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10/05/2018

Tasia Brummer - Department Of Home Affairs To Enforce Legal Immigrant Employment

Tasia Brummer, Immigration Specialist at Xpatweb

Companies may expect "a knock on the door" from the Department of Home Affairs (DHA) to conduct required audits and investigations on their employment practices of immigrant workers, Assistant Director from the DHA's Corporate Account Unit, Ben Makhalemele has warned.

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.

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 the holder being employed in a certain position.

When their 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 -
Reporting to the DHA any breach from the foreigner's side of his or her status; and/or
Reporting to the DHA that the foreigner holds (or does not hold) a valid / invalid / fraudulent visa and the organisation and is willing to rectify the matter by assisting the foreigner with obtaining the necessary work visa.
It is 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.

Should you require assistance with the validation of visas, please contact contact@xpatweb.com

 Tasia Brummer Home Affairs To Enforce Legal Immigrant Employment.JPG
 Tasia Brummer Home Affairs To Enforce Legal Immigrant Employment.pdf


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