Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The categories are dependent upon the employment relationship with the foreign national (direct employment with the South African entity or retention of employment with an entity abroad), the expected assignment or employment duration, the skills, qualifications and experience of the foreign national and the role to be performed by the foreign national within South Africa.

Intra-company transfer (ICT) work visas are utilised for the transfer of skills between affiliated entities where the foreign national retains employment with the group entity abroad. An ICT work visa may be issued for a period of up to four years.

Corporate visas may be issued to any employer demonstrating a need for a predetermined number of foreign nationals within specific roles for a limited duration to the satisfaction of the DoL, the Department of Trade and Industry (DTI) and DHA. The issuance of the visa is subject to such employer operating within certain industry sectors as prescribed in the national interest and possessing and maintaining a workforce comprising a minimum of 60 per cent South African citizens or permanent residents in permanent employment. An individual corporate work visa is issued to an individual foreign national based on the corporate visa held by the prospective employer.

General and corporate work visas are utilised where a foreign national commences direct employment with a South African entity. These work visas may be issued for a period of up to five years subject to the duration of the employment contract or the validity period of the corporate visa (held by the employer); however, additional labour law requirements, administered by the DoL, have recently been introduced.

A critical skills work visa is available for foreign nationals intending to take up direct local employment who comply with prescribed skills to facilitate the importation of foreign nationals holding specific skills to the benefit of South Africa. In certain instances, a critical skills visa may be issued to a foreign national, in the absence of a contract of employment, for a period of up to 12 months subject to the foreign national confirming securing employment within 12 months of the date of issuance of the visa.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

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.

Corporate 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.

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

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?

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?

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?

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.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

With respect to applications for temporary residence (work and visitors’ visas), there are currently no special routes for high net worth individuals or investors involving reduced lead times.

However, individuals or investors intending to permanently reside in South Africa may investigate applying under the minimum net worth category subject to meeting a prescribed minimum net worth (currently 12 million rand) and upon payment of an application fee of 120,000 rand.

Foreign nationals intending to establish a business in South Africa may apply for a business visa subject to meeting the prescribed requirements including a minimum capital investment (5 million rand) and proof or undertaking that 60 per cent of the employees directly employed in the business will be South African citizens or permanent residents.

Further, the Act prescribes that a business visa may not be issued or renewed in respect of any business undertaking that has been listed as undesirable in the Government Gazette after consultation between the Minister of the Department of Home Affairs and the Minister of Trade and Industry.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

See question 16.

Highly skilled individuals

Is there a special route for highly skilled individuals?

Yes, there are options available under temporary and permanent residence.

Temporary residenceCritical 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 as determined by publication by the DHA. The critical skills visa list, published in the Government Gazette (on 3 June 2014), includes several new categories, including information communication and technology (expanded list), business process outsourcing and retains engineers, life and earth science professionals and health professionals, among others.

A critical skills work visa may be applied for and issued upon receipt of an offer of employment or in the absence thereof; however, the holder of a critical skills work visa must confirm securing employment within a period of 12 months of obtaining the critical skills work visa.

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.

Permanent residence

Permanent residence may be granted to a foreign national, subject to any prescribed requirements, who demonstrates that he or she possesses extraordinary skills or qualifications under the circumstances or as may be prescribed. Accordingly, holders of critical skills work visas are able to apply for permanent residence in South Africa in the absence of any prescribed waiting period (subject to confirmation in practice owing to the recent implementation of the Amendment Act).

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

The only route available is a relative’s visa, which can be issued to children of South African citizens or residents intending to move to South Africa to take up permanent residence. As an immediate family member of a South African citizen or permanent resident, the individual may be issued a relative’s visa valid for a period of 24 months, which can be further extended as required. In addition, he or she may apply for permanent residence on the basis of being a relative of a citizen or permanent resident within the first step of kinship.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

There are no prescribed minimum salary levels for work visa applications.

However, applications for a general work visa, where the foreign national is taking up direct local employment with a South African entity must be accompanied by a DoL certificate confirming that the proposed remuneration is not less than what a South African citizen or permanent resident would receive for the same duties.

Resident labour market test

Is there a quota system or resident labour market test?

Under the general work visa category, there is an obligation for South African employers to confirm that there are no suitable South African citizens or permanent residents to fulfil a vacancy prior to offering same to a foreign national.

The South African employer is required to advertise the vacancy in the national printed media and provide details of all unsuccessful citizen or permanent resident applicants and the objective reasons why they were deemed unsuitable.

The above efforts must be included in the submission to the DoL for the issuance of the DoL certificate to proceed with an application for a general work visa. The DoL reserves the right to either accept the proof as submitted by the employer or to undertake an independent search of the local labour market and refer additional candidates to the employer for assessment.

To protect the interests of the local labour pool (unemployed citizens or permanent residents), the DoL has the right to decline to issue the certificate in circumstances where it believes the vacancy could be fulfilled locally by a South African citizen or permanent resident. The absence of the DoL certificate or a negative referral from the DoL would result in the general work visa application being unsuccessful.

An applicant for a corporate visa must provide proof that at least 60 per cent of the total staff complement that are permanently employed in the operations of the business are South African citizens or permanent residents. The holder of a corporate visa must ensure that the 60 per cent ratio will be maintained following the issuance of the corporate visa and subsequent appointment of the approved number of foreign national employees.

Shortage occupations

Is there a special route for shortage occupations?

Yes, the critical skills list specifies shortage occupations.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

A restriction that the applicant must have worked for the home entity for a prescribed minimum period of six months is applicable for ICT work visa applications

Third-party contractors

What is the process for third-party contractors to obtain work permission?

Third-party contractors will require a section 11(2) visitor’s visa for the initial maximum 90-day period, and potential extension thereof for a further 90-day period, subject to compliance with the qualifying criteria. However, the issuance of work visas to third-party contractors (sometimes viewed as labour broking by the South African authorities) is challenging and the circumstances of the employment role to be performed in South Africa and the recipient of the benefit for such services must be assessed prior to advising on the potential work visa categories.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

A SAQA evaluation is required for general and critical skills work visa applications (and may be requested for individual corporate work visa applications subject to the discretion of the adjudicating official). A letter of recommendation from a regulatory body recognised by SAQA is further required for the majority of critical skills work visa categories.

Certain professions further require a foreign national to register with the relevant professional council, body or board as part of the work visa process.