Outside Risk — How to avoid harming current work permits for foreignersSubmitted by Jenny Reid
Outside Risk — How to avoid harming current work permits for foreigners 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 South Africa. “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.”
Red tape 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.”
Risky Business 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 approval.”
Visa Declined 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 confusion.” 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