5. South African Work & Work-related Visas
The Act and 2014 Regulations provide a series of work-related categories, each having its own set of requirements.
The following categories of work-related visas are catered for in terms of the Act:
- Section 11(2) Short-term: 90 days’ Work Visa – see also under Visitor’s Visas;
- Section 11(1)(b)(iv) and Regulation 11(4) of 2014 Regulations – see also under Visitor’s Visas;
- General Work Visas – Section 19(2) of the Act;
- Critical Skills Work Visas – Section 19(4) of the Act;
- Intra-Company Transfer Work Visas – Section 19(5) of the Act;
- Corporate Work Visas & Corporate Worker Visas – Section 21 of the Act; and
- Exchange Visas – Section 22 of the Act
Section 11(2) – 90 days - Short-term: Work Stay Visitor’s Visas
Foreign applicants are permitted, in terms of section 11(2) of the Act, to enter and remain in South Africa for a short stay of ninety days and conduct work in the form of meetings, seminars and for actual commercial purposes.
A section 11(2) application must be submitted abroad and cannot simply be requested on arrival.
There are a series of requirements set out in Regulation 11(7) of the 2014 Regulations that will support the application, which is then submitted at the nearest SA Mission where you hold a passport. It is generally accepted that the turnaround time to adjudicate a section 11(2) visitor’s visa is much shorter i.e. around one to two weeks.
Extension of a Section 11(2) – Short-term: Work Visitors Visas
A 90 days short stay visitor’s visa may be extended in South Africa in accordance with regulation 11(7)(e), read with section 11(1)(a) of the Act for a further 90 days.
Tactically, it may be ideal to bring in foreign workers on such shorter-term work stays to commence employment before making a long-term work visa abroad, as this will effectively allow such foreign worker to remain and work in South Africa for six months whilst they plan to make their long-term work visa abroad.
General Work Visas – Section 19(2) of the Act
The Department is averse to the issuance of a general work visa to foreign applicants and has effectively exceeded its powers, together with the Department of Labour (“DoL”), who collude to negate the ability of foreign applicants to obtain such visa.
The basis for a general work visa is predicated on a registered South African employer providing a formal offer of employment to a prospective skilled foreign worker after conducting an objective recruitment process that can objectively establish that such foreign worker remained the best candidate for the position in terms of skills, experience and qualifications.
As in the case of a business visa, the general work visa also envisages a two-part process.
Part 1 – The DoL Recommendation
The South African employer must in the first instance demonstrate sufficient due diligence in exhausting potential local candidates in the local employment market to determine that no suitable candidate can be found, which is required to be endorsed by our DoL.
The DoL requires certain steps to be successfully undertaken in the recruitment process to arrive at an outcome that such foreign candidate is suitably skilled for the position at hand and the best candidate amongst such list of applicants.
Note: It is has become a common trend that the DoL has overreached its powers with or without the knowledge of the Department to stifle foreign applicants. Instead, the attendances on the part of DoL is merely an expedition to police or monitor labour law compliance and the employer’s obligations in terms of registration for UIF and Compensation Commission.
Once the DoL has conducted its ‘audit’ on the prospective employer it will issue in most cases a negative recommendation of the foreign candidate, regardless of the merits. That will ultimately lead to the refusal of the general work visa application.
Part 2 – Application to the Department either abroad or change of status (if permissible) in South Africa
When the DoL has finalised the recommendation, which will likely be negative, the foreign applicant will be directed to submit such general work visa application.
Such foreign applicant will not be aware of the recommendation outcome as the Department will obtain the outcome from the DoL and thereby adjudicate the general work visa application.
Such foreign applicant will not be aware of the recommendation outcome as the Department will obtain the outcome from the DoL and thereby adjudicate the General Work Visa application, which in most
Smiedt & Associates finds this conduct unlawful, irrational and contrary to sound administrative justice, which all persons (including foreign persons) are protected by under our Constitution. See section 33 of our Constitution. Anyone refused by the Department and or DoL should contact us as this is a matter that should be litigated on.
Renewal of General Work Visas
Those who acquired a general work visa in terms of the previous Act i.e. prior 2014 will have to follow the new laws for a renewal of such work visa.
Such foreign applicant will have to recognize that he or she may be confronted with the negative recommendation by the DoL and ultimate refusal by the Department.
Therefore, it is important to look at all the working visa options before attempting a renewal of such general work visa as the Department will seek to refuse such application despite it being administratively unlawful.
Critical Skills Work Visas – Section 19(4) Act
In 2014, the critical skills work visa took effect as a new category under the working visas (section 19 of the Act) in terms of section 19(4) of the Act and ultimately did away with both the old “scarce skills” in terms of the Quota Work Permit under section 19(1) of the Act and the Exceptional Skills Work Permit in terms of 19(4) of the Act.
Whilst the Act and the Regulations set out all the requirements for a critical skills work visa, we are of the view that there remain TWO essential requirements to determine whether you will succeed and that comprises of:
1. SAQA assessment and Qualifications fall within Critical Skills List
The requirements for critical skills are set out in a prescriptive sense as set out in a closed list of skills or qualifications made up of determined industry sectors and within such sectors the appropriate designated critical skills. As such, your skills or qualifications fall either in or out of the industry sectors/critical skills list.
If the foreign applicant obtained his or her qualifications abroad i.e. non- South African college or university then it will be expected that such qualifications will have to be assessed by SAQA, which is a South African government body that deals with the assessment of foreign qualifications and relates it to South African academic standards. SAQA must be applied for by the foreign applicant.
2. Registration with Professional Body based on Critical Skills List
If a foreign applicant falls within the critical skills list it is required to register with the relevant professional body for such industry sector/critical skills.
For example, if you are an accomplished professional executive manager and have an MBA degree in business you would find that the critical skills of ‘corporate general manager’ would be most aligned to your skills or qualifications.
If your skills or qualifications are in line with the critical skills list you would then, firstly, perform your SAQA assessment, and, second, embark on registration with your professional body, and in our case example, you would register with the Institute of Business Advisors of South Africa (“IBASA”) or the Institute of Directors of South Africa (“IODSA”).
Each professional body will have its own unique set of requirements but once you have supplied the pre-determined requirements you will be registered with such professional body and find yourself in a strong position to apply for a critical skills work visa. You will now have your SAQA certificate and be registered with IBASA or IODSA.
A critical skills work visa need not be applied for with a South Africa employer and can be issued for a year if there is no employer who has offered a contract of employment. Once that applicant has the one year critical skills work visa he or she can work in South Africa and attempt to prospect for full time employment and thereupon seek to apply for a full five year critical skills work visa.
Note: Exceptional skills has been retained for permanent residence but has nevertheless introduced critical skills as a key component in qualifying for such residency status.
For critical skills work visa contact Smiedt & Associates, specialist immigration attorneys for efficient and skilled service.
Intra-Company Transfer Work Visas (“ICT”) – Section 19(5) of the Act
An ICT is based on two aligned, associated or affiliated businesses, one in South Africa, and abroad, seeking to assign, transfer or second a foreign employee of such business abroad to come to South Africa and perform skilled work.
There are TWO fundamental issues that will determine the success of an ICT:
- Do the companies or business both in South Africa and abroad have an affiliation, association or subsidiary relationship;
- Has the foreign employee identified to be seconded/assigned to the South African office from the foreign office been employed by the foreign office for a minimum of six months.
In the event that both requirements can be fulfilled it will allow the businesses to make plans for a successful assignment and plan accordingly.
Note: What makes an ICT an attractive option when considered against other working visas is that it does not require the foreign applicant to go through SAQA or a professional body, nor does it require the employer to do thorough recruitment. As a result, if there is a business relationship with two or more companies in South Africa and abroad then the ICT is to be considered.
The ICT is now issued for four years and which cannot be renewed in South Africa.
The Department is placing much emphasis on the ‘Skills Plan’ as required in terms of the Regulations. Be aware that this ‘Skills Plan’ is critical to demonstrate that the local South African office formally has a ‘Skills Plan’ in place to upskill local South Africans with the support of those foreign workers coming into South Africa on an ICT. Without a proper ‘Skills Plan’ the Department will refuse an ICT application.
Note: Whilst an ICT may not be renewed in South Africa it does allow for a new ICT application to be made abroad and in this case it is imperative to highlight the ‘Skills Plan’ and show that the skills transfer to locals is not complete and would require a further term of four years to complete.
The Corporate Visa – Section 21 of the Act
Corporate visas are not issued as frequently as in the past, before the 2014 immigration amendments. It is designed to encourage investment and growth into South Africa. However what is perplexing is that such Corporate Visa is more technical, confusing and onerous, than ever before, to acquire.
This has devastating effects on our economy and is a sad reflection of our Department, the DTI and all the government clusters who wish to steer our country into a commercially viable destination.
The applicant in a South African corporate visa is a corporate applicant as opposed to an individual as in the case of all other visa categories.
A South African corporate visa requires collaboration between the Department, the DoL and the DTI and it is thus no surprise that similar negative sentiments towards foreign workers pervades the corporate visa.
The requirements are onerous both on the corporate applicant and the corporate worker that makes it very cumbersome and onerous to successfully obtain such a visa. So, whilst on paper, it is encouraging to offer such a corporate visa, in reality it is nothing more than an ‘empty’ offer.
Any corporate applicant should contact us in advance as the steps can be made simpler if at the outset the Department is briefed on the corporate applicant to encourage the commitment from the various government agencies.
The Internship Visa – Section 22(b) of the Act
An internship visa is an opportunity for those foreign applicants, under the age of 25, to take up a one year working assignment with a South African employer willing to offer employment and support to such worker in the course of employment.
Such internship visa is not designed for a period longer than a year and cannot be renewed. However, an applicant can change status in South Africa from an internship visa.
Of course, an internship visa cannot be applied for from a visitor’s visa unless such visitor’s visa is a long-term visa and not for leisure.
It would possibly make sense for a graduate who has held a study visa to make a change to an internship visa and then consider further options to a long-term working visa like a critical skills work visa.
