ICT work visa
An ICT work visa may be issued to a foreign national who is employed abroad by a business operating in South Africa in a branch, subsidiary or affiliate relationship and who by reason of employment is required to conduct work in the country. A foreign employment contract and letters of motivation from the related home and host entities confirming the purpose and duration of the transfer are required. The host entity should sufficiently motivate the foreign national to be in a position to transfer skills and knowledge to the host entity during the assignment period (he or she must submit a detailed skills transfer plan upon application) and will depart the country upon completion of the tour of duty.
The foreign national applicant must have worked for the home country entity for a minimum period of six months prior to becoming eligible for an ICT work visa.
A corporate visa is an approval granted to an employer to employ a predetermined number of foreign nationals within specific roles for a limited duration. Owing to the nature of the approval, a corporate visa requires the involvement and approval of the DoL, the DTI and the DHA.
Upon identification of a suitable foreign resource, the holder of the corporate visa must apply to the DHA for the issuance of an individual authorisation certificate to enable the foreign national to apply for an individual corporate work visa within a specific role or position.
The Act prescribes that a corporate visa may now only be issued to an employer operating within the prescribed national interest and further such employer must provide proof that at least 60 per cent of the total staff complement that are employed in the operations of the business are South African citizens or permanent residents employed permanently in various positions and such ratio must be maintained through the validity period of the corporate visa. A corporate visa may be issued for a period not exceeding three years and authorisation certificates to employ workers (individual corporate work visas) may not be issued for a validity period exceeding the validity period of the corporate visa held by the employer.
The Act prescribes a minimum financial guarantee to be posted by a corporate applicant to be 30,000 rand (subject to change) per foreign national employee that the corporate applicant intends to employ.
General work visa
A general work visa may be issued to a foreign national who is intending to take up direct employment with a South African entity. The Act now requires the prospective South African employer to submit an application to the DoL for a certificate confirming the following points:
- that despite a diligent search, the prospective employer has been unable to find a suitable South African citizen or permanent resident with qualifications or skills and experience equivalent to those of the applicant;
- the applicant has qualifications or proven skills and experience in line with the job offer;
- the salary and benefits of the applicant are not inferior to the average salary and benefits of citizens or permanent residents occupying similar situations in South Africa; and
- the contract of employment stipulating the conditions of employment and signed by both the employer and the applicant is in line with the labour standards in South Africa and is made conditional upon the general work visa being approved.
An evaluation of the foreign national’s academic qualifications by the South African Qualifications Authority (SAQA) is an additional requirement; however, this may be exempted in certain circumstances where a foreign national applicant does not have formal qualifications (or existing qualifications cannot be assessed for whatever reason) and his or her skills and experience are the defining criteria for the appointment.
The DHA may, upon application for exemption thereof, waive certain of the mandatory requirements for a general work visa.
Critical skills work visa
A critical skills work visa may be issued to a foreign national provided that such foreign national falls within a specific professional category or occupational class included in the critical skills visa list.
The key requirements include SAQA evaluation, registration with the relevant professional body or council and a letter of recommendation from the relevant professional body or council recognised by SAQA attesting to the skills and qualifications of the foreign national. (A directive issued in October 2014 has removed the need for the applicant for a critical skills work visa to submit the prescribed letter of recommendation from the applicable regulatory body in circumstances where the applicant has submitted proof of membership or application for membership with such regulatory body as part of his or her application. However, certain South African representatives abroad do not accept the directive, which affects the consistency of the application process.)
A critical skills work visa may be issued upon receipt of an offer of employment, or in the absence thereof; however, the holder of a critical skills work visa must confirm receipt of employment within a period of 12 months of obtaining the visa.
All foreign nationals are required to apply for the respective work visa either at the South African representative in their home country or country of long-term residence or the DHA within South Africa (only in certain defined instances as the majority of applications will now be submitted abroad). Foreign nationals will need to submit all prescribed personal supporting documentation including, but not limited to, birth certificates, medical and radiological reports and police clearance certificates.
The processing times are dependent upon the category of work visa and the place of submission and range from 10 to 60 working days calculated from the date of submission thereof. Foreign nationals are only allowed to commence working or seek work following the issuance of the respective work visa.
In addition to the Immigration Regulations, the Employment Services Act No. 4 of 2014 prescribes that skills transfer plans must be prepared with respect to all foreign national appointments, irrespective of the temporary residence visa category, and retained on the employee file.
In late 2018, a draft critical skills list was to be released for consultation with stakeholders. The revised list would essentially reduce certain categories, while expanding others, on the critical skills list. The final revised critical skills list has yet to be published and released for use.
The impact on applicants would be that those who previously qualified for critical skills may not qualify once the amended critical skills list is published and they would need to revert to the general work visa category where applicable. The inability to qualify for critical skills would also remove their eligibility to immediately apply for permanent residence as would have been possible under a critical skills visa.
For all categories, work can only begin once the applicant is in possession of the approved work visa and has travelled to South Africa to commence employment or the international assignment.
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