South Africa: Changes to the Immigration Amendment Act South Africa: Changes to the Immigration Amendment Act

South Africa: Changes to the Immigration Amendment Act
31 Oct 2014

The Department of Home Affairs announced the Immigration Regulations of 2014 will come into effect and this marks the commencement of the Immigration Amendment Act of 2011. However, several amendments have now been made to the Act, which will impact organisations who apply for visas on behalf of their employees.

Visa vs permit

The word ‘visa’ replaces the word ‘permit’, with the exception of a permanent residence permit which will retain its title. Going forward, a visitor’s permit will now be called a visitor’s visa and a work permit will be called a work visa. This will allow a clear distinction between temporary/short-stay visas and long-stay/permanent residence permits.

Changes under section 11(2) of the Immigration Act Section 11(2) of the act makes provision for employees who wish to work in the country on a short-term assignment of no more than three months. Previously authorisation was relatively uncomplicated to obtain and required minimal supporting documentation.

However, changes to the legislation mean a number of additional supporting documents are now required. Previously employers would apply for authorisation directly to the Department of Home Affairs head office in Pretoria prior to the employee’s departure.

Provided the employee was from a country that is visa exempt (in other words does not require a visa to enter South Africa) it was relatively straightforward. Indeed all the employee was required to do was show a copy of the letter to the immigration official at the airport who would then annotate the work authorisation to the foreigner’s visitor visa issued to him/her upon entry (again this was only applicable to foreigners from visa exempt countries).

But the new legislation requires employees to apply for the work authorisation in their home country or country of residence (whether that country is visa exempt or not) at the nearest South African embassy/high commission/consulate/VFS office. Supporting documents required for a South Africa visa are still very similar but may differ from consulate-to-consulate and country-to-country.

Employees will also, in terms of policy, only be permitted to apply for work authorisation once, in terms of section 11(2), in a period of 12 months preventing the instance where employees keep reentering on visas with ‘section 11(2)’ authorisation and thus avoid ever applying for the proper work visa.

Employees currently in the country on a visa with work authorisation issued in terms of section 11(2) will not be allowed to change their status in South Africa and will instead be required to return to their home country prior to the expiry of their current visa and apply for a change of status (other visa) abroad.

General work visa

The major change in the requirements when applying for a ‘general’ work visa is that an employer must now have first sought to employ a South African citizen. As such an employer requires proof in the form of a certificate from the Department of Labour confirming that despite a diligent and rigorous search the prospective employer has been unable to find a suitable South African citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant.

Part of the application to the Department of Labour requires the completion of a form which includes an overview of the position. They must also advertise the vacancy on their website and the department will then go through the process of seeking to match any jobseekers registered on their system that would qualify for the position.

An inspector from the department will visit your premises requesting a list of documents in support of your application. This is a process that is easy to prepare for and employers can be guided through to ensure they have all the requirements in hand. A general work visa is issued for a period not exceeding five years.

Processing of a ‘general work’ visa to speed up

We have found that in the past all visa applications including ‘general’ work visa applications took a period of three to six months to process. Following adoption of the new act (and taking into consideration the Department of Labour takes approximately 30 to 60 days to issue its supporting certificate) the processing of the application once filed at a South African embassy/high commission/ consulate office in the applicant’s home country will then take a period of roughly 30 working days to process.

It may take on average 60 days (in terms of the new regime) to process if filed in South Africa.

Critical Skills Visa

In order to apply for a work visa in this new category you need to be on the critical skills job list and register with an applicable registered body. The Critical Skills Visa will be valid for a period of up to five years. You will also be able to apply for permanent residence on the same basis.

The application will have to be supported by a confirmation from a suitable professional body that the applicant possesses the required skills and/or qualifications along with appropriate experience.

Intra Company Transfer Visa

Previously this visa would have been issued for a period of up to two years. This has now been extended to a maximum of four years under the new Act. Nothing in law prevents a person already in the country on this visa to obtain a new intracompany transfer visa valid for the maximum period of four years. No further applications for extension beyond this four-year period will be allowed. All new intra-company transfer work visas will be issued for a period not exceeding four years and is not renewable.

Intra-Company Transfer Visas can be applied for where the relationship between the foreign and South African entities exist as either a branch, subsidiary or an affiliate relationship. In addition the contract of employment with the company abroad must be valid for a period of no less than six months in order to qualify for this permit.

Undesirable Persons

All visa or permit holders who overstay their visas may result in them being declared undesirable for a period of up to five years. All foreigners will need to have a valid visa in their passport upon leaving the country or face refusal of re-entry into South Africa for a period of time as outlined.

Refusal of entry periods

» In the case of a person who overstays for a period not exceeding 30 days, they will be declared undesirable for a period of 12 months
» A second offence within a period of 24 months, will be declared undesirable for a period of two years
» In the case of a person who overstays for more than 30 days, they will be declared undesirable for a period of five years

We suggest keeping a clear track of the expiry of all employee permits and diligently ensure the necessary update of visas to avoid falling foul of any time lapses. It is clear the new legislation will be enforced rigorously by the various government departments.

While there have been a number of negative responses and some rather questionable actions by department officials in some cases, we have found the new process efficient and the department to be very helpful in assisting with the new regulations.

Marisa Jacobs from Xpatweb specialises in the application of temporary and permanent residence permits.

The Department of Home Affairs announced the Immigration Regulations of 2014 will come into effect and this marks the commencement of the Immigration Amendment Act of 2011. However, several amendments have now been made to the Act, which will impact organisations who apply for visas on behalf of their employees.

Visa vs permit

The word ‘visa’ replaces the word ‘permit’, with the exception of a permanent residence permit which will retain its title. Going forward, a visitor’s permit will now be called a visitor’s visa and a work permit will be called a work visa. This will allow a clear distinction between temporary/short-stay visas and long-stay/permanent residence permits.

Changes under section 11(2) of the Immigration Act Section 11(2) of the act makes provision for employees who wish to work in the country on a short-term assignment of no more than three months. Previously authorisation was relatively uncomplicated to obtain and required minimal supporting documentation.

However, changes to the legislation mean a number of additional supporting documents are now required. Previously employers would apply for authorisation directly to the Department of Home Affairs head office in Pretoria prior to the employee’s departure.

Provided the employee was from a country that is visa exempt (in other words does not require a visa to enter South Africa) it was relatively straightforward. Indeed all the employee was required to do was show a copy of the letter to the immigration official at the airport who would then annotate the work authorisation to the foreigner’s visitor visa issued to him/her upon entry (again this was only applicable to foreigners from visa exempt countries).

But the new legislation requires employees to apply for the work authorisation in their home country or country of residence (whether that country is visa exempt or not) at the nearest South African embassy/high commission/consulate/VFS office. Supporting documents required for a South Africa visa are still very similar but may differ from consulate-to-consulate and country-to-country.

Employees will also, in terms of policy, only be permitted to apply for work authorisation once, in terms of section 11(2), in a period of 12 months preventing the instance where employees keep reentering on visas with ‘section 11(2)’ authorisation and thus avoid ever applying for the proper work visa.

Employees currently in the country on a visa with work authorisation issued in terms of section 11(2) will not be allowed to change their status in South Africa and will instead be required to return to their home country prior to the expiry of their current visa and apply for a change of status (other visa) abroad.

General work visa

The major change in the requirements when applying for a ‘general’ work visa is that an employer must now have first sought to employ a South African citizen. As such an employer requires proof in the form of a certificate from the Department of Labour confirming that despite a diligent and rigorous search the prospective employer has been unable to find a suitable South African citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant.

Part of the application to the Department of Labour requires the completion of a form which includes an overview of the position. They must also advertise the vacancy on their website and the department will then go through the process of seeking to match any jobseekers registered on their system that would qualify for the position.

An inspector from the department will visit your premises requesting a list of documents in support of your application. This is a process that is easy to prepare for and employers can be guided through to ensure they have all the requirements in hand. A general work visa is issued for a period not exceeding five years.

Processing of a ‘general work’ visa to speed up

We have found that in the past all visa applications including ‘general’ work visa applications took a period of three to six months to process. Following adoption of the new act (and taking into consideration the Department of Labour takes approximately 30 to 60 days to issue its supporting certificate) the processing of the application once filed at a South African embassy/high commission/ consulate office in the applicant’s home country will then take a period of roughly 30 working days to process.

It may take on average 60 days (in terms of the new regime) to process if filed in South Africa.

Critical Skills Visa

In order to apply for a work visa in this new category you need to be on the critical skills job list and register with an applicable registered body. The Critical Skills Visa will be valid for a period of up to five years. You will also be able to apply for permanent residence on the same basis.

The application will have to be supported by a confirmation from a suitable professional body that the applicant possesses the required skills and/or qualifications along with appropriate experience.

Intra Company Transfer Visa

Previously this visa would have been issued for a period of up to two years. This has now been extended to a maximum of four years under the new Act. Nothing in law prevents a person already in the country on this visa to obtain a new intracompany transfer visa valid for the maximum period of four years. No further applications for extension beyond this four-year period will be allowed. All new intra-company transfer work visas will be issued for a period not exceeding four years and is not renewable.

Intra-Company Transfer Visas can be applied for where the relationship between the foreign and South African entities exist as either a branch, subsidiary or an affiliate relationship. In addition the contract of employment with the company abroad must be valid for a period of no less than six months in order to qualify for this permit.

Undesirable Persons

All visa or permit holders who overstay their visas may result in them being declared undesirable for a period of up to five years. All foreigners will need to have a valid visa in their passport upon leaving the country or face refusal of re-entry into South Africa for a period of time as outlined.

Refusal of entry periods

» In the case of a person who overstays for a period not exceeding 30 days, they will be declared undesirable for a period of 12 months
» A second offence within a period of 24 months, will be declared undesirable for a period of two years
» In the case of a person who overstays for more than 30 days, they will be declared undesirable for a period of five years

We suggest keeping a clear track of the expiry of all employee permits and diligently ensure the necessary update of visas to avoid falling foul of any time lapses. It is clear the new legislation will be enforced rigorously by the various government departments.

While there have been a number of negative responses and some rather questionable actions by department officials in some cases, we have found the new process efficient and the department to be very helpful in assisting with the new regulations.

Marisa Jacobs from Xpatweb specialises in the application of temporary and permanent residence permits.