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IMPACT – MEDIUM
What is the change? A committee of South Africa’s Parliament has approved the recent immigration overhaul and urged the Department of Home Affairs (DHA) to implement its provisions.
What does the change mean? The parliamentary review indicates that the new immigration regulations – a massive undertaking that has thrown some areas of the law into confusion and drawn legal challenges to stop its implementation – will move forward.
Background: Following a detailed briefing by the DHA, the chair of Parliament’s Portfolio Committee on Home Affairs announced its support of the changes and said that “these regulations are long overdue and necessary in closing loopholes in the Immigration and Refugee Acts that were systematically used by syndicates to sell South African identity and citizenship.”
The committee noted that the DHA should be aware of “unintended impact” that the new laws may cause, but such challenges “cannot and should not be used as an excuse for non-implementation of the regulations.”
In particular, the committee pointed to the regulation requiring that adults carry unabridged birth certificates for any children traveling with them and noted that the DHA assured the committee that such a rule will be temporary until the DHA implements an electronic verification system.
“Through this envisioned electronic system, the certificate will only be required when applying and stored electronically and parents will then not be compelled to travel with it physically,” the committee chair said in a statement.
BAL Analysis: The announcement signals that the new immigration regulations are going forward in the near term, despite the practical challenges of implementing them. Stakeholders will continue to meet with the Minister of Home Affairs to work out sticking points.
This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact your BAL attorney.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – HIGH
What is the change? South Africa’s strict documentary rules for traveling with children take effect Oct. 1.
What does the change mean? Adults traveling with children must carry unabridged birth certificates for all accompanying children, regardless of whether they are their biological children. Additional documentary requirements apply to solo parent travelers.
Background: The rules, aimed at reducing child trafficking, are part of South Africa’s immigration overhaul. The rules were originally set to take effect in May, but the Department of Home Affairs delayed implementation to allow families to travel during peak vacation season.
Beginning Oct. 1, all parents traveling with minor children must be in possession of unabridged birth certificates reflecting the particulars of themselves and the child. If only one parent is traveling with the child, he or she must also be in possession of written consent from the other parent in the form of an affidavit that authorizes arrival or departure to and from South Africa with the child. Where applicable, a court order by a divorced parent or a death certificate of a deceased spouse must be provided. These requirements also apply to adults traveling with nonbiological children. Additionally, unaccompanied minors must travel with letters of consent and contact details from both parents as well as letters and identity documents of the persons receiving the children in South Africa.
BAL Analysis: Parents and other adults planning travel to or from South Africa should begin as early as possible to obtain the necessary documents to avoid delays in travel.
What is the change? Under the recent immigration changes, foreign nationals in several work permit categories are no longer able to extend their work permits beyond their expiration dates.
What does the change mean? Companies and assignees should not assume that work permits due to expire will be extended and should be prepared to explore alternatives if extensions are not possible.
Background: Companies and foreign assignees should pay special attention to the following work permit categories when planning extensions or renewals:
BAL Analysis: As a general rule, work permit renewals will be very challenging and in many instances not possible at all. Companies should begin planning for alternatives in the event there are no other work visa options available.
What is the change? Individuals from visa-waived countries should be aware of inconsistent implementations of Section 11(2) work authorization procedures by South African missions.
What does the change mean? Some South African missions are requiring visa-waived foreign nationals to apply in person for a Port of Entry Visa and Section 11(2) work authorization before traveling.
Background: On April 30, 2013, the Department of Home Affairs (DHA) issued a directive to South African missions abroad, delegating powers to issue Section 11(2) work authorizations. DHA therein stopped issuing 11(2) approval letters at its head office, but did not give the missions further guidance on how to handle 11(2) requests. A section 11(2) authorization is an endorsement to a Visitor’s Visa that allows the individual to work.
Since South African missions took over this role, the procedures have differed from location to location in handling of 11(2) requests from visa-exempt nationals. Previously, visa-exempt nationals could obtain a Section 11(2) approval letter and then, upon entry in South Africa, have their passports endorsed with the 11(2) authorization. Currently, some missions are issuing the approval letter without further procedures. However, other missions are refusing to issue the 11(2) approval letter and instead require that the foreign visa-waived national apply for a Port of Entry Visa and 11(2) work authorization. In addition, the in-person requirement is being implemented inconsistently. While legally foreign nationals must appear in person to apply for Section 11(2) authorization, some South African missions require an appointment while others are allowing application by mail or courier.
BAL Analysis: Businesses and assignees should plan for the extra time necessary to determine what the procedures are at individual South African missions and be prepared to apply for a Port of Entry visa and possibly travel to the nearest South African mission to appear in-person. Note that foreign nationals from countries that require a visa to South Africa have always had to obtain a visa and 11(2) approval and entry visa before traveling to South Africa and that those policies have not changed at South African missions.
What is the change? South Africa is allowing a grace period before strict documentary regulations take effect with respect to traveling with children.
What does the change mean? The Department of Home Affairs will allow children to travel with parents or guardians without unabridged birth certificates until the end of September.
Background: Beginning Oct. 1, South Africa will enforce a new regulation requiring that adults who are traveling with children must carry an unabridged birth certificate for the children. The requirement, which is intended to prevent child trafficking, is part of the immigration overhaul that took effect May 26 and is codified in Immigration Regulations 6(12)(a).
Upon arrival and departure from South Africa, all parents traveling with minor children must be in possession of an unabridged birth certificate reflecting the particulars of themselves and the child. If only one parent is traveling with the child, he or she must also have consent from the other parent, in the form of an affidavit, specifically authorizing entry into or departure from South Africa with the child. Where applicable, a court order by a divorced parent or a death certificate of a deceased spouse must be provided. The requirements also apply to adults traveling with non-biological children and to children traveling unaccompanied.
The four-month grace period will allow families to travel with children for school holidays without the documents.
BAL Analysis: The Department of Home Affairs is urging South African citizens and foreign nationals to heed its call to apply for unabridged birth certificates for children.
What is the change? The South African Department of Home Affairs has published the list of employment categories and classes that qualify for the new Critical Skills Work Visa.
What does the change mean? Foreign nationals with qualifications or skills falling within the parameters of one of the critical-skills categories or classes may apply for a Critical Skills Work Visa, which may be issued for up to five years.
Background: The publication of the critical-skills categories follows recent major amendments to South African immigration legislation which came into force last week. The Critical Skills Work Visa and the associated critical-skills list are a very positive development. With approximately 214 critical skills listed, ranging from actuaries to sheep shearers, the scope is broad and provides businesses with many diverse options. The broader critical-skills classifications include professions in the fields of agriculture, architecture, business and business process outsourcing, IT and communications, engineering, health and clinical sciences, life and earth sciences, academia and trades. Another advantage is that there is no quota assigned to each category or class.
The Critical Skills Work Visa essentially replaces the previous Quota Work Permit and is very similar in principle. Foreign nationals whose skills or experience fall within one of the categories or classes, must obtain a confirmation of their qualifications in writing from a professional body, council or board recognized by the South Africa Qualifications Authority (SAQA), or any relevant government department. The qualifications must also be evaluated by SAQA, and, if required by law, applicants must provide proof of registration with a relevant body, board or council.
BAL Analysis: The list provides an important planning tool for employers to use in determining if foreign assignees fall under any of the critical-skills categories, as the requirements for the Critical Skills Work Visa are much less onerous than those for the General Work Visa, which requires certification from the South African Department of Labor.
What is the change? Provisions in South Africa’s newly amended immigration laws harshly punish foreign visitors and expatriates who overstay their permits or visas, including those with pending applications whose permits have expired while their applications are still under adjudication by the Department of Home Affairs.
What does the change mean? Effective immediately, all foreign nationals with pending applications whose permits have expired must not under any circumstances attempt to travel out of the country or they may be declared “undesirable persons.” This would bar them from returning to the country for up to five years (depending on the length of time that has lapsed since their permit expired). Although it is possible to apply for a waiver from the declaration of undesirability, this process can take many months and is at the discretion of the Minister of the Department of Home Affairs.
Background: The much anticipated amendments to the Immigration Act went into effect last Monday, May 26, and this is one of the changes to curb abuse of the system.
BAL Analysis: Employers who have submitted applications on behalf of foreign nationals and/or their family members from within South Africa should notify them that if their existing permits have since expired, they must not travel out of the country under any circumstances.
What is the change? South Africa is expected to announce implementation time frames for its Immigration Regulations that overhaul its visa and work permit regime.
What does the change mean? The regulations will bring enormous change, will cause significant delays and will take several months to transition into full force.
Background: South Africa overhauled its immigration laws and visa regime in new regulations drafted in February. Last week, the Immigration Regulations were published in the Government Gazette. An implementation date and rollout schedule will be announced shortly.
The main changes are:
In-Person Appointments Required
Overseas applications. Foreign nationals (and dependent spouses/children) applying for temporary residence visas from abroad must apply in person at a South African mission in their country of residence or citizenship. If no mission is available there, they may apply at the South African mission designated to receive applications from that particular country.
Extensions of status. In-person appearances and strict deadlines apply to in-country applications to extend status. The filing deadline is no less than 60 days before the current visa expires (for visas issued for less than 30 days, no later than seven working days before the current visa expires). No exceptions will be made for late submissions. Under a new rule, foreign nationals must attest by affidavit that they have complied with the terms of their existing visas and South African laws. This is an important change, as it provides DHA with written evidence to pursue charges against foreign nationals who misrepresent themselves.
Change of status. Foreign nationals holding visitor’s visas or medical treatment visas may not change their status to another visa in-country unless exceptional circumstances exist, namely: emergency medical treatment longer than three months, changing from accompanying spouse of a business-visa holder to a study or work visa, or changing from a medical treatment visa to testify in a criminal trial upon initiation by a public prosecutor.
Section 11(2) Work Authorization
Section 11(2) work authorizations will now be processed by overseas South African missions. Companies must now include a specific list of information: purpose or need for the foreign national’s work, nature of work, qualifications and skills required for the work, duration and place of work, duration of the visit, proof of remuneration by the employer, and identity and contact information of the employer or host organization. The process of obtaining the Section 11(2) work authorization will follow the recently released DHA directive.
Intra-Company Transfer Work Visas
The main changes to the Intra-Company Transfer Work (ICT) Visa are that the foreign transferee must be employed by the overseas company for at least six months, the ICT Visas may be issued for up to four years and are not renewable (previously they were restricted to 24 months), and the employer must develop a plan to transfer skills to a South African citizen or permanent resident.
It is still unclear whether DHA will allow extension of ICT Work Permits issued before the amendments for an additional 48 months or whether the current process of applying for a waiver and a general work visa will continue.
General Work Visas
In a major change, employers must now obtain certification by the South African Department of Labour stating they have fulfilled labor market testing criteria, including a search of the local job market and inability to find suitable candidates. The certificate is a prerequisite to applying for a General Work Visa. Companies should anticipate significant delays and complications in the certification process. In addition, the new regulations have not set out a process for employers to seek review or appeal of a negative decision by the Department of Labour.
Other requirements remain in place, including evaluation of the foreign worker’s qualifications by the South African Qualifications Authority (SAQA), but the foreign worker no longer needs to submit annual proof of continued employment. General Work Visas may be issued for up to five years; renewals are subject to the employment contract.
Critical Skills Work Visas
The Critical Skills Work Visa, similar to the former Quota Work Permit, will depend on the list of critical skills to be published by the DHA. To apply, a foreign worker must demonstrate the critical skills or qualifications. One change is that the professional bodies, councils or boards attesting to the foreign worker’s qualifications must be recognized by SAQA. Previously, this was not necessary. Critical Skills Work Visas may be issued for five-year (renewable) periods.
Visitor’s Visa
Visitor Visas, issued for up to three years, will now allow work pursuant to a contract that partially requires certain activity in South Africa involving the following: teaching at an international school, film and advertising, journalists, visiting professors/lecturers, artists, entertainers, tour leaders, and witnesses in criminal cases.
Permanent Residence
Birth, marriage and police certificates must be apostilled for permanent residence applications, and employment-based applicants must prove they held a work permit for a continuous five-year period.
Other general changes:
Employer Bears Cost
All employers must now confirm in writing that they will pay any costs of deportation of foreign nationals and their family members should it become necessary. Employer are also now responsible for ensuring that foreign employees’ passports remain valid at all times.
Passports
All passports must have at least two blank pages and be machine-readable and be valid for at least 30 days after the foreign national’s intended date of departure from South Africa.
Police Clearance Certificates
Foreign nationals must submit police clearance certificates from all countries lived in for at least 12 months since age 18, and this must now be completed before submitting a visa application. For some, this will significantly lengthen the time required for preparing an application.
Change of Address
All foreign nationals must inform DHA of any address change or other changes to contact details within 14 days or be in violation of the law.
Admission & Departure
VFS Processing Centers
VFS Global will open visa and permit centers across nine provinces in June according to the following schedule: Kimberly, Pretoria and Rustenburg on June 2; Bloemfontein, Durban and George on June 9; Johannesburg on June 18; Cape Town on June 20; and Nelspruit, Polokwane and Port Elizabeth on June 23. The centers will accept applications Monday to Friday, 8 a.m. to 4 p.m. and foreign nationals must apply in person to record their biometric information.
BAL Analysis: The Department of Home Affairs will meet with stakeholders in the coming days. At that time, we expect that many of the new procedures and timelines will become clearer. BAL will update clients as soon as this new information is available.
What is the change? The Immigration Regulations that overhaul South Africa’s immigration laws have been published in the Government Gazette with a start date of May 26.
What does the change mean? The sudden implementation date without a proper rollout period or preparation by the regional offices or South African overseas missions means that there will be significant delays and challenges over the coming months. All current cases that have not yet been filed will require review to determine how the changes will affect them; many cases will require revision.
Background: The Immigration Regulations put into effect changes stemming from the Immigration Amendment Act No. 3 of 2007 and the Immigration Amendment Act No. 13 of 2011.
Among the many changes, applications for Quota and Exceptional Skills Work Permits will no longer be available. Also, applications for General Work Permits (soon to be known as Work Visas) will now require recommendation from the Department of Labour in a process likely to carry longer processing times.
Applications submitted to the Department of Home Affairs before May 26 should be governed by the legislation prior to the amendments.
The South African missions abroad most likely are not prepared for the implementation and new application forms prescribed in the new Immigration Regulations have not been printed.
BAL Analysis: This is a major overhaul to South Africa’s immigration laws and procedures, and while their implementation was anticipated to take place soon, the government has not made provisions for a transition period. As such, we anticipate that it will take at least three to six months, if not longer, for the overhaul to operate smoothly and companies should be prepared for significant delays in the coming months.
What is the change? The Department of Home Affairs has issued a directive that significantly changes the process for foreign nationals seeking Section 11(2) work authorization.
What does the change mean? Visa-exempt foreign nationals must now a obtain a pre-approval letter for their Section 11(2) work authorization from the appropriate South African mission overseas, rather than applying electronically with the Department of Home Affairs (DHA). Visa-required foreign nationals must apply for a Section 11(2) at a South African mission (rather than DHA) at the same time that they apply for a visa.
Background: On May 13, without notice, the Department of Home Affairs released an immigration directive changing the Section 11(2) work authorization process. Section 11(2) is a popular route that provides work authorization to foreign nationals on visitor’s permits. South Africa recently overhauled its immigration laws in amendments that could take effect as early as June 1, but in all likelihood may require additional time to implement fully.
The May 13 directive orders South African consular missions to assume the process of issuing Section 11(2) work authorization letters. Under the former system, visa-exempt foreign nationals applied for these letters electronically via the Department of Home Affairs and presented them upon arrival. Under the new process, visa-exempt foreign nationals will now submit their Section 11(2) work authorization requests to the appropriate South African consular post in their home country and then present the Section 11(2) letter upon arrival.
Previously, many visa-required nationals needed to obtain pre-approval letters from DHA for the Section 11(2) work authorization before applying for their visitor’s visas. For nationals of India, for example, this often added 5-10 days to the process. With the new directive, a foreign national who requires a visitor’s visa to enter South Africa will apply at an overseas mission for the visa at the same time as requesting Section 11(2) work authorization, which will streamline the process.
Unfortunately, the Department of Home Affairs’ directive is ambiguous with regard to issuing Section 11(2) work authorization letters to visa-exempt nationals. In the past, such letters could be obtained in days, and employees could be assigned on short notice. Currently, missions are scrambling to implement the new requirements. Because the Head Office of the Department has not provided clear guidance about the type of documents the missions should request in support of a Section 11(2) request or the format or content of the approval letters, BAL envisions delays and complications. In addition, the requirements and processes may differ vastly from one South African mission to the next.
BAL Analysis: Employers are urged to plan for delays and apply for Section 11(2) work authorization as early as possible to account for complications during the transition and varying rules among overseas missions. In the United States and elsewhere, BAL has already observed a great deal of variation in how the missions are issuing pre-approval letters to visa-exempt nationals.