Foreign nationals who are required to conduct ongoing work, pursue intra-company transfers or employment in South Africa typically require an appropriate work visa.
There are three categories of work visa which are explained further below along with information regarding work visa processing times and some important basic employer compliance information.
1. Intra-Company Company Transfer Work Visas
An Intra-Company Transfer Work Visa (“ICT Work Visa”) specifically provides for the temporary transfer of a foreign national who is employed abroad by a foreign company operating in a bona fide branch, subsidiary or affiliate relationship with a company in South Africa. This visa category is restricted to a maximum period of 4 years and is not renewable. In order qualify, the foreign national must be employed by the foreign company for at least 6 months prior to the date of application for the ICT Work Visa.
The foreign national may not take up direct, permanent employment with the South African company under the auspices of his/her ICT Work Visa. The South African company will, inter alia, have to undertake to ensure that a plan is developed for the transfer of skills to a South African citizen or permanent resident during the period of the transfer and many South African Missions request evidence of the skills transfer plan in the initial application.
2. Critical Skills Work Visas
A Critical Skills Work Visa may be issued to a foreign national possessing skills or qualifications determined to be critical for South Africa. The prevailing critical skills list was published on June 3, 2014.
In order to make an application in this category, a foreign national will have to prove that his/her qualification/s and/or skills and post-qualification experience fall within the parameters of one of the critical skills categories/classes.
It is necessary for the foreign national to obtain written confirmation from a professional body, council or board recognized by the South African Qualifications Authority (“SAQA”) or any relevant Government Department confirming his/her skills or qualifications and appropriate post-qualification experience (certain concessions apply if registration is applied for) and, if required by law, provide proof of application for a certificate of registration with the professional body, council or board recognized by SAQA. Lastly, the foreign national must provide proof of evaluation of his/her foreign qualifications by SAQA and translated by a sworn translator into one of the official languages of South Africa.
A Critical Skills Work Visa may be issued for up to 5 years at a time and is renewable, subject to prevailing legislation at the time of renewal and the continued existence of the critical skills category/class. The advantage of a Critical Skills Work Visa is that the foreign national does not have to have an offer of employment at the time of application.
Further requirements include providing proof of employment to the Department of Home Affairs within 12 months after obtaining the work visa in the form of an employment contract specifying the occupation and capacity in which the foreigner will be employed; providing a written undertaking by the employer accepting responsibility for the costs related to the deportation of the foreign national and his or her dependent family members, should it become necessary; and the employer must ensure that the passport of the foreign national is valid at all times for the duration of his/her employment.
3. General Work Visas
A General Work Visa may be issued to a foreign national wishing to take up employment directly with a company, business or organization in South Africa and who does not qualify for a Critical Skills Work Visa.
As a pre-requisite for applying for a General Work Visa, the prospective employer must first approach the South African Department of Labour (“DOL”) for a certification confirming that, despite a diligent search, they have been unable to find a suitable citizen or permanent resident with qualifications or skills and experience equivalent to those of the foreign national, that the foreign national has qualifications or proven skills and experience in line with the job offer, that the salary and benefits offered to the foreign national are not inferior to the average salary and benefits of South African citizens and permanent residents occupying the same or similar positions in South Africa and that the contract of employment stipulating the conditions of employment and signed by both the employer and the foreign national are in line with labour standards in South Africa and made conditional upon the General Work Visa being approved.
The DOL certification process is a separate process which must be undertaken first and the General Work Visa application is contingent on a favourable certification by the DOL. The DOL process can take 1 to 4 months and can required substantial, relevant documentary evidence from the prospective employer. The DOL process requires a further explanation.
In addition, an evaluation of the foreign national’s qualifications must also be undertaken by SAQA and submitted with both the DOL certification request and ultimately the General Work Visa application.
General Work Visas may be issued for up to five years and renewals are contingent on a further labour certification process prior to the renewal application being submitted. Of the three available Work Visa categories, this is the most onerous.
Companies should anticipate significant delays and complications with the DOL certification process. In addition, the new regulations have not set out a process for employers to seek review or appeal of an adverse decision by the DOL.
4. Work visa applications and processing times
In the case of a first work visa application in respect of a foreign national who is still abroad, he/she is required to submit the application to the South African Mission in his/her country of citizenship or ordinary residence and a personal appearance at the Mission might be required. The processing time varies considerably from Mission to Mission. Some South African Missions issue Work Visas in as little as 5 to 10 working days, others take up to 30 calendar days and others in high volume countries such, as but not limited to India, can take up to 60+ days.
Where legally permissible, a foreign national who is already resident in South Africa in possession of a residence or work visa (excluding business visitors and those conducting short-term work on Visitor’s Visas) can apply to change his/her status to an appropriate work visa or the conditions of his/her existing work visa from within the country. The application has to be submitted to one of the provincial VFS Centres of the DHA and it will take an average of 4 to 12+ weeks for the application to be processed.
5. Basic employer compliance
There are many compliance aspects of which the employer in South Africa should be aware. A foreign national may not legally commence work in South Africa, unless he/she is in possession of an appropriate work authorization status.
The employer is required to ensure that it does not employ an illegal foreigner, a foreigner whose status does not authorize him or her to be employed or a foreign national on terms, conditions or in a capacity different from those contemplated on the foreign national’s status.
The employer is responsible for knowing and checking the statuses of all foreign nationals working for it and there are serious penalties for non-compliance, including fines imposed by the court or, in serious cases, periods of imprisonment.
In terms of recordkeeping, an employer must keep the following on record in respect of any foreign national employed:
- a certified copy of the passport bio-data page/s;
- a copy of the relevant visa or permanent residence permit;
- proof of the capacity/position in which the foreign national is or was employed; and
- a copy of the IRP5 form or certificate of earnings and job description, respectively.
The Immigration Act requires that employee records should be kept for at least 2 years after termination of employment; however, relevant Labour Legislation (The Basic Conditions of Employment Act and the Labour Relations Act) require that employee records be kept for a minimum of 3 years after termination of employment (form the date of last entry) and relevant Tax Legislation (The Unemployment Insurance Contributions Act, together with the Income Tax Act) requires that certain employee tax-related information be kept on record for a minimum of 5 years after termination of employment (from date of last entry).