South Africa Archives

IMPACT – MEDIUM

What is the change? The Department of Home Affairs, or DHA, has contracted with VFS Global to open visa facilitation centers across the country to handle applications within South Africa under upcoming amendments to South African immigration legislation.

What does the change mean? The amendments require foreign nationals to appear in person at VFS visa facilitation centers to submit their applications and biometric data. They will no longer submit their applications to the regional offices of the DHA.

Implementation timeframe: The visa centers are expected to launch on June 1, 2014.
Visas/permits affected: All visas.
Who is affected: All foreign nationals submitting applications from within South Africa.
Impact on processing times: The change is anticipated to slow processing times in the early days of adoption, but should eventually furnish a speedier process once well-established.
Business impact: The new process will cost slightly more, due to an additional VFS fee which will be charged in addition to DHA fees. There may be temporary processing delays when the visa facilitation centers become operational.
Next steps: Where possible, apply for visas before June 1. For applications submitted under the new system, plan for extra processing time and potential delays. Foreign nationals located outside of major cities will have to travel to their nearest Visa Facilitation Centre which will, in some cases, require lengthy journeys.

Background: This change is part of a major immigration overhaul that BAL reported earlier this month. All applicants must report in person, including children. However, designated representatives may accompany applicants to the visa facilitation centers to submit applications and sit for biometric data. Applicants must present their passports, but can keep them while their applications are pending. Other details are as follows:

The centers will be open between 8 a.m. and 3 p.m. on all working days.
An automated queuing system will take applicants in order on a walk-in basis.
Payment of fees will be accepted via credit or debit card and electronic funds transfers (EFTs).
To streamline the process, VFS will scan applications and forward them electronically to DHS for adjudication. Foreign nationals may designate a representative to receive the decision rather than appearing in person again.
The 11 VFS Global center locations are: Cape Town, Durban, George, Johannesburg, Kimberley, Mangaung, Nelspruit, Polokwane, Port Elizabeth, Rustenburg and Pretoria.

BAL Analysis: Once established, the visa facilitation centers are expected to streamline and improve the visa application processes from within South Africa. Businesses and foreign nationals should anticipate delays and challenges during the implementation phase.

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.

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IMPACT – MEDIUM

What is the change? The proposed major amendments to South African immigration legislation are anticipated to come into force any time between now and June 1. The changes may be implemented at any time with little or no notice.

What does the change mean? Employers still have time to complete and file applications under existing laws, until the changes take effect.

Implementation timeframe: Between now and June 1.
Visas/permits affected: All visa/permit categories.
Who is affected: Employers and foreign assignees in South Africa.
Impact on processing times: None at the moment, but delays are anticipated when the changes come into force.
Next steps: Foreign nationals applying for new or renewal permits can take advantage of the delay in implementation of the new regulations by filing applications as soon as possible.

Background: Immigration changes set forth in the Immigration Amendment Act were further defined in the new draft Immigration Regulations, which were published by the Department of Home Affairs last month for public comment. It was initially envisaged that the changes would come into force and effect by April 1. However, this date was not achieved and the changes are now anticipated anytime up to June 2014.

BAL Analysis: The amendments to the Immigration Act will introduce significant changes in the sphere of South African immigration. Employers should be mindful that the transition period may cause delays in processing.

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.

IMPACT – HIGH

What is the change? The South Africa Department of Home Affairs has published the much-anticipated draft Immigration Regulations that further defines proposed amendments under the Immigration Amendment Act of 2011.

What does the change mean? The regulations impose many new requirements and procedures for work permits and stricter penalties for non-compliance, including bars to reentry for visa overstays.

Implementation timeframe: The regulations could take effect as early as April 1, but may happen slightly later.
Visas/permits affected: Work visas, visitor visas, Section 11(2) work endorsements, relatives’ visas and others.
Who is affected: All foreign nationals.
Impact on processing times: It is too early to tell, but there are likely to be lengthy delays in the short run as the government transitions to the new rules.
Business impact: These represent significant changes that can add to cost and document preparation time.
Next steps: If feasible, companies should apply for work permits immediately, before the new regulations take effect.

Background: In late February, the Department of Home Affairs published the new draft Immigration Regulations. They are open for public comment and could still change before they are implemented. A new procedural step is that employers applying for General Work Visas must obtain a certificate from the Department of Labor stating that the employer meets various criteria of labor market testing. Only after the certificate is issued can the employer apply for the General Work Visa at the Department of Home Affairs. This implies that there is now a labor approval application process (which is yet to be defined) followed by the formal application process with the South African Department of Home Affairs.

Here are the other highlights of the regulations:

I. In-person appearance when submitting applications both in-country and abroad.

A major change is that foreign nationals must apply for a visa in person in South Africa at an overseas South African mission or visa center. This means that foreign nationals living in countries where South Africa does not have a mission may have to travel long distances to find the nearest post to file their visa application.

II. Short-term projects

The Section 11(2) endorsements allowing short-term work on a visitor visa will continue to be available, but the documentary requirements are more stringent and they will not be valid for longer than 90 days. Applicants must submit documents or statements evidencing the purpose and nature of the work, job qualifications, employment period and duration of stay, job location, proof of salary and name and contact information of the employer.

III. Police clearance

A foreign national visiting for tourism or business for longer than 90 days must provide a Police Clearance certificate from all countries where he or she has lived for 12 months or more since age 18.

IV. Strict extension and renewal deadlines

Foreign nationals applying to change or extend their visa status in-country must do so 30 days before their current visa expires – without exception – and submit their application in person. No incomplete applications will be accepted. If a foreign national fails to file on time, he or she must leave the country and file overseas. Foreign nationals holding visitor visas or medical treatment visas may only change status to another visa while in South Africa, under four “exceptional circumstances,” defined as medical treatment over three months, family members of work/business visa holder changing to a study or work visa, circumstances the Minister of the Department of Home Affairs deems reasonable, and a visitor required to testify as a material witness in a criminal proceeding.

V. Intra-company transfers

Intra-company transfer work visas will have a maximum duration of four years, instead of the current maximum of two years.

VI. Critical skills visa

A new critical skills visa category will replace the Quota and Exceptional Skills Work Permit categories. The list of critical skills categories will be published by the Minister of the Department of Home Affairs in the government gazette. A foreign worker must show proof of accreditation from a professional body registered with the South African Qualifications Authority (SAQA), which will evaluate his or her qualifications. The Department will no longer accept verification of a worker’s qualifications by universities.

VII. Study visas

Foreign nationals studying in South Africa must obtain a study visa. There will no longer be an exemption for student stays of less than three months. The draft regulations also propose stricter proof of registration with bona fide institutions, would allow only part-time work on a study visa up to 20 hours per week, and would eliminate work authorization to do practical training.

VIII. Occupations exempted from work visas

Foreign nationals working in certain jobs can obtain a visitor visa valid for up to three years under an employment contract with a foreign employer that partially requires work in South Africa. The regulations list 10 occupations, including teachers at international schools, visiting professors or lecturers, tour leaders, foreign journalists, artists and performers. The list includes a catch-all category for any activities the Director General of the Department of Home Affairs considers a benefit to society.

IX. Entry requirements

Entry requirements will be stricter. Foreign nationals must provide a local address, verify biometric data, and notify the Department of Home Affairs of any changes to their address or host within 48 hours. Parents traveling with children must carry a birth certificate for the children. If only one parent is traveling, he or she must have written permission from the spouse or, if divorced, a court order. These requirements also apply to adults traveling with children not theirs biologically.

X. Overstays

A foreigner who overstays a visa, even once, may be refused reentry for two to ten years, depending on how long he or she overstayed.

BAL Analysis: South Africa is generally taking a tougher stance on work visas for foreign employees, evidenced by stricter documentary requirements, in-person appearances, and stiffer penalties for overstays. In particular, the new police clearance requirements combined with the absolute deadline for submission of a complete application for extensions and renewals makes it imperative for companies to allow sufficient lead time. At the same time, the regulations leave many decisions to the discretion of the immigration minister, who can publish changes or additions to criteria at any time.

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.

IMPACT – HIGH

What are the changes? The South African government has amended its Immigration Act to further reform and enhance the existing legislation, and soon-to-be-released regulations are expected to significantly impact corporate employers and foreign nationals.

What do the changes mean? The Immigration Amendment Act will change the current work permit regime, require that foreign workers apply in-person, potentially create stricter criteria for labor market testing and intra-company transferees, and impose stiff penalties for non-compliance.

Implementation timeframe: Legislative amendments were initially made to the principal Immigration Act in 2011 and it has taken the Department of Home Affairs an extensive period to finalize the proposed Immigration Regulations. It is anticipated that the regulations to the amendments will be published in the month of February for public comment. All changes to the law are expected to take effect by June 1.
Visas/permits affected: All permits will now become known as visas. The changes will impact the following existing categories: General Work Permits, Intra-Company Transfer Work Permits, Exceptional Skills Permit, Quota Work Permit, Corporate Permits, and Exchange Permits.
Who is affected: Companies hiring and assigning foreign workers to South Africa.
Impact on processing times: None at the moment, but when the changes take effect, there are likely to be delays while all government ministries adapt to the new rules.
Business impact: Depending on how the new law is further defined in the Immigration Regulations, these broad changes may significantly impact foreign workers and corporate employers.
Next steps: Companies should anticipate major changes in the coming year. The Immigration Regulations are expected to be released in February for public comment and will further clarify how the changes will be applied on the ground. BAL will report on the Immigration Regulations as soon as they are published.

Background: The changes stemming from the Immigration Amendment Act are generally aimed at cracking down on abuse of the current legislation, refining the existing legislation to make it more effective in achieving its objectives, enhancing security and providing stiff penalties for non-compliance.

Anticipated changes

Intra-Company Transfer Work Permit. Most likely, the duration of this permit will be increased from two years to four years. It is also likely that more restrictive criteria will be imposed.
In-country change of status. Those entering South Africa as visitors will no longer be able to convert to a Work Visa unless there are “exceptional circumstances.”
In-person application. Foreign nationals applying for status within South Africa and from abroad will be required to appear in person to submit their applications.
Critical Skills Work Permit. The existing Quota Work Permit and Exceptional Skills Work Permit categories will be replaced by a new Critical Skills Visa category for foreign nationals who possess skills that are critical to South Africa.
Corporate Permits. Corporate Permits for companies employing large numbers of foreign nationals will become known as Corporate Visas. A foreign national will now be restricted to working only for the sponsoring entity specified on the Corporate Visa. This will impact third-party brokers that previously obtained Corporate Visas to hire foreign workers on behalf of companies. Certain industries will also be excluded from applying for Corporate Visas.
Overstays. A foreign national who overstays his or her visa may now be declared an “undesirable person” and will be barred from re-entering or obtaining temporary or permanent residence. A foreign national who wishes to re-enter will have to apply to the Director General of the Department to waive the “undesirable” designation.
Stiffer penalties for non-compliance. The Amendment Act also introduces much stiffer penalties for employers and foreign nationals for non-compliance with periods of imprisonment being increased to a period of between five and 15 years.

BAL Analysis: We anticipate that the Immigration Amendment Act will usher in major changes this year. Companies and foreign nationals should plan to confront generally more restrictive rules on work visas and slowdowns as the new rules take effect.

This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact GlobalVisaGroup@bal.com.

Holders of permanent residence permits will be required to secure a new form of identity document. The Department of Home Affairs launched the new Smart Identity Document (ID) cards on July 18. The card’s security features include holograms, laser engraving and a chip containing fingerprint and other biometric data. All new features are designed to prevent forging and tampering.

South African citizens and permanent residents will be asked to register for the new cards systematically, beginning with citizens age 80 and older. It has not yet been announced when foreigners with permanent resident status will be asked to apply for the cards. The Smart ID cards are scheduled to be issued to every citizen within the next eight years, replacing the green ID booklet. The new cards will take three days to process.

The Smart ID cards do not impact work permit holders, who will not be required to obtain them.

This alert has been provided by the BAL Global Practice group and our network provider located in South Africa. For additional information, please contact GlobalVisaGroup@bal.com.