and selection process.

It is required of the South African employer to formally demonstrate sufficient evidence of due diligence to the DoL in exhausting the local employment market to show that no suitable candidate can be found, which is required to be endorsed by our DoL.

The DoL are thus similar to the DTI in terms of Business Visas where they are the first stage and arbiters of whether a foreign worker is going to be recommended positively or negatively before an applicant can apply for a General Work Visa in South Africa or abroad. The DoL will undertake to contact the South African employer with a view to its assessment of the prospective foreign worker’s eligibility.

The DoL have a structured list of requirements that would be expected to be fulfilled by a South African employer to ensure that sufficient due diligence is paid attention to the recruitment process in searching for local South Africans and that such foreign candidate is suitably skilled for the position at hand.

Note: It is highly unfortunate that the General Work Visa is in most cases turned down by the DoL without even properly considering the employers’ recruitment and selection endeavours.

In fact, the DoL does nothing more than ‘audit’ the employer’s general employment practices (so be mindful of any lack of compliance of employment practices) as opposed to its actual mandate in assessing the steps taken by the employer to show that the local workforce has been adequately exploited to arrive at the conclusion that no suitable local workers can fulfill the post for the position at hand.

This is most certainly a category to remain cautious about as DHA and other government agencies are determined to deter employment opportunities for the foreign workforce and therefore in most cases the DoL negatively recommends the foreign candidate regardless of the merits.

Step 2 – Application to South African Mission abroad or at Department of Home Affairs in South Africa

Once the DoL Labour Certificate is available it will be issued to the South African employer and notified that the General Work Visa application can be applied for. The foreign applicant will still not know whether he or she has been positively or negatively recommended and thus will nevertheless have to proceed with the application despite such uncertainty.

The application for a General Work Visa is then submitted to the South African Mission abroad or in South Africa if on existing status other than visitor or medical treatment visa.

It is thus highly recommended to contact Legal Immigration Services to discuss the risks of a General Work Visa as opposed to considering other Work Visas.

Renewals of General Work Visas

Renewals, change of status or conditions of of General Work Visas that had been issued prior to May 2014 under the old laws will be expected to fulfill the new legal requirements as outlined above.

Waivers – Section 31(1)(c) of the Act

The one option that the foreign worker together with the support of the employer can do is apply for a formal waiver and show “good cause” in terms of section 31(1)(c) of the Act to obtain the permission to alleviate the need to obtain a DoL Labour Certificate and pursuant to being successful in the waiver application such foreign worker can then apply to the DHA with a great sense of certainty to succeed.

Waivers are often granted to religious groups, sporting codes and specific employment sectors that are in demand.

Legal Immigration Services are sufficiently experienced to prepare a waiver on the basis of “good cause” to justify the issuance of such waiver.

For General Work Visas contact Legal Immigration Services for specialist legal advice.

Critical Skills Work Visas – Section 19(4) of the Immigration Act

The Critical Skills Work visa is a new addition to the work related visa options in terms of section 19(4) of the Act, having effectively replaced the old “scarce skills” under the old Quota Work Permit regime in terms of section 19(1) of the Act whilst at the same time providing a category of work visa that used to be known as the Exceptional Skills Work Permit (now repealed but not for permanent residence) in terms of 19(4) of the Act.

The requirements for a Critical Skills Work Visa are purposefully structured and set out to be a matter of prescriptive application in that any applicant who can demonstrate skills or qualifications in accordance with the “Critical Skills List” made up of specific designated industry sectors and associated occupations will qualify for a Critical Skills Work Visa upon complying with the further list of requirements for set out in the Act and the 2014 Regulations.

In most cases, it will require such qualifications to be assessed by SAQA as well as a formal endorsement and confirmation of skills or qualifications by the associated professional body representing such industry and associated occupations.

Note: The list of professional bodies are in many cases unclear as to which one applies to which critical skill and for that reason it is essential to contact Legal Immigration Services to suitably assist in the determination of the appropriate professional body if indeed there is one or such professional has unique requirements before acceptance.

Note: A Critical Skills Work Visa may be granted for ONE YEAR only if there is no employer who has offered a contract of employment. The applicant, after acquiring a critical skills, where no employer is on hand, will then have one year to find gainful employment (renewable) in that industry and occupation and upon successfully finding gainful permanent employment apply for a five year Critical Skills Work Visa.

Of course, where the applicant is in possession of a five year contract or a permanent one he or she can immediately apply for a five year Critical Skills Work Visa.

Intra-Company Transfer Work Visas – Section 19(5) of the Immigration Act

An Intra Company Transfer Work Visa (ICT) is issued to a foreigner who is required to be assigned, deployed or seconded to South African branch, subsidiary or affiliate office in relation to such foreign entity abroad.

The success of an ICT is not premised like other work visas to be dependent on skills or qualifications but whether the entities abroad and in South Africa are suitably affiliated.

It is important to note that a Skills Transfer Plan is now required in terms of the 2014 Regulations and it is important to adequately prepare and submit such document in the submission.

There are three major developments introduced under the Act and the 2014 Regulations; first, the foreign applicant must demonstrate at least 6 months in the employ of the entity abroad in terms of his or her contract of employment; second, that such ICT Work Visa is now issued up to four years, which cannot be renewed in South Africa; and finally, a ‘Skills Plan” must be submitted to show the transfer of skills to locals.

Note: Whilst an ICT Work Visa may not be renewed in South Africa after a period of four years, it may be applied for afresh before the expiry of the first terms of four years back in the applicant’s country of origin or place of residency, if applicable. This will therefore allow a further term in South Africa.

For assistance and guidance on the ICT Work Visa contact Legal Immigration Services for expert professional legal advice and support.