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IMPACT – MEDIUM
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.
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? 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.
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.
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:
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.
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.
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.
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.
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.
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.
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
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.