Foreign nationals working for your local company who don?t confirm their
employment to Home Affairs or have overstayed on a visa could put you and
your business at serious risk.
This is according to Jenny Reid, managing Director of iFacts.
If a South African company has employed 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 - or the
foreigner will face losing the relevant work permit and compromising a chance at
permanent residence. Furthermore, recent amendments in the Draft Immigration
Regulations mean that foreign nationals overstaying on a valid visa can result in
a ban of up to 10 years.
Heavy burden of proof
For foreigners coming in to South Africa on a general work permit, it is
necessary to be give proof to the Director General of Home Affairs that the
worker is still gainfully employed, and provide a job description. For those
foreign nationals coming in on a specials skills visa or quota work permit, it is
necessary to prove to the Director General of Home Affairs the following: 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, finally, that they have secured employment in
"As part of the process of compliance, the employer must provide a letter
confirming continued employment, as well as a copy of the contract,' explains
Reid. "If there is a change of employment, a release letter is needed from the
previous employer, as well as a copy of the prior contract.'
While this sounds like an accepted bureaucratic process, there are serious
problems in the specifications of the Immigration Act and dealing with the
Department of Home Affairs. Firstly, the Act does not prescribe how the proof of
employment must be filed. The format required is also not stated. Secondly, it is
extremely difficult to obtain an appointment or access to the Department of
Home Affairs? centralised office in Pretoria, which is allocated as the only point of
contact for foreign nationals.
"A simple confirmation of employment has become a minefield of red tape
and delays,' says Reid. "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.'
This is why many employers do not confirm employment of foreigners
working in the business to Home Affairs. "The risk of being found out can
outweigh the frustration of trying to collate, submit and verify the relevant
documents,' Reid believes. "In many cases, the changes to the Act, and its
Regulations, are stringent without 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, such as engineering, 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
does not have to be advertised. In fact, the foreigner does not need an offer of
employment to enter the country.
"Therefore, before issuing a contract to a foreign national, you will need to verify
their documents,' she says. "It is important to have an International
Qualification Verification; and confirm their membership of professional bodies.
Every CV has to be authentic and double checked, in order to obtain SAQA
The changes to the Draft Immigration Regulations, as of April 2014, mean
that overstaying on a visa will result in foreigners being declared undesirable for
two years. For 60 days, a three-year ban will be issued. Over this period, a
decade-long exclusion will be issued. "Unfortunately, Home Affairs can?t always
guarantee that visas will be issued on time, with a back log and long waiting
list,' Reid believes. "There is the real danger of a permit being cancelled for non-
compliance. Even though a new practice has been introduced to apply for the
extension of an existing permit, this could just create more red tape and
Submitting and confirming visas and work documents for foreign nationals
can be a time-consuming process. However, the conundrum is that there is not
always enough time to avoid penalties or bans.
"It?s important to remove as much risk in hiring foreigners as possible by
working with professionals who have the skills and services to verify and
validate relevant documents,' says Reid. "In forming the right security
partnerships, the company?s HR department can focus on assimilating the
employee into the company, and the employee can start his career with ease of
mind,' she concluded.