17 Aug Restrictions Making It Difficult to Hire Foreign Workers on the Basis of a General Work Visa

The South African labour market is no stranger to foreign nationals. Despite the fact that some occupations may have a higher likelihood of hiring foreigners due to their particular trade (in the form of critical skills or intra-company visas), all occupations and all employers must abide by the laws governing the employment of foreigners.

The Department of Labour and Employment (DEL) has published an annex to the South African Immigration Rules which ensures that all applications for general work visas first need to be reviewed by them. To minimise any administrative delays in the processing of visa applications, employers must make sure they adhere to the new standards. The new annexure makes “uncertainty” regarding the DEL’s participation in the visa application process clear, elevating it to crucial stage.

In contrast to what was the case before the annexure, there is now a mandatory preliminary procedure that must be undertaken before work visa applications are submitted to Visa Facilitation Services (VFS). An employer was previously obligated to submit a job opening to the DEL for registration and they were also compelled to interview any applicants the department forwarded to them. A visa application must be submitted to the DEL for review in accordance with the revised annexure in order to fill the position.

Before submitting a visa application to VFS, the client employer, not the foreign worker, is required to complete the following preliminary measures.

• The employer is required to fill out a registration form and submit it to the DEL to register the job opportunity.
• After submitting the employment opportunity form, the DEL will make an effort to connect the business with qualified candidates. The client employer must let the DEL know if any of the candidates it recommended have found employment.
• Along with the appropriate supporting documentation, the completed visa application form must be delivered to the relevant DEL provincial office. The client employer must give the DEL its contact information and company address together with the visa application in order for the DEL to conduct future compliance audits.
• After the employer submits the visa application to the DEL and the DEL submits a recommendation certificate to the Department of Home Affairs, the employer will receive a “visa finalization notification” through email.

A general work visa application can only be submitted to the DHA by the employer after receiving notification from the DEL. An estimated 30 working days are needed for the DEL to process the paperwork surrounding a general work visa. Employers will also be asked to confirm that all foreign employees have valid work visas that have been legitimately requested and issued and it is likely that an on-site visit will take place.

The department’s new strategy was made necessary by years of individuals and companies disobeying the Immigration Act’s requirements by routinely hiring foreign nationals without legitimate work visas. It is important for employers to understand that they are not allowed to use unlawful immigrant workers in accordance with the Immigration Act. Because of the government’s “zero-tolerance” policy, employers who are found to have broken the Immigration Act can be criminally charged in terms of the Immigration Act and face fines or jail time.