Employers in South Africa are often hard pressed to find the necessary (and scarce) skills to fill selected roles within their organisation. Employing expats of course comes with its own set of rules and the line is often blurred in terms of who bears responsibility between the expat or the employer.
In addition to ensuring a lawful work visa for the appropriate foreign national has been obtained, the employer is further responsible to ensure that they, as an organisation adhere to the responsibilities when employing a foreign national. 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 expat at all times complies with the conditions and validity of their visa ensuring it coincides with their job title, employer and intention whilst in South Africa.
In the event that an employer wishes to employ a foreign national 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 expat is promoted or their job title changes?
Work visas, regardless of the category, will in most cases contain the job title of the expat as a condition to the visa i.e. the visa is conditional on them being employed in a certain position. When their job title 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 directly to verify the visa in question.
What if the employee has an invalid visa?
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 Department of Home Affairs any breach from the foreigner’s side of his or her status; and/or reporting to the Department of Home Affairs 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. If you need assistance with obtaining a visa in South Africa, it’s always better to work with a trusted Immigration firm. Make sure you get in touch with one of our consultants today!
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