June 23, 2014

Last month, in what many considered to be a surprise announcement, the South African Department of Home Affairs (DHA) confirmed that the new Immigration Regulations had been finalized and would come into force on June 1, 2014. The new Immigration Regulations included many of the anticipated changes to general immigration process steps and requirements, changes to several work visa categories, and increased penalties for non-compliance and overstays.

Implementation Consultation 

Although the new rule changes had been heavily discussed since the beginning of 2014, when the draft regulations were first published for public comment, implementation itself was not expected until mid-2014 at the very earliest. Even with the publication of the supporting Government Gazette, DHA Offices throughout South Africa and the South African Consulates abroad were reportedly not sufficiently trained or well-versed with the new regulations. Sources can confirm that delays and confusion continue to persist regarding the immigration changes.

Employers and applicants alike should be aware that extreme delays in processing times for applications filed at the South African Consulates abroad, as well as applications filed at DHA offices within the country, are likely for the upcoming weeks and months. The immigration officers will need this time to receive the necessary training and adjust to the new regulations, much less beginning to streamline their own adjudication processes again.

What’s Changed?

General Changes 

• New Visa and Permit Terminology: The word“visa” will replace the word “permit” in all instances except in the case of Permanent Residence Permits, including for the formerly-named Work and Visitor Permits. The aim of this change is to further designate between the shorter-term visas and long-term permanent residence.

Restrictions to In-Country Change of Status: It is no longer possible to change status from a Visitors Visa (or Medical Treatment Visa) to any other permit type from within South Africa; rather, initial applications must be filed in-person at the a South African Consulate General abroad. In other words, individuals in South Africa on a Visitors Visa will be required to exit the country and re-apply for the new status/permit at a consulate abroad.

Please note, family members accompanying a foreign employee on assignment are also ineligible for any in-country change of immigration status. The only exception to this new restriction are spouses or children of foreign employees who are changing status to a Work or Study Visa.

Work and Residence Visa Renewal Timelines Strictly Enforced: All renewal applications must now be filed at least 60 days before the expiration of the applicant’s current permit; however, it is strongly encouraged to begin the renewal process at least 5 months in advance of the visa’s expiration date. For visas issued for a period of less than 30 days, the applicants must file their renewals at least 7 days before the expiration of the currently-held visa.

Applicants who fail to file their renewal applications within the above-listed timelines will be required to exit South Africa and re-apply for a fresh visa at a South African Consulate General abroad.

Spousal Visa Criteria Changed: Previously, unmarried spouses (including same-sex partners) of citizens or Permanent Residence holders were required to demonstrate that they had been living together when applying for a temporary residence visa. Under the new Immigration Regulations, however, this requirement has been increased to two (2) years of living together. Unmarried partners will be required to attend interviews (both together and individually) on the same date and time to establish their relationship. Spouses or life partners of South African citizens or Permanent Residence holders can apply for permanent residence when they are married for more than 5 years or together for the same period of time.

Unabridged Birth Certificates Required for Children Traveling Internationally: In efforts to combat child trafficking, abduction, and kidnapping, the DHA has also announced that parents traveling internationally with children (to and from South Africa) will be required to present unabridged birth certificates each traveling child. Birth certificates must show names of both parents. For children traveling with legal guardians, the adults will be required to present affidavits from the parents granting the children permission to travel internationally.

Depending on the issuing authority, unabridged birth certificates can take upwards of 6-8 weeks to obtain.

Please note: The DHA has confirmed that this requirement will come into effect on October 1, 2014, to provide a grace period for parents and their school-aged children to travel to and from South Africa during the school holiday season.

Increased Penalties for Non-Compliance and Overstays: Finally, the monetary fines, and in some instances criminal charges, against companies and foreign nationals for non-compliance with the new immigration laws have been significantly increased by the South African authorities. Furthermore, individuals who stay beyond the validity of their visa or permit (even first time offenders) may be classified as “undesirable” and barred from re-entering the country for 1-5 years.

 Consular Changes            

In-Person Appearance Required for All Visa Applications: Upon filing any visa application at the South African Consulate General abroad, the applicant will now be required to appear in person at the time of the filing to submit his/her biometric data. Previously, applicants were able to lodge application packages via mail or a third-party visa agent; however, this will no longer be permitted.

Visa Applications Must be Filed In Full: Previously, it was possible at many South African consulates to file a nearly-completed package to begin the adjudication process with the application approval being subject to future submission of the remaining documentation. However, under the new regulations, this will no longer be permitted: all required documentation, including police clearance certificates, must be completed and filed at the same time on the day of the submission.

Police Clearance Requirements: All foreign nationals who intend to reside in South Africa for more than 3 months will now be required to submit national police clearance certificates with their visa application. This includes individuals applying for Tourist and Visitors Visas.

Work Visa Changes 

General Work Visa: Applicants must now submit a Letter of Support from the Department of Labor confirming that a Labor Market Test was performed in search of a South African national to take the position, and that the foreign employee holds the right qualifications and skills. 

Intra-Company Transfers: Several changes to the Intra-Company Transfer (ICT) Work Visa were implemented in the new regulations. Most notable is that ICT Work Visas will now be granted for a maximum validity of four (4) years, rather than the previous maximum of two (2) years. For current ICT Work Visa-holders, there will be an option to renew their current work visa for an additional two (2) years, but this additional application must be submitted abroad.

In addition, foreign employees must be employed by a related, foreign entity for at least six (6) months before he/she is eligible for the ICT Work Visa.

Section 11(2) Visitors: Further to our May 15 Global Brief, all Section 11(2) visa applications must be filed in-person at a South African Embassy or Consulate General abroad.

New Critical Skills Visa Introduced: The Exception Skills and Quota Work Permits have been repealed and merged into the newly-created Critical Skills Visa. This new visa allows qualifying foreign employee in certain “critical” occupations apply for work authorization in South Africa through a streamlined process with fewer company and employee document requirements. The list of Critical Skills is quite lengthy, but does include occupations such as specific types of engineers, senior-level financial management, specialized IT positions, specialized technicians, and well-qualified scientists and researchers.

Corporate Visa: While certain qualifying South African companies may still apply for a Corporate Visa that allows the company to employ a specific number of foreign employees for up to three (3) years, the requirements for this visa option have increased dramatically. The sponsoring company will be required to submit significant supporting documentation for this application including, but not limited to, the business’ need for such employees, job descriptions of the relevant positions, remuneration details, etc.

Once the Corporate Visa has been issued to the company, the relevant foreign nationals will be able to apply for their individual Work Visas on a fast-track basis.

ACTION ITEMS FOR EMPLOYERS

All companies operating within South Africa who currently sponsor foreign employees, or who plan to do so in the future, should take careful note of these recent major immigration changes. The new Immigration Regulations as published by the authorities have significant implications for both current foreign employees working in South Africa, as well as future assignments to the country, and affect all aspects of immigration: Work and Residence Visas, business travelers, renewal applications, and penalties for breaches of the new laws.

In addition, employers should expect significant delays in processing times for the upcoming weeks as the DHA and Consular officers receive further training on the new regulations, and streamline their own processes. The sudden nature of the implementation has increased the normal uncertainty surrounding any major change such as this one.

Pro-Link GLOBAL’s Immigration Specialists and our PLG | KGNM Correspondent Office in South Africa are experts in South African immigration and will continue to guide you and your employees through the immigration process amid these changes. We are monitoring the situation closely and will report on any further updates as they are made available.

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Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Pro-Link GLOBAL’s Knowledge Management team. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in South Africa to provide you this update.

Information contained in this Global Brief is prepared using information obtained from various media outlets, government publications and our KGNM network of immigration professionals. Written permission from the copyright owner and any other rights holders must be obtained for any reuse of any content posted or published by Pro-Link GLOBAL that extends beyond fair use or other statutory exemptions. Furthermore, responsibility for the determination of the copyright status and securing permission rests with those persons wishing to reuse the materials. Interested parties are welcome to contact the Knowledge Management Department (km@pro-linkglobal.com) with any additional requests for information or to request reproduction of this material.