Amendments to the Immigration Act No.13 of 2002 make it possible for an Immigration Engagements Accountant to issue certificates for Business Visa purposes. Whereas before only registered CA(SA) could perform this function.
He made this statement while presenting at a recent event, alongside Moeketsi Seboko, Immigration Manager of Xpatweb, to highlight the latest updates and expected changes within the DHA, as well as the expectations of South African companies employing foreign nationals.
This follows the DHA having picked up several incidents of companies employing foreign nationals without proper vetting of the required work visas.
Makhalemele also urged employers to keep a copy of the Immigration Act, no 19 of 2002, as amended (the Act) on their premises to ensure that they are adhering and complying with the stipulated regulations when employing foreign nationals.
The Act evidently states that an employer may under no circumstances employ a foreign national without the correct visa. Although employers may never be certain on the validity of their foreign employees’ visas, it is recommendable to do an immigration audit to ensure they are currently compliant and that the necessary policies are put in place so that correct processes are followed with new foreign national employees.
Closing the gap
Makhalemele further noted that the immigration system in South Africa is no longer purely dictated by the DHA and appealed to employers to give their input and cooperation to enable continuous improvement and thereby position the country to reach its economic goals.
After all, foreign nationals play an important part of the country’s success by bringing in the necessary skills required for high-demand projects. It is therefore imperative that employers understand the importance of their role within the South African Immigration law.
Employer Duties and Obligations
Makhalemele placed emphasis on the ‘Duties and Obligations’ of employers, reiterating that entities employing foreign nationals without the required valid work visa are viewed by the Department as knowingly “aiding and abetting” the illegal foreigner on their premises and will therefore be liable to certain penalties.
Presumably, the person whom will be deemed responsible for the aforesaid implications, will be the Human Resource Manager and/or the person responsible for the company.
Click here for the Immigration Act
Click here for the presentation by Ben Makhalemele
Click here for the presentation by Moeketsi Seboko
Department of Home Affairs to Enforce Legal Immigrant Employment
WHAT ARE THE EMPLOYERS’ RESPONSIBILITIES?
In addition to ensuring a lawful work visa for the appropriate foreigner has been obtained, the employer is further responsible to ensure that they, as an organisation adhere to the responsibilities when employing a foreign national as per the Immigration Act of 2002, as amended (The Act).
The Act in Section 38 stipulates as follows –
“No person shall employ –
In a nutshell, the Employer is responsible to ensure that the foreign employee, holds and maintains the necessary, appropriate and valid work visa and complies with any and all conditions imposed there upon. Accordingly, it is essential that the expatriate at all times complies with the conditions and validity of his/her visa ensuring it coincides with his/her job title, employer and intention whilst in South Africa.
In the event that an employer wishes to employ a foreigner who does not hold a valid visa, sensibly it will be the employer’s responsibility to ensure that the relevant visa is obtained prior to the commencement of employment – the employer may sponsor the process to ensure the visa is obtained in a timely and lawful manner.
WHAT IF THE EXPATRIATE IS PROMOTED OR HIS JOB TITLE CHANGES?
Work visas, regardless of the category, will in most cases contain the job title of the expatriate as a condition to the visa i.e. the visa is conditional on him/her being employed in a certain position. When his/her job title thus changes, whether due to restructuring, a promotion etc. the employer is required to apply for a change of conditions. The Department will then issue a new visa with the new job title assuming that the candidate still complies with all statutory requirements.
HOW DO EMPLOYERS KNOW IF THEIR EMPLOYEES HOLD VALID VISAS?
Understandably, where the employer was not involved with the visa application process directly or through their service provider, there may be uncertainty in terms of the validity of their foreign employees’ visa as often it wouldn’t be within their spectrum of knowledge. Should this however be the case, employers may approach an Immigration firm and/or the Department of Home Affairs (DHA) directly to verify the visa in question.
EMPLOYEES WITH INVALID VISAS – WHAT NOW?
Every so often, employers find themselves in unprecedented situations whereby their foreign employees hold fraudulent visas and/or no visa at all.
It is important that the employer approaches the situation in a correct and timely manner by –
WHAT ARE THE CONSEQUENCES?
It is worth noting that should the employer not adhere to the responsibilities as set in terms of the Immigration Act, the corporation will face penalties applicable to the breach of regulations –
It is thus vital for employers to become more vigilant pertaining to the responsibilities that are required when employing a foreigner, as it could become a nail-biting experience.
Click on the button below to view more on the responsibilities of an employer – extract from the presentation by Department of Home Affairs, Ben Mahlamele.