Corporate visa

Source: SAMI, 31/10/2019

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.
Period of stay
What are the general maximum (and minimum) periods of stay granted
under the main categories for company transfers?
South Africa Sa Migration International
An ICT work visa may be issued for a period of up to four years and is
not renewable from within South Africa.
General and critical skills work visas may be issued for a period of up
to five years.
Corporate visas (held by the employer) are issued for a period of up to
three years and are not renewable - a new application would need to be
submitted.
Individual corporate work visas may not be issued for a period
exceeding the validity period of the employer’s corporate visa and are
thus limited to a maximum period of three years subject to the validity
period of the corporate visa held by the employer at time of
application and the duration of the employment contract.
Existing work visas granted under the previous Immigration Act will
remain valid until the expiry date of the respective visa, following
which the foreign national will be required to either extend the work
visa (if the category allows for same in terms of the Act) or apply for
a new category of work visa.
All work visa validity periods will be restricted to the validity
period of the applicant’s passport if such passport is valid for less
than the maximum validity period available under the respective work
visa category.
Processing time
How long does it typically take to process the main categories?
South Africa Sa Migration International
Submissions to the South African representative abroad take an average
of 10 to 60 working days for finalisation, calculated from the date of
submission thereof; however, this is dependent upon the country of
submission.
Submissions to the DHA in South Africa, through VFS Global Visa and
Permit Facilitation Centres, take an average of 30 to 60 working days
for finalisation calculated from the date of submission thereof.
Staff benefits
Is it necessary to obtain any benefits or facilities for staff to
secure a work permit?
South Africa Sa Migration International
There are no prescribed benefits or facilities for applicants intending
to apply for a work visa to South Africa; however, certain South
African representatives reserve the discretion to request proof that
the applicant will be provided with medical insurance and accommodation
upon arrival in South Africa when adjudicating temporary residence visa
applications.
Foreign nationals intending to study in South Africa require proof of
medical insurance coverage for South Africa (international medical
coverage accepted if under the age of 18) when applying for the
required study visa.
Assessment criteria
Do the immigration authorities follow objective criteria, or do they
exercise discretion according to subjective criteria?
South Africa Sa Migration International
The mandate of the DHA is to assess all applications on an objective
basis against the criteria and requirements defined in the Act and
Regulations thereto.
Discretion is exercised by officials during the interpretation of the
Act and Regulations, which may result in a request for additional
documentation, outside of the prescribed requirements, clarification of
documentation submitted and inconsistent adjudication.
www.samigration.com