• South Africa Tightens its Immigration Laws
  • October 23, 2014 | Author: Rebecca B. Schechter
  • Law Firm: Greenberg Traurig, LLP - McLean Office
  • As we reported earlier this month, South Africa instituted some important changes to its immigration laws this year. South Africa has utilized the familiar “carrot and stick” approach in its immigration overhaul: while it has extended the validity of its major employment visas, South Africa has also imposed additional immigration compliance requirements and penalties on both employers and visa holders. Global employers should particularly be aware of the following:

    New requirements for all sponsoring employers. South Africa now requires all companies that employ visa holders to maintain the following on file: a certified copy of the foreigner’s passport; a copy of the visa or permanent residency permit; proof of the capacity in which the foreigner is or was employed; a copy of the foreigner’s IRP5 form or certificate of earnings and job description, respectively.

    First-time visa applicants must apply from abroad. South Africa will no longer accept change of status applications from visitor’s visa holders. These individuals must apply for their visas at the South African Embassy or Consulate abroad where the individual is a resident or citizen. Exceptions to this rule exist, including for accompanying spouses or children of business or work visa holders who are applying for a study or work visa.

    New rules for dependents. Previously, South Africa did not set a specific timeframe for spousal and life partner relationships, but the new regulations require the applicant to prove the relationship has existed for at least two years prior to the visa application. The new law also indicates that non-married partners will need to attend separate interviews to determine their relationship’s authenticity.

    Crackdown on visa overstays. South Africa no longer charges fines for overstaying. Instead, foreigners who remain in South Africa beyond the expiration of their visas may be declared “undesirable” and denied entry into South Africa. Foreigners may become undesirable even if they have a visa extension application pending. Employers may need to send their employees out of the country to avoid this harmful designation for their expat employees.

    New employer requirements for General Work Visas. In addition to obtaining a certificate from the Department of Labour to sponsor a foreigner for this visa, employers must agree to (1) pay for costs related to deportation of the foreigner; (2) ensure that the foreigner has a valid passport at all times; and (3) inform the Director General of Home Affairs if the foreigner is no longer employed. The duration of the General Work Visa increased from three to five years.

    Intra-company Transfer Work Visas. The foreigner must have worked for the related company abroad for at least six months. The duration of the Intra-company Transfer Work Visa increased from two to four years, but it cannot be extended.