Corporate Immigration 2023 Comparisons

The South African Department of Home Affairs (DHA) is the government body responsible for the national implementation, administration and enforcement of South Africa’s immigration legislation, the Immigration Act 13 of 2022 (as amended) (the “Immigration Act”). During the past few years, the DHA has come under intensified pressure from the public and corporate sectors (particularly big business) in South Africa to:

• address the growing issue of poor and dysfunctional administration;
• create legislative and service delivery reforms that will enable better access to needed foreign skills and foreign investment in an increasingly globally competitive market; and
• allow the corporate sector greater participation and control in the immigration administration process.

The need for the DHA to work in partnership with the corporate sector – as opposed to being its adversary – cannot be over-emphasised.

Operation Vulindlela is a joint initiative by the Presidency and National Treasury of South Africa aimed at accelerating the implementation of structural reforms and support economic recovery in the country. Heeding the calls of big business, the initiative prioritises the reform of South Africa’s visa regime and – in keeping with this objective – the President announced an overhaul of the work visa system at the 2023 South African Investment Conference (SAIC) in a bid to boost foreign investments and attract the skills needed to do so. These changes and reforms are widely supported and eagerly anticipated.

While these improvements are being considered or implemented, South Africa continues to operate on the assumption that it is unable to manage illegal entry into the country. It is estimated that there are many illegal residents in South Africa, along with individuals misrepresenting themselves in order to claim political asylum status. Some political parties are calling for mass deportation on the basis that the country’s infrastructure cannot cope with the number of South African citizens needing public services, let alone provide for new entrants. There have been sporadic xenophobic incidents and riots targeting other Africans, who are viewed as unwelcome. 

As part of South Africa’s work visa overhaul, one of the immediate interventions recently announced by the DHA is the pilot of a Trusted Employer Scheme (TES) for qualifying, vetted corporate employers. With due regard for global best practices, the aim of the TES is to provide a flexible pathway for the expeditious and predictable issuance of work visas so that corporate employers can hire needed, skilled foreign nationals.

The scheme gives approved employers greater opportunity to obtain a pre-determined number of work visas for foreign resources that they deem necessary, with the DHA applying lower documentary requirement thresholds and faster processing when it comes to applications. On the other hand, non-compliance with the TES rules and regulations by any employer will be penalised if the non-compliance can be established by the DHA through an audit or immigration inspection. Employers found to be in breach of the TES rules and regulations face, among other things, potential financial penalties and a three-year ban on obtaining work visas for foreign nationals.

The TES pilot is currently only open to a maximum of 100 large investors in the South African economy that each have:

• more than 500 employees (of whom at least 60% must be South African citizens or permanent residents employed in various positions); and
• a minimum annual turnover based on a threshold determined by the industry sector (the lowest of which being R35 million for the agricultural sector).

Other recommendations still to be implemented include the introduction of a points-based system to streamline existing visa categories and the creation of a legislative framework for new visa categories for remote workers (digital nomads) and start-ups.

Finally, the critical skills list pertaining to the Critical Skills Work Visa scheme – through which the employment of foreign nationals with certain qualifications, skills and experience deemed critical to the South African economy is currently possible – will be updated more frequently to ensure it continuously reflects the skills requirements of the various industry sectors. For further details, please refer to 2.1 Sponsor-Based Employment Visas.

The Intra-Company Transfer category of work visa specifically provides for the temporary transfer of a foreign national who is employed abroad by a foreign company that has:

• a branch or subsidiary in South Africa; or
• an affiliate relationship with a South African business entity.

Visas in this category are restricted to a maximum period of four years, are not renewable, and only allow foreign nationals to work in the role to which they were transferred. Foreign workers may not permanently localise their employment during the transfer.

There are two types of work visa that can facilitate the direct employment of a foreign national by a South African business entity – namely, the Critical Skills Work Visa and General Work Visa.

As mentioned in 1.2 Upcoming Policy Changes, a Critical Skills Work Visa may be issued to a foreign national who possesses skills or qualifications deemed to be critical for South Africa. The prevailing critical skills list was published on 2 August 2022. To apply for this category of visa, the foreign national must prove that their qualification(s) and/or skills and post-qualification experience fall within the parameters of one of the critical skills categories (see 3.3 Minimum Thresholds: Sponsor-Based Employment Visas for further details).

A General Work Visa may be issued to a foreign national who does not qualify for a Critical Skills Work Visa. As a prerequisite for applying for a General Work Visa, the prospective employer must first conduct a labour market test and then approach the South African Department of Labour (DOL) for a letter confirming that the DOL essentially agrees with the employment of the foreign national because certain requirements have been met. This requires the submission of an prior application for the DOL to evaluate once the employer has conducted the labour market test. Subject to a favourable assessment, the foreign national may proceed to apply for their General Work Visa as soon as the DOL letter is issued. If the DOL assessment is not favourable, the foreign national may still apply; however, the DHA is likely to reject the application.

A foreign national who is the spouse of – or unmarried party to a permanent spousal relationship with – a South African citizen or permanent resident may apply for a Visitor’s Visa under Section 11(6) of the Immigration Act (“Visitor’s Visa 11(6)”), which is generally also known as a “spousal work visa” and allows for employment. Same-sex couples are treated equally. There are no specific requirements associated with this visa category in terms of labour market tests, qualifications, skills or experience.

There are currently no unsponsored work visa options in South Africa. In terms of its practices, the DHA requires a sponsoring employer for all work visa categories.

As regards investors, a Business Visa may be issued by the DHA for up to three years at a time to a foreign national who intends to invest in or establish – or has invested in or established – a business in South Africa through which they will be employed. When first applying to establish a new business, the foreign national must be in a position to invest a minimum of R5 million in cash (or a combination of cash and a capital contribution), which will form part of the intended book value of the business. This must be confirmed by a registered South African chartered accountant. The capital contribution may be reduced or waived for certain types of business that are deemed to be in the national interests of South Africa. There are also certain categories of business that are listed as undesirable and in respect of which a Business Visa may not be issued.

The application must be supported by a letter of recommendation from the South African Department of Trade and Industry (DTI) regarding the feasibility of the business and its contribution to the national interest of South Africa. This requires a prior submission and assessment by the DTI. Provided the assessment is favourable, the foreign national may proceed to apply for their Business Visa once the DTI recommendation letter is issued. The foreign national may still apply if the DTI assessment is not favourable – although it is likely that the DHA will reject the application.

The foreign national must provide an undertaking that at least 60% of the total staff complement will be South African citizens or permanent residents employed permanently by the business in various positions. Proof of compliance with this undertaking must be submitted within 12 months of the visa being issued. Further undertakings regarding registration with various South African statuary institutions – including, but not limited to, the South African Revenue Service, the Unemployment Insurance Fund, the DOL’s Compensation Fund for Occupational Injuries and Diseases, and the Companies and Intellectual Property Commission – are also required.

The holder of a Business Visa may only conduct work related to the business in respect of which the visa has been issued. Proof that the Business Visa holder has fulfilled the capital contribution requirement must be submitted to the satisfaction of the DHA within 24 months of the issuance of the visa and within every two years thereafter.

Similar requirements apply to a foreign national investing in a business that is already established in South Africa. However, the requirements will differ slightly, given that the business is already established, registered and operational.

Short-term visitors may be broadly categorised as either leisure and family visitors or business-related visitors. Neither the Immigration Act nor its regulations provide a definition of a business visit and associated permissible activities.

A visitor is not legally allowed to take up studies at a formal learning institution or to work. The Immigration Act has specific definitions for both “work” and a “learning institution”. Therefore, in this context, it can be deduced that a visitor’s activities are those that do not constitute formal studies at a learning institution or work.

The Immigration Act defines work as “any activity normally associated with the running of a specific business” or “being employed or conducting activities consistent with being employed or consistent with the profession of the person, with or without remuneration or reward” within South Africa. A simplified interpretation for a visitor is that, as soon as they start actively conducting their profession within the country, they are deemed to be working. Specific and limited business activities – such as business meetings or attending a conference, seminar, trade show or event as a participant – and others that are ancillary to a foreign national’s profession might generally be accepted as business-related activities.

A foreign national attending short and informal studies at non-qualifying learning institutions may be able to do so as visitor. However, foreign nationals wishing to pursue studies at a qualifying learning institution require a Study Visa.

There is currently no specific visa category that allows for remote work in South Africa. As noted in 1.2 Upcoming Policy Changes, the creation of a Remote Worker Visa category has been identified as one of the objectives of South Africa’s visa reform and is anticipated soon.

There are currently no language requirements applicable to any category of visa.

A foreign national intending to travel to South Africa from or through Yellow Fever-endemic countries must, unless in direct transit, be in possession of an International Yellow Fever Vaccination Certificate when applying for a visa abroad (if they do not hold the passport of a visa-exempt country) and upon arrival in the country.

A medical report, completed by a registered medical practitioner pursuant to a medical examination regarding the foreign national’s general state of health and noting any medical condition from which they might suffer, must be provided for all long-term visa applications. Previously, it was also necessary to provide a radiological report from a radiologist following a chest X-ray, confirming that the foreign national had no signs of active pulmonary tuberculosis. This requirement was recently waived by the DHA indefinitely, however – meaning foreign nationals are exempt from it for the time being.

There are no minimum qualification and experience requirements when applying for an Intra-Company Transfer Work Visa. However, the foreign national must have been employed by the foreign company for at least six months prior to the date of application for the work visa. A copy of their employment contract must be included in the application.

The sponsoring South African entity must undertake to ensure that a plan is developed for the transfer of skills to a South African citizen or permanent resident during the period of the transfer. Evidence of such a plan must be readily available for inclusion in the application.

An applicant for a Critical Skills Work Visa must prove that their qualification(s) and/or skills and post-qualification experience fall within the parameters of one of the critical skills categories by providing:

• written confirmation from a professional body, council or board recognised by the South African Qualifications Authority (SAQA) or any relevant government department, thereby verifying the foreign national’s skills or qualifications and appropriate post-qualification experience;
• proof of application for a certificate of registration with a professional body, council or board recognised by SAQA (if required by law); and
• proof of evaluation of foreign qualifications by SAQA and, if applicable, certified translations of their qualifications into one of the official languages of South Africa by a sworn translator.

In the case of an application for a General Work Visa, as noted in 2.1 Sponsor-Based Employment Visas, the prospective employer must first conduct a labour market test and then approach the DOL for a certificate confirming that it essentially agrees with the employment of the foreign national. Following its own assessment, the DOL must confirm that:

• despite a diligent search, the sponsoring 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 foreign national;
• the foreign national has qualifications or proven skills and experience in line with the job offer;
• the salary and benefits offered to the foreign national are not inferior to the average salary and benefits of South African citizens and permanent residents occupying the same or similar positions in South Africa; and
• the contract of employment stipulating the conditions of employment signed by both the employer and the foreign national are in line with labour standards in South Africa and made conditional upon the General Work Visa being approved.

Proof of evaluation of the foreign national’s qualifications by SAQA is also recommended as part of a General Work Visa application, as are certified translations by a sworn translator into one of the official languages of South Africa (where applicable).

As mentioned in 2.1 Sponsor-Based Employment Visas, there are no minimum qualifications and/or experience requirements for the foreign spouse of a South African citizen or permanent resident applying for a Visitor’s Visa 11(6). However, once issued, the visa is entirely conditional on the continued existence of the marriage or spousal relationship. The visa is issued primarily based on the foreign spouse being the spouse/partner of a South African citizen or permanent resident.

Intra-Company Transfer Work Visas and General Work Visas are always restricted to the sponsoring employer. Equally, in terms of its current practices and although legally it need not do so, the DHA generally limits the holder of a Critical Skills Work Visa to working for a particular employer by endorsing its name on the work visa label. A foreign spouse issued a Visitor’s Visa 11(6) may be restricted to working for a specific employer, but this is not always the case. It depends on whether the DHA endorses the employer’s name under the visa conditions on the visa label.

Applications for short-term Visitor’s Visas (ie, visas for up to 90 days) submitted at South African consular missions abroad are generally processed in five to ten business days. Long-term visa applications can take between four and eight weeks to process; however, this depends on the South African mission and its workload. Long-term visa applications submitted to busy South African missions – for example, those located in India and Nigeria – can take two to three months (or, at times, even longer) to process, whereas those submitted to low-volume missions may be processed in less than four weeks.

As of May 2023, applications submitted to the DHA from within South Africa can take many months to process, owing to a serious and persistent backlog of applications. Processing times locally are highly unpredictable and delays should be anticipated. When there are no backlogs, applications submitted locally are generally processed in two to four months.

Once a foreign national applies for a visa abroad in order to authorise them to conduct a specific activity in South Africa, they may not seek admission to the country to commence conducting that activity – or any other activity for which they require a visa – unless or until they are in possession of the required visa. The submission of the visa application alone does not grant the foreign national any entitlement to start conducting the permitted activities specified in the visa prior to its issuance and their successful admission to the country.

There is no formal expedited/fast-track option for any visa processing available. Within South Africa, there are corporate premium service visa application centres operated by VFS Global, which accepts visa applications for the DHA from foreign nationals associated with registered corporate companies. These applications are generally processed within a shorter time period than those submitted at the regular public visa application centres, but there is no specific, guaranteed expedited processing time.

Once a foreign national is issued their South African visa abroad and presents it upon admission to South Africa, there are no post-arrival steps or requirements. The visa constitutes the foreign national’s entire immigration status as soon as it is endorsed with an entry stamp by an Immigration Officer upon arrival of the foreign national in the country.

The government fee for any work visa is currently R1,520 (or its approximate equivalent in a foreign currency) when an application is made at a South African mission abroad.

Applications submitted from within South Africa also attract additional visa application centre (VAC) service fees of R1,550 per application submitted at a public VAC and R2,550 per application submitted at a corporate premium service VAC.

Certain South African missions abroad also make use of VACs operated by VFS Global – for which additional service fees apply and vary, depending on the country of application.

In South Africa, costs for an employment visa can be paid by the individual rather than the employer. Either party may pay for the visa costs; it does not make a difference.

Enforcement action may be taken by the DHA in any instance where it discovers that a provision of the Immigration Act has been contravened.

In terms of general immigration inspections and enforcement, immigration compliance inspections at corporate entities by the DHA currently tendto be reactive – as opposed to structured, predictable and systematic – in the majority of incidences (albeit not all). Inspections do take place and usually attract media attention. Notably, however, the inspections appear to be triggered by tip-offs or complaints that the DHA receives from aggrieved parties and then acts upon. Inspections may also be triggered in instances where applications submitted by employees of companies contain suspicious statements and give sufficient rise to question the integrity of the sponsoring employer.

The DHA has previously indicated that it intends to implement structured random inspections of corporate companies. As such, the DHA advises that employers should be familiar with legislative provisions and the duties and obligations placed on them in relation to the employment of foreign nationals.

The Immigration Act places a duty on an employer to make a good-faith effort to ensure that no illegal foreigner is employed by it and to ascertain the status or citizenship of those whom it employs. Legally, no person may employ:

• an illegal foreign national;
• a foreign national whose status does not authorise them to be employed by such person; or
• a foreign national on terms and conditions or in a capacity other than those outlined in their status.

A “good-faith effort” is not defined in the Immigration Act. Nonetheless, an employer should – at the very least – request proof of government-issued photo identification. If it is established that the individual is a foreign national, the employer should then seek to establish that person’s immigration status by requesting evidence of such status, which must be examined closely to determine potential restrictions.

If an employer employs a foreign national who is an illegal immigrant or whose visa status or visa conditions did not allow them to be employed, it will be presumed that the employer knew this was the case at the time of hiring. The burden of proof will then be on the employer to prove that it employed the person in good faith and made a good-faith effort in the first instance. Stricter compliance is required of any employer who employs more than five employees or who has previously been found guilty of an offence.

If an illegal immigrant is found on any premises where business is conducted, it is automatically presumed that the foreigner is employed by the person who has control over the premises. The burden of proof is then on that person to provide sufficient compelling evidence to the contrary.

Employers are legally required to report the termination of the foreign national’s employment and/or any breach on the part of the foreign national of their visa status/conditions to the DHA. They are also required to keep the following on record for at least two years after the termination of the foreign national’s employment:

• a certified copy of their passport biodata page(s);
• a copy of the relevant visa or other legal authorisation that permits work/employment, permanent residence permit, or other status permitting work;
• proof of the capacity/position in which they were employed; and
• copies of their IRP5 form or certificate of earnings and job description, respectively.

Save for necessary humanitarian assistance, no employer or person may aid, abet, assist, enable or in any manner help:

• an illegal foreign national; or
• a foreign national in respect of any matter, conduct or transaction that violates their status.

Where applicable, this includes:

• conducting any business or carrying on any profession or occupation in co-operation with them;
• assisting, enabling or in any manner helping them to conduct any business or carry on any profession or occupation; and
• doing anything for them or on their behalf in connection with their business or profession or occupation.

In any criminal proceedings, it is no defence to aver that the status of the foreign national concerned – or whether they were an illegal foreigner – was unknown to the employer if it is proved that the employer ought reasonably to have known the status of the foreigner or whether they were an illegal foreigner.

An employer that is found guilty of an offence relating to failure to comply with one or more of its duties and obligations will be liable on conviction to a fine or to imprisonment for a term not exceeding five years.

An employer who knowingly employs an illegal immigrant – or a foreign national in violation of the conditions of their visa status (or any other provision of the Immigration Act) – will be guilty of an offence and liable on conviction to a fine or to imprisonment for a term not exceeding one year. If the employer is convicted a second time, the offence is punishable by either imprisonment for a term not exceeding two years or to a fine. The third or subsequent conviction is punishable by imprisonment for a term not exceeding five years (without the option of a fine).

When applicable, the amount of the fine imposed is determined by the court.

As noted in 6.2 Employer Obligations, the employer is required to make a good-faith effort to ensure that it does not employ illegal immigrants and to ascertain the status or citizenship of those whom it employs.

Dependants are limited to spouses and dependent children. Parties to a legal marriage or civil union under the laws of South Africa or a foreign country or to a customary union under the South African Recognition of Customary Marriages Act may be recognised as spouses.

Unmarried same-sex/opposite-sex partners who are parties to a permanent spousal relationship also qualify for recognition as spouses, provided that:

• their relationship has existed for at least two years prior to the date of application for the visa; and
• neither party is still party to a legal marriage or any other legally recognised union/spousal relationship.

Spouses of those who hold work visas do not have an automatic entitlement to work in South Africa. They may, however, apply for a Critical Skills Work Visa or General Work Visa in their own right from within the country, if they are able to meet all legal application requirements.