Laws about foreign national employees have gotten stricter

May 28, 2014

 

Laws about foreign national employees have gotten stricter

JENNY REID
ARTICLES

In South Africa, foreign nationals working for your company – who don’t confirm their employment with the department of home affairs or whose visas have expired – could put you and your company at serious risk. This means that your HR department needs to get on top of this – fast. Here’s how to make sure that you’re not at risk.

If a South African company employees a foreign national, the company and employee have to confirm employment in terms of the Immigration Act. This has to be done within 90 days of arrival and then annually, otherwise the foreign national will face losing his or her work permit and compromising a chance at permanent residence. Recent amendments to the draft immigration regulations mean that if a foreign national overstay their welcome, on a valid visa, they could be banned from the country for up to 10 years.

There’s a heavy burden of proof on foreign nationals coming to work in SA

Foreign nationals coming in to South Africa on a general work permit must:

  • Give the director general of home affairs proof that the worker is still gainfully employed, and
  • Provide a job description for that employee.

If a foreign national comes in on a specials skills visa or quota work permit, give the director general of home affairs the following information about the candidate:

  • Proof of specialised qualifications,
  • Relevant experience and professional registrations,
  • The latest South African Qualifications Authority (SAQA) evaluation and registration,
  • A copy of their valid passport, and
  • Proof that they have secured employment in South Africa.

As part of the compliance process, provide a letter confirming continued employment, as well as a copy of the contract. If there is a change of employment, a release letter is needed from the previous employer as is a copy of the prior contract.

Tread carefully around the Immigration Act and the department of home affairs

There are serious problems in the specifications of the Immigration Act and dealing with the department of home affairs:

  • The act doesn’t prescribe how proof of employment must be filed. The format required is also not stated.
  • It’s extremely difficult to get an appointment, or to access, the department of home affairs’ centralised office in Pretoria. Unfortunately, this location is the only point of contact for foreign nationals.

A simple confirmation of employment has become a minefield of red tape and delays, which will most likely give your HR department endless headaches. The result of non-compliance can see the permit voided, the employee excluded from South Africa and cost the employer a great loss in terms of investment and talent.

Many employers don’t tell the department that they employ foreigners

The risk of being found out can outweigh the frustration of trying to collate, submit and verify the relevant documents. In many cases, the changes to the act and its regulations are stringent and, unfortunately, don’t have proper government administrative support or clarification. Paying a bribe or hiring through illegal means could end up damaging or even closing down a company in the long term.

In terms of specialised skills, a quota work permit is the only way for companies to issue contracts to suitable candidates. As long as the permit falls within the numbers outlined in the Government Gazette, the post doesn’t have to be advertised.

A foreign national doesn’t need an offer of employment to enter the country

So before issuing a contract to a foreign national, verify their documents. It’s essential to:

  • Have an international qualification verification, and
  • Confirm their membership of professional bodies.

Every CV has to be authentic and double checked so that SAQA approves it.

The changes to the draft immigration regulations, as of April 2014, mean that staying in South Africa on an expired visa will result in foreign nationals being declared undesirable for two years. Within 60 days, a three-year ban will be issued and over this period, a decade-long exclusion will be issued.

Unfortunately, the department of home affairs can’t always guarantee that visas will be issued on time considering the backlog and long waiting list. There is the real danger of a permit being cancelled for non-compliance. Even though a new practice – for applying to have an existing permit extended – this could just create more red tape and confusion.

 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

Jenny Reid is the owner of iFacts and started her career in the security industry in 1995, working her way up the corporate ladder. Early on in her career, Jenny developed a passion for employee screening and this is what drives her business today.

 

 

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